Death Penalty for Trying to Help? The meaning of Words.

Death Penalty for Trying to Help? The meaning of Words.

Every Notarial Job is the Same – Every Notarial Job is Different. Nothing too unusual in that I suppose. I am sure you can say the same of most jobs. Every lorry driver knows that each trip up the Motorway is the same route, but the hazards are always different. And there is always the chance of a surprise.

Last week’s surprise came from Florida.

In January this year, I saw a couple of Clients at my Office in Leeds. They executed and I witnessed and Certified a Deed connected with their sale of Property in Florida. Since the USA is a party to the 1961 Convention of The Hague, this document should have been submitted for Apostille stamp. [If you want to know more about that, see my earlier Blog link here].

Although I mentioned this to the US Advisors to my Clients, the response was that no further authentication beyond my stamp and seal was required. OK, I sent the Notarised Deed to Florida. Job done and filed away in January.

Until this month, when I was asked to “send over an Apostille”. Bit odd. The Apostille is a certificate physically attached by the British Foreign and Commonwealth Office to the document bearing the Signature and Seal which it authenticates. The USA Advisors appeared unaware, but eventually they understood that they had to send me the January Deed in the post.

The January Deed was of two pages, plus a third page described in the Deed as “EXHIBIT A ATTACHED HERETO”. The Deed therefore totalled three pages and I had in January physically bound them together with brass rivets and green tape under a wafer embossed with my Seal of Office.

I do not understand how Exhibit A could be any longer considered to be “Attached” to the other two pages [as the wording said it actually was] when I found that the envelope from Florida returning the Deed actually contained three separate pages.

Oh Calamity! The original Deed has been unbound. The Cord had been cut and partially removed. One rivet was missing. The three pages were quite unattached one to the other. Also one page had an area of whitener – Tipp-Ex © – applied to some writing beneath it which had not been written there when the bound Deed left my Office.

I had to explain that the Deed, defaced in this way, was somewhat in the state of Humpty Dumpty after the falling-off-the-Wall incident. Not all the King’s Horses, King’s Men, nor the Queen’s Foreign and Commonwealth Office can put it together again.

So it won’t be getting an Apostille stamp. Everyone will have to start again.

Which makes me wonder about the changing meaning of words. If the American Deed wording includes the word “Attached”, what does it mean? What do they understand by it?

Clearly notwithstanding the use of the word, someone in the States has decided that the Deed would not be invalidated or rendered meaningless by being pulled apart – presumably in order to scan it using a sheet feeding device which requires single sheets. This creates a PDF document. Now, are the pages of a PDF “attached” to each other? The whole thing is virtual. I suppose that now, the Exhibit is “included” rather than being “attached”?

Problem is, that the Foreign Office will not issue a virtual – digital – apostille of a digitised version of an original paper document. And further, the problem is that the original, whether paper or digitised, used the word “Attached”.

It seems to me that the IT revolution has completely overtaken the wording and practices of the legal processes which it has been adopted to facilitate.

If paper is no longer to be the medium of legal documentation, why does the wording of such documentation pretend otherwise? It seems to me that we are increasingly living in a world where the unimportant detail is insisted upon – Always use Blue Ink for legal documents in Florida – but the actual meaning of the words in the document are almost irrelevant.

We are faced with a sort of Kafkaesque dream/nightmare world where most of the time we are asked to accept that the significance of the words in a document must be what the writer of them intended to mean, rather than what the words actually mean.

One further example from my own experience:- My client Ms. C lives in Leeds. On a holiday in the States she witnessed from the safety of a car, a street robber holding a gun to a pedestrian and stealing from him. She took photos of the gunman and gave the photos to the Police.

Months later the Police caught the man in the photos and a Court hearing was taking place. The photographs were the best evidence of his guilt, so the prosecutor wanted to put them before the Court. In order to do so, the Court needed evidence that they were genuine and not doctored and so it needed evidence from Ms C.

No-one was willing to pay her airfare to Miami from UK return just for a five minute Court hearing, to take the Oath, then “Do you identify these photos, are they the genuine photos taken by you? – Yes – No further questions – Thank you, you may step down“

So the alternative procedure is for Ms C to appear before me in Leeds to swear an Affidavit. In due course an email of the intended Affidavit arrived in my inbox and Ms C attended to swear it. It read, in essence “I swear that the 10 photographs attached are those taken by me in Florida on [date]”

No problem at all, except that no photographs, digital or otherwise, were included in the email, to be printed and attached to the Affidavit.

