That's the way the cookie crumbles

Compliance: dontcha love it?

Well, we're doing our utmost to comply. We wouldn't be legal if we didn't. Comply with the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) that is, which require all websites to declare their use of "cookies" (electronic data-storing files) which track users' "clicktivity" on their sites, ie what they click on, and where it takes them, as well as details such as user preferences etc. This is theoretically intrusive, but in practical terms helps both user and provider to get more and better use out of the website.

ICLR uses cookies for a number of reasons on its website. These include "session cookies" which expire when the user session is over, "persistent cookies" (which don't expire at the end of the session) and "secure cookies" which protect the transmission of secure financial information. These various cookies are needed to enable the free WLR Daily case summaries to be searched for and retrieved from the database where they are stored. They are needed to enable customers to access the subscription products and PDFs which they have already paid for, and to purchase and pay for new subscriptions or single case PDFs. But some of them are used to enable ICLR to gather data about the way people use its website, with a view of helping ICLR to improve the user experience. Obviously this has a marketing value, but that is directed to improving ICLR's marketing. It is not sold to third parties. And there's nothing secret about the way we use the data we gather: it's all set out in black and white in our terms and conditions and privacy and cookies policy.

But laws are there to be complied with, and the law now says we must "show and tell". Sic biscuitus disintegrat, as we say in the law (that's the way the cookie crumbles). So don't be surprised if you see a pop-up banner when you first arrive at www.iclr.co.uk informing you that cookies are used on the website, and inviting you to record your consent. If you do so, the banner will disappear. 

A complete explanation of what cookies are used, and why, will be provided; and it will be possible to make some (but probably rather limited) use of the site without cookies being allowed to function, which can be done by changing the settings on your browser. Otherwise, continued use of the site may be taken as implied informed consent.

In the meantime, there is a humorous view of the situation as recorded by BabyBarista in his wickedly unserious take on the legal profession, in the blog post Cookie Monster as seen in The Guardian.

Image courtesy of The IP Kat, the essential intellectual property law blog, which also has a good explanation of this change in the law.

Another useful site is All About Cookies.

The Guardians of Precedent

Law reporters serve the vital function of recording to posterity the decisions which develop and clarify the common law. Lord Denning MR famously described court reporters as the "watchdogs of justice". By the same token, those court reporters who create the concise, annotated, triple-checked record of legal proceedings in which a change in the law is argued and decided, could be described as the "guardians of precedent".

How apt, then, that the Guardian newspaper, whose growing law section now features some of the best reportage of legal developments and some of the best commentary in the form of regular and occasional blogs, now hosts a link to the latest case law as reported by ICLR in its free WLR Daily case summaries. Just go to the main "Law" page on The Guardian, and look for the sidebar panel headed "Case Summaries" and you will find the latest five cases to be added to the collection, with a direct link to the report on www.iclr.co.uk. If you right-click, you can open the case in a new browser tab or window, preserving your link to the essential law coverage at The Guardian.

It looks like this:




ICLR: for law, not profit. 

Court napping

The news that a £12m drugs conspiracy trial had to be abandoned after a juror reportedly fell asleep will no doubt shock anyone who regards the right to a fair trial, derived from the Magna Carta of 1215, as an essential element of the "lamp that shows that freedom lives".

Yet the truth of the matter is that court proceedings can be conducive to the droop of an eyelid, and where Homer nods, forty winks may not be far behind. Even law reporters have been known to be afflicted by the syndrome known as "somnus forensicae".

Accordingly to the Mail Online, the trial of Nadeem Aslam, 31, on a charge of conspiracy fraudulently to evade a prohibition on the import of a class A drug was dramatically stopped by Recorder James Guthrie, sitting in Birmingham Crown Court in March this year, after a female juror appeared to have fallen asleep whilst under the influence of alcohol. She was fined £250 and the jury discharged.

It is not the first time such an accusation has been made against a juror. In R v Thompson (Practice Note) [2011] 1 WLR 200, para 15, a complaint by some jurors after the conclusion of the trial of one of the defendants, spoke (amongst other alleged misconduct) of “the added embarrassment of a juror falling asleep during the case”. Giving the judgment of the court, Lord Judge CJ said, at para 28:

"It is not clear whether the assertion that the juror fell asleep was directed to a part of the trial, or the course of the deliberation. Either way, this should and would have been dealt with during the trial itself, or during the deliberations. If during the trial, it will have been remedied by the judge, and on the face of the description of the nature of the jury deliberations, it is improbable that the juror will have fallen asleep without at least one other member of the jury waking him up."

