Kerry Underwood

HIGH COURT JUDGE SUGGESTS COMPULSORY CARRYING OF MOBILE PHONES AND OTHER STRANGE THINGS

with 15 comments


In a bizarre speech delivered to The Law Society on 8 May 2018, the Chancellor of the High Court, that is a High Court Judge, suggested that there may be benefits if it were made a criminal offence in this country not to carry a mobile phone at all times. He said:

 

33. Despite this, I think there will be far fewer contested criminal cases in the future, mainly because of the surveillance of which I have already spoken. We have recently seen the impact that digital disclosure of mobile phone records has had on rape prosecutions. One change in behaviour is already having a big impact on the eradication of contested criminal cases. Most people carry their smartphones on their person at all times with their GPS location switched on. They do this voluntarily, but if the legislators were, for example, to require citizens to carry phones at all time, it would be even more difficult to avoid detection. With or without such a rule, as the location of all persons is continuously uploaded to the cloud, there will anyway be far fewer identity issues in criminal cases. As society seems to accept more and more surveillance, I wonder how radical the change I have mentioned will seem to the population in 10, 15 or 20 years’ time.”

 

My first thought was that this was an ironic piece highlighting how Orwellian society is becoming; I am well used to my own irony being treated as serious proposals.

However, I am assured that Sir Geoffrey Vos was not being ironic, and indeed the rest of the speech is in similar vein.

His apparent detachment from reality as far as the court system is concerned is shown by these observations on litigants in person:

 

“35. This online world has allowed the litigant in person to flourish. Indeed, many of the online dispute resolution processes are designed to allow individuals to deal by themselves with their small legal cases.”

 

I am unaware of any other member of the judiciary who shares this view. Indeed there is overwhelming evidence, from both the criminal and civil judiciary, that litigants in person are struggling to get justice, while at the same time slowing down the whole court process.

The whole speech is here and is worth reading, in the same way that George Orwell’s 1984 is worth reading.

 

Take this:

 

“Lawyers at all levels must start to demonstrate that they are thinking ahead and, most of all, embracing innovation across the board.”

 

That statement assumes that innovation = good, and that tried and trusted = bad.

A moment’s thought shows that this is illogical, and plain wrong.

It echoes Lord Justice Munby’s ­recent suggestion that we should ask litigants whether they want to walk a total of 24 miles to court and back, or want to access the court online.

No suggestion that may be the one thousand year old system of having local County Courts – the giveaway is in the name – is what people want.

No, of course not, as old = bad.

In fairness to Lord Justice Munby he made these comments against his own statement:

Anyone who thinks we currently have a network of courts which enables proper access to justice is deluding themselves. I was told that somebody the previous week had walked for 12 miles to get to court and at the end they had to walk 12 miles back home. That is the reality of our present justice system.”

Lord Justice Munby may well have been being ironic.

 

Imagine a supermarket chain running a campaign along the lines of:

 

We are closing loads of our supermarkets, which you paid for in the first place, and we will charge up to £10,000 to shop with us.

What we need to know is whether you wish to walk to our nearest store, which will be 12 miles from you, or just trust your luck online.”

 

Now, we know that no one ever visits a supermarket personally; that is why they are open 24 hours a day and the car parks are full.

Vos suggests that his views had the backing of the American Bar Association, quoting Rule 1.1 Comment 8 of the Model Rules of Professional Conduct.

I think not.

The statement there that lawyers must “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology” is hardly the same as “embracing innovation across the board” is it?

In particular the American Bar Association specifically warns that lawyers must be aware of the risks associated with technology.

 

In discussing Artificial Intelligence Vos says:

 

“This latter [AI] is where machines can perform the kind of intellectual decision making that we normally associate only with humans: for example, the decision of a judge to choose between allocating the custody of a child to her father or her mother, or the decision as to what happened at a contested business meeting.”

 

This is a telling quote. Surely the whole point of judges, and for that matter politicians, priests, doctors, teachers, police officers etc., is that we often need something other than “intellectual decision making” – something less tangible but more valuable, including wisdom.