When I phoned the US Prosecuting Attorney’s office, he said that the ten photos had been printed onto glossy card and were in his office, and that he would attach them to the Affidavit when it got back to the States.

He agreed with me that the Affidavit wording said “I swear before Almighty God that the ten photographs attached are …” and that it was to be dated, on a date when he knew and I knew and Ms C knew that none of the photographs were even in England. Yet he wanted her to swear the opposite. A lie. And in the context of an Affidavit to be put before a Judge in Court. That is the very definition of the Offence of Perjury with intent to pervert the Course of Justice.

I asked him to get an American dictionary and read the entry for “Attached” in case the USA meaning is different from English. Oh he said, I see what you are getting at, but we just kind of means by “attached” that it exists. Oh I said, in England we mean by the word that it is attached.

By the way, if Ms C had proceeded – [and surprise, she decided not] – to go ahead and commit the offence of Perjury with intent to mislead a Criminal Court, there are two States of the Union – California and Idaho, where that offence is potentially punishable by death.

Sometimes words suddenly leap out of the context of academic argument, and get serious. Link Jail in USA

If you have a document with words in it, for use abroad, please do get in touch. As ever, Louise and I are at notary@atkinsonnotary.com and louise@atkinsonnotary.com and phone us on 0113 816 0116

Tax Avoidance, Adultery, Forgotten!

Tax, Adultery, and Forgetting!

This week I have been musing on three topics, in the news or relating to earlier blogs of mine.

In no particular order, tax avoidance, adultery and the right to be forgotten.

From time to time there are flurries of moral outrage drummed up by the Press and Government claiming that the human instinct to minimise tax liability is in some way “immoral”.

Immoral? Good luck if you ever try to get two humans to agree a definition of what’s immoral. Luckily, as I am a Lawyer, that’s not my problem. Easier, to define what’s legal. And last time I looked, tax avoidance was legal.

The Chancellor is using language which seems to be preparing the ground to change that. Time and again his language refers to his intention to “tackle tax avoidance, tax evasion, and fraud”.

Lump legal behaviour in with crime and sooner or later the thought-police will be knocking on your door. George Orwell and Hitler had views on this.

Tax avoidance is avoiding tax. When I buy clothes for £120.00, I have paid £20.00 tax. When I buy food for £120, I pay no tax. I have avoided £20 of tax because I spent the money on food. Yet the Chancellor is not seeking to stamp out the purchase of food, so far as I understand him.

What he is doing it seems to me is trying to change the meaning of the phrase “Tax Avoidance”, so that it no longer refers to the tax avoiding activities he is in favour of, such as eating, or investing in ISAs, but instead refers to any tax avoidance measure that he doesn’t happen to approve of.

He imagines that we should all “do the right thing” and not take advantage of legal tax savings which take advantage of the consequences of tax law which were not intended by Parliament. “Don’t seek to profit from our mistakes” he says.

There is a school of thought that behaviour improves if those preaching it set a good example in their own conduct and behaviour.

It is hard to see any such good example in the recent case of Jim Dooley reported in this link and elsewhere on the Internet. Jim Dooley is the chief fundraiser for the Bomber Command Memorial Fund. Sounds like the sort of chap we can all approve of. For reasons which are not clear to me, he had received money over the past ten years which had to be returned. He had returned all of the money, but because he had paid £60,000.00 tax on those receipts, he is now £60,000.00 out of pocket. Tax he had paid which with the benefit of hindsight can be seen to have been paid in error.

Ok then, the Chancellor says no-one should profit from tax mistakes, so presumably all Jim needed to do was write to the tax man and get the money back, simples. But, Dearie Me Today and guess what? The tax man says No. His splendid wording deserves repetition “It might appear unfair to deny a customer [customer?] the opportunity to recover amounts of tax that may not have been due”

Yes, I’d say that’s how it appears, all right.

Ok that’s enough about that for this week, what about Adultery?

The subject is in the news because the Canadian “Cheaters” website Ashley Madison has lost its data. So that there is now access all over the internet to the details of their clientele of 33 million “would-be” adulterers.

