Wednesday, 28 November 2012

'Tis the season to be jolly - but that doesn't mean drink-driving is OK

Wouldn't it be nice, at this time of year, not to have to worry about drink-driving?

By that I don't mean there should be a moratorium on the enforcement of criminal penalties for people caught driving over the limit. Far from it. What I mean is perhaps even more fanciful: that December would see people truly adopt the spirit of goodwill to all - and refrain from drinking and driving.

Regrettably, the case of PC Brendan Buggie reminds us that some people leave common sense at home when they have a drink. The police officer was off duty but well over the drink-drive limit when, last December, he crashed in Greater Manchester, killing a female friend who was a passenger in the process. Buggie had had six pints in local pubs before he decided to drive, only to crash his sports car into a parked van on the A56 in Ramsbottom. Bradford Crown Court recently heard that his passenger, Justyna Stanczak, died of massive internal bleeding a few hours after the incident.

Buggie was cleared of causing death by careless driving, but convicted of drink-driving. There are many, not least those commenting on the Mumsnet site, who say that the very act of driving while under the influence should have been enough to see a conviction for causing death by careless driving. As a citizen, I have much sympathy with this view, though lawyers will no doubt point out that it is important, in the court process, for the precise cause of an accident to be established before liability can be apportioned.

In this case, it seems that the road conditions were highly treacherous, with a great deal of ice on the surface. If this, though, accounts for the causation of the crash in a strictly legal sense, it is also worth noting that the evidence shows that Buggie did not even realise the roads were icy. Had he been sober, surely he would have better observed the conditions and adjusted his driving accordingly - or, perhaps, elected not to drive at all.

Buggie presently awaits sentencing. He has been told that the circumstances are so serious that he may face a custodial sentence, albeit that he was not convicted of causing death by careless driving. 

This sad story should serve as a wake-up call to those who think, like Buggie, that they’re sober enough to drive when they are, in fact, over the limit. The consequences of one act of stupidity can be as fatal as they were for poor Justyna Stanczak, or they can be almost as severe with victims suffering terrible head or spinal cord injuries, condemned to living the rest of their lives in a vegetative or paralyzed state.

In the UK, the alcohol limit for drivers is 80mg of alcohol per 100ml of blood, 35mg per 100ml of breath or 107mg per 100ml of urine. In most other European countries, the limit is less, usually 50mg per 100ml of blood. Moves are presently afoot in Scotland to lower the drink driving limit from 80mg to 50mg - moves which are supported by the Association of Personal Injury Lawyers. No wonder, when we consider that the UK currently has the highest threshold for drink-driving in Europe. As Alice Warren, APIL's Legal Policy Officer, says: "Lowering the drink-driving limit will reinforce the message that people should not drink and drive, therefore this is an extremely positive move that will improve road safety, and prevent injury and loss of lives." 

I endorse the proposals for change north of the border, and I also endorse APIL's stance. But meanwhile, how about a bit of good old-fashioned common sense? We all know what happens when we drink too much. Some of us lose our sense of perspective after a single drink. Most of us find our co-ordination adversely affected after a couple of drinks, and all of us will experience impaired reflexes after drinking just a small amount of alcohol. It's not rocket science to decide to leave the car alone if we've had a drink, or if we know we're going to be having a drink. And it'd make for a pleasing change if we all acted sensibly during this, the season of goodwill.

Monday, 19 November 2012

Government must shed light on the darkness shrouding child abuse with wide ranging enquiry

A Prime Minister recently announced a wide-ranging inquiry into child sex abuse saying "Any instance of child abuse is vile and evil thing. There have been too many adults who have averted their eyes to this evil. There has been a systematic failure to respond to it and to protect children".

For UK citizens who have listened daily in recent weeks to the deeply depressing revelations about Jimmy Saville, the Bryn Estyn children's home and others in North Wales and last week's news that a former Church of England Bishop and a priest have been arrested on suspicion of sex abuse in the late 1980s and early 1990s, you might think that the quote above is from David Cameron.

In fact it was made by the Australian Prime Minister, Julia Gillard, as she recently announced a Royal Commission into child sex abuse, the institutional responses to abuse, the potential complicity of those institutions and the response of the police. Similar state level inquiries are already under way in Victoria and New South Wales.

The precise remit of the commission is still to be determined but it is believed that it will cover a broad range of institutions from the Catholic and other Churches, boys scouts and sports groups and child welfare agencies. The founder of one child protection charity in Australia, Hetty Johnston of Bravehearts, has said that the Commission should be as broad as possible: "The royal commission needs to include not only the churches. It needs to include family and other courts, government organisations and other institutions, anybody who has a duty of care".