For a senior member of the judiciary to equate a dispute as to what happened at a business meeting with the issue of the custody of a child is unfortunate.

 

I literally started laughing out loud when I read this at paragraph 20:

 

  1. Moreover, we will need to become increasingly aware of the dangers of contract automation, as algorithmic trading increases. It now accounts for some 50% of trades on the S&P 500 and is already credited with having accelerated recent market collapses across the globe.”

 

Well that is alright then. A global world market collapse is a small price to pay for closing a few courts and saving a few quid on a legal transaction.

Does it not ever occur to the learned judge that people are better off paying a bit more for services and avoiding the collapse of the banking system, together with the consequent cost of nationalising it and the loss on denationalising it?

 

What about this:

 

“It will be very rare to have a face to face interview with a lawyer in relation to a legal problem.”

 

We will see.

Vos also refers to meeting Richard Susskind in 2006, when Susskind predicted that all conveyancing, family law, wills, probate, personal injury and administrative disputes would be advised upon and dealt with online for no charge.

 

Really?

 

Vos also, and I am sure it is through ignorance and not an attempt to mislead, equates the drop in conveyancing fees with automation since 2006.

Well conveyancing fees started dropping in the 1980s, and are now increasing again as people realise that you get what you pay for.

The cheap, automated firms, are those going bust.

Vos’ reference to “small legal work” in paragraph 36 is telling; we do not want the plebs having lawyers; only rich corporation should have lawyers and courts and judges.

 

“Also, unless human nature changes more radically than I expect, I would therefore predict that some advice will still be required about transactions that have either produced that were expected to produce profits or losses.”

 

But not, presumably, in relation to family matters, custody disputes, immigration, human rights, freedom of speech or employment etc. – the small law for small people.

It may well come as a surprise – or maybe not if you have read this far – that Russia is a role model here:

“46. … I was surprised to learn a few years ago that there were 11,000 regulated advocates in Moscow, but some 50,000 unregulated so-called “business lawyers”. It may well be that we will need a cadre of business advisers with excellent technological and IT skills and an understanding of the law, but rather less fully trained legal experts.”

I was unaware that Russia was regarded as a model of good legal and business practice with no problems of corruption or deregulation.

In the Transparency International Table of Perceptions of Public Corruption, Russia ranks 135 out of 180.

North Korea and the Soviet Union also appear as role models:

 

“Once greater surveillance becomes the norm, the law of evidence may become less central, and lawyers less indispensable to dispute resolution in this area.”  

 

As a New Year treat, I suggest that the Chancellor of the High Court read the Glass Bead Game, written by Hermann Hesse during the Nazi control of Europe, and disposing, one had hoped for ever but obviously not, with these theories.

 

 

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Written by kerryunderwood

January 3, 2019 at 9:06 am

Posted in Uncategorized

15 Responses

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  1. What the learned judge suggests is the not-so-thin end of a wedge, the thick end of which would be the adoption of the social credit system now being introduced in China. I understand that one of its benefits is the replacement of law as a means of regulating behaviour, so we could get rid of all those pesky lawyers, including all those expensive judges, and have everything dealt with automatically.

    Peter

    January 3, 2019 at 9:23 am

    • Artificial Intelligence is just someone else’s view of what is right, but with no accountability and always taking the status quo, so built in conservatism and no ability to re-act to social change. The logic of this is that if we had had it 300 years ago, then we would still have slavery based on society’s then perception of what is logical. profitable etc.

      Kerry

      kerryunderwood

      January 3, 2019 at 10:26 am

  2. I did read the speech. It’s a view of what legal life might be like, taking the view of the millennial generation to its logical conclusion. I don’t agree that the speech is bizarre or demonstrates “apparent detachment from reality as far as the court system is concerned” as it is essentially an address based on prognostications.
    I thought the judge made some interesting points about legal training in the future and the softening of core legal skills to fit the area of legal work. My own experience is that I now need less and less of what I learned at university and law school and more and more understanding of human nature, social media and the expectations of society today.