In an earlier case, R v Qureshi [2002] 1 WLR 518, para 7, it was also alleged, after the conclusion of the trial, that "A juror fell asleep during the evidence".

In a recent American case, according to the Daily Telegraph, a death row inmate in the southern US state of Arkansas was granted a new trial in December last year, after "one juror during the original hearing was caught sending Twitter messages and another juror fell asleep".

In the world of law reporting, whilst the use of Twitter is now more or less permissible, that of forensic somnolence has ancient history. It was later said of Barnardiston's King's Bench Reports (1726-35) that

"I fear that is a book of no great authority. I recollect, in my younger days, it was said of Barnardiston, that he was accustomed to slumber over his notebook, and the wags in the rear took the opportunity of scribbing nonsense in it."

The unreliability (for no doubt many reasons besides that of Homeric inattention) of some of the so-called Nominate Reports was, of course, one of the principal motives for the establishment of what became the Incorporated Council of Law Reporting in 1865. For more on this see, inter alia, the introduction to the ICLR Special Issue.

Perhaps more surprising than the tales of spectators such as jurors or reporters falling asleep in court are those of the actual participating lawyers kipping on the job. In April 2010 Judge James C. Evans of Mahoning County Common Pleas Court in Youngstown, Ohio, declared a mistrial after "A prospective juror pointed out that one of the defense attorneys had been sleeping during questioning of potential jurors" in a murder trial. According to the report in Youngstown News:

Atty. John B. Juhasz, representing Anderson, was doing the questioning. One prospective juror told Juhasz she could not continue to pay proper attention when co-counsel Atty. David Gerchak was sleeping in the courtroom.

“That just unnerved me. This is a man here [on trial], and your partner is sleeping. Wow!” the woman said.

Gerchak explained that his sleeping in no way demonstrates a lack of interest in the case. He said he has just been diagnosed with diabetes and is taking medications to control the disease, but those medications can make him fall asleep.

"My blood sugar must have plummeted, and I didn’t even realize it,” he said.

Judge Evans, after a lengthy discussion with prosecutors and defense attorneys, apologized to the jury and declared a mistrial. The judge said the best option is to start fresh at a later time.

No doubt many of us will be muttering "there, but for the grace of God..." etc. But the fact is, no one is entirely immune from the temptation to snatch a few Zs in court, not even judges (apparently).

Thanks to Google, we can spare the British judiciary any blushes by finding an example overseas, from Sweden this time, where according to The Local, "An appeals court case in Gothenburg is set to go to retrial after the presiding judge took a nap during proceedings, according to both the defence and prosecution counsel."

"It is very important aspect of the legal process that the person trying the district court decision is present," said the prosecuting counsel Margareta Esplund to broadcaster TV4.

"Normally when a person falls asleep there are certain indications of this - you start by closing your eyes and then the head falls forward... followed by jerking movements as you pull yourself together."

Esplund continued to add that "you can never be entirely certain" if someone has fallen asleep but emphasised that in this instance all the indications are that this was the case.

Judge not, lest ye be judged.

To conclude, here is a characteristic piece of commentary from the late, great Auberon Waugh, writing the Way of the World column in the Daily Telegraph in June 2000. It seems as good a summing up as any:

Snoring on

THE magistrate in Trowbridge who dozed off while a defendant was giving evidence has all my sympathy. With every month that passes, I thank my lucky stars that I have not been called to jury service. Would it be an acceptable excuse that you very much doubt your ability to stay awake?

Perhaps it is the result of listening to sermons as a boy at Downside, but I find that as soon as anyone starts making a speech on any subject, my mind switches off and if they persist I am asleep within four minutes. The courts are infinitely worse. After a few minutes, everybody knows exactly what everybody is going to say before they have said it; then they repeat it four, five or six times.

At least lawyers are handsomely paid for taking part in the ritual, but I never understand how jurors manage to stay awake. On one memorable occasion, in a civil action, I found I had fallen asleep while actually giving evidence. Luckily, nobody noticed.