Having recently been in Australia attending and speaking at the Australian Lawyers National Conference, it is horrifying to see the similarities with recent events in the UK being played out on the other side of the globe.

In both countries, an unknown, but large, number of victims have been ignored or dismissed for decades. They have been forced to suffer in silence with their anger, hurt and fears. Meanwhile it is increasingly apparent that institutions and authorities, that children should have been able to rely upon and place their trust, have engaged in the systematic cover-up of the truth with a "look the other way" attitude towards cases of abuse and perhaps have even aided abusers.  That some of the victims of child abuse are to finally be given a voice to tell the truth will be greeted with mixed emotions by those that really matter - the victims themselves.

There is currently an internal BBC inquiry and the public inquiry into abuse claims in North Wales' children's homes is to be reopened.  But the UK Government should follow the lead of Australia and instigate a wide-ranging inquiry, rather than these narrowly focused investigations.

There will undoubtedly be those who will argue that inquiries are expensive, are frequently knee-jerk reactions to events and take too long (the child abuse inquiry in Ireland began in 2000 and only reported its findings in 2009).

But they are also an essential component of a democratic society when it is either proven or suspected that the normal institutions of government have failed to protect the innocent or seek justice for the victim. If the institutions of justice have failed to do their duty and protect society, it is sometimes necessary to by-pass those very institutions and implement an independent review of the evidence and historical and current events.

I sincerely regret that child abuse is unlikely ever to be eradicated, but we as a society must do all we can to prevent abuse in the first place and seek justice when it does occur. Society must be unafraid to look into its darker corners in the pursuit of truth.

Thursday, 15 November 2012

Back from the Antipodes

Here's a quick update to say that I'm back from Australia – somewhat jet-lagged, it has to be said. I still feel as if I'm upside down. I can’t help but marvel at people who fly to the other side of the world for business trips of just a day or so, then return to the UK. Maybe their body clocks adjust by dint of being constantly on the move, but I'm still getting used to UK time.

I was in Australia for the national conference of the Australian Lawyers Alliance. This took place in a suburb of Adelaide called Glenelg. As I predicted, the weather was rather warmer than it is here.

I'm keeping this blog brief owing to the pile of work to which I've returned. At the conference – which I found hugely interesting and informative – I spoke about PI and litigation reform in the UK. However, the key thing that struck me about life in Australia, and the legal issues the country's lawyers have to deal with, boils down to one thing: immigration.

I recall reading that one in four of Australia's 21 million people were born overseas; to spend just a short time in the country is to see that it is a multicultural melting pot. However, Australia’s immigration policy is a topic of great controversy. The government exercises considerable control over who is allowed to enter the country through the visa system. Anyone who is not an Australian citizen must hold a valid visa to be lawfully in Australia.

This is reasonable enough, but ‘unlawful non-citizens' (as they are known) must be detained under the Migration Act until they are able to establish their Australian citizenship, or have evidence of being a lawful non-citizen (for example, they have a valid visa), or are granted a visa.

In speaking to Australian lawyers I discovered that there is considerable disquiet about the way in which people are detained, pursuant to one of the strictest immigration regimes in the world. One of the foremost firms with expertise in this area is Shine, whose offices span the country.

I met with various personnel from Shine, including two very interesting characters – former Lt Colonel Michael Mori, who represented Guantanamo Bay detainee David Hicks, and George Newhouse, an Australian Labor Party candidate in the 2007 election who now heads up Shine's social justice practice. Mori became a military judge in Hawaii but is now working for Shine in Melbourne, and, as with Newhouse, he has an excellent record in human rights cases.

In talking with Shine's lawyers I discovered that anyone who is reasonably believed to be an unlawful non-citizen must be detained by an Immigration Officer. Even worse, the detention can be indefinite and detainees have limited rights to challenge the need for and the conditions of their detention in a court. Worryingly, it seems that detention is the norm for those without a valid visa, rather than something exceptional. This cannot but raise serious concerns from a human rights perspective.

This is a bird's eye view of a serious problem, but it has parallels with the points I have regularly made about reform of the PI sector in the UK. What is required in Britain, as the changes recommended by the Jackson review come yet closer to implementation, clearly applies to Australia, too – namely a holistic assessment of the overall system which is flexible enough to take into account the nuances of individual cases. The aim must, at all times, be to put a premium on justice being seen to be done – and actually being done.

My visit to Australia revealed a wonderful country with a huge amount going for it, but, when it comes to its immigration policy and practice, there is undoubtedly work to be done.