    Michael

    January 3, 2019 at 10:15 am

    • Er – that is the point I am making – that law is, and always has been- about human nature and behaviour including apparently irrational things such as love and loyalty and honesty etc. .Legal issues are not capable of being dealt with by an uber rationall artificial intelligence approach.

      Kerry

      kerryunderwood

      January 3, 2019 at 10:21 am

  3. I always thought Vos was a reasonably sensible chap, but (without having read the whole speech, or considered its particular context) it sounds like claptrap. While mobile phones – because of location tracking and their cameras – may be helpful in providing evidence, it is going far too far to make them compulsory. I have my location turned off (as it drains the battery and I’m old fashioned enough to expect a charge to last several days), and rarely use the camera facility, so taking a picture usually takes me a few minutes. Should I be criminally sanctioned for my lack of technical nous? I also agree with Peter’s first comment!

    Simon

    January 3, 2019 at 10:21 am

    • It is also a nonsense in practice. If I want to give myself an alibi while I rob a bank, I just get someone else to have my mobile phone showing I was at a restaurant or Queens Park Rangers or whatever, or I leave it at home, showing I was at home at the time. If I get nicked for not having my mobile on me, the penalty is a bit less than for bank robbery.

      Kerry

      kerryunderwood

      January 3, 2019 at 10:30 am

  4. Having now read the whole speech, Kerry Underwood’s Reply comment above is apposite: in my experience disputes in which the parties think only rationally about the dispute itself usually settle fairly readily, although some personality types will require some posturing to get there. Truly disputed cases are either worth so much the game is worth the candle, or there is some other factor in play. The parties may hate each other. Something else, kept from the lawyers, is riding on the outcome; people can act irrationally (boundary disputes which bankrupt people, to take an extreme example); corporate culture may intimidate individuals from making any concessions, while be accepting of ‘defeat’; and so on. All aspects of human nature.

    Simon

    January 3, 2019 at 10:41 am

    • Huge number of legal disputes involve the emotions of human relationships, for example, family ,employment – and as you rightly say – neighbour and boundary disputes. As you say, if everyone always behaved rationally, then there would be few disputes – law is essentially about the irrational.

      Kerry

      kerryunderwood

      January 3, 2019 at 10:48 am

  5. Worryingly out of touch

    Gareth Thomas

    January 3, 2019 at 11:12 am

    • I will be posting a blog about how bad a year 2018 was for the legal system of this country and will be quoting many senior judges who are very much in touch with what is going on.

      Kerry

      kerryunderwood

      January 3, 2019 at 11:33 am

  6. The totalitarian tip toe is slowly creeping up on us. 1984 is an apt read and we are all becoming proles with each passing day. This is nothing short of fascism and another breach of privacy, the question is when will it stop?

    Richard Ferguson

    January 8, 2019 at 3:28 pm

    • Richard

      I agree, and I don’t know. Currently writing a much longer blog looking at these issues and the desperate position that he civil justice system is in in this country.

      Kerry

      kerryunderwood

      January 8, 2019 at 3:33 pm

    • Richard

      I will be posting a blog about how bad a year 2018 was for the legal system of this country and will be quoting many senior judges who are very much in touch with what is going on.

      Kerry

      kerryunderwood

      January 3, 2019 at 11:33 am Edit

      Reply

      kerryunderwood

      January 8, 2019 at 3:34 pm

      • Kerry,

        I will be very interested in reading that piece because it would appear to me that people in high places have their own vested interests in such matters and are not interested in the common folk.

        Richard Ferguson

        January 8, 2019 at 3:44 pm

  7. Richard

    One of the problems with the legal system is that unless and until they are engaged with it, most people do not pay it much attention, so it was an easy target for a massive “austerity” cut, which also meant that ordinary people, through legal aid cuts, increased court fees etc., lost the ability to enforce their legal rights.

    Many Judges, who of course do see what is going on, are very worried indeed about the current state of the justice system.

    Kerry

    kerryunderwood

    January 8, 2019 at 3:50 pm


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