It is a disaster for any Company to suffer a data attack. Carphone Warehouse has had to report the theft of the names addresses dates of birth and bank details of nearly 2.5 million customers. Those people are at increased risk of targeting by criminals, but at least they do not need to fear blackmail or extortion or divorce for wanting to have a mobile phone.

Today the Canadian Police suggest that the Ashley Madison theft has resulted in suicides. A disaster for those people and for their families.

So my take on all this relates to computer security. Yours and mine. We all know that it is important and those of you who run businesses which store your customers’ details must register with the Information Commissioner’s Office [ICO] for a licence to be a Data Controller. We are legally responsible for the safekeeping of that data. Very substantial fines can be imposed for unjustified release of data. Past examples include a Local Authority which sent details of a child sex abuse case to the wrong address, and a commercial firm whose employees had an unencrypted computer stolen, loaded with sensitive personal information about 24,000 people.

On the other hand, if we store important data in computers, we know that computers will go wrong. And usually if the data is lost, the business will fail. So we must back up our data. And those back-ups have to be kept somewhere. It is a very real dilemma. The more copies there are of our computer data, the more places it can be stolen from, quite apart from digital attacks. Who do you give the hard drives to, to look after? Will they leave them in a car or train? Lose their briefcase?

And when data is stolen, even if you avoid fines from the ICO, the bigger loss is your customers. They are your livelihood and past evidence suggests, a third of them will walk away from your business immediately when they hear your systems were insecure.

The temptation is to take the view – “it’s too difficult to know what to do about our data, so we will do nothing”. No, I can’t recommend that view.

Last topic – The “right to be forgotten” [RTBF].

Quick recap on last week – If a search engine enquiry of your name gives a link to a website which is, say, the Court report of when you ran on to a football pitch at the age of 16 the last time Huddersfield Town won the league, you may be able to persuade Google, or the ICO or a Court, to order that the link be removed. This on the basis that the link is now unfair to you and to your reputation as a reformed pillar of society, not a hooligan at all these days.

The Court report will still be on the internet, but no-one will be able to find it by searching your name.

Here’s this week’s twist link here. In their article, McGuire Woods explain that the ICO has ordered Google to remove links to reports of someone’s criminal offence, because it is nearly ten years old now. Google did so.

However, this was the first such order issued by the ICO in England and as such, this was legitimate news. News therefore, worthy of Google links if you used a search engine to find out about it. But if you did, then you would find a barrage of news and press comments about it all, many with links to the original ten year old article.

So now the ICO is ordering Google to delete all links to reports of its Order earlier this year, on the basis that if they don’t then the ten year old information will be easily retrievable and not “Forgotten” at all. And look, here I am writing about it. And this very article will be searchable through Google.

How often can the ICO order Google to delete links to its Order to delete links to its earlier Order to delete links to its earlier earlier Order to delete links to its earlier earlier earlier ……….?

If this is an unforeseen consequence of the RTBF, than those who didn’t foresee it were not wearing their glasses. See Streisand effect – link here

In the meantime, if you need Notary Services in Leeds – here we are. Please do contact me or Louise whenever we can assist. As ever, it’s notary@atkinsonnotary.com and louise@atkinsonnotary.com and phone us on 0113 816 0116

 

Right to Be Forgotten. Not Simple, Really.

Right To Be Forgotten. Where Are We Up To?

Back in pre-history before the Internet, or at least, before computers arrived on every desk and in every phone, there were Newspapers. Up to, say, 1995.

And since they first began, Newspapers, and Local Newspapers in particular, suffered from a lack of actual interesting local News.

[They still do, judging by today’s edition of the Leicester Mercury. A man has been fined today for stealing two bottles of brandy from the Co-Op. Read all about it! link here]

So in default of interesting news, the papers used to send either a keen apprentice, or a world-weary hack, to sit all day in the Magistrates Courts and write it all down. I should admit, that when I first qualified as a Solicitor and began appearing in the Magistrates Courts myself, I used to get a kick out of reading this sort of report with my name as the Defending Solicitor. Me, in print!

So, OK, a man gets fined £150 and is made to pay for the brandy. Now today the thing is, it’s not 1995 anymore, and his name is in the Internet.

In those “Old Days”, his name and that day’s edition of the Mercury would have vanished from everyone’s memory well before his criminal conviction became “spent”.

The purpose of the Rehabilitation of Offenders Act 1974 [as amended in 2014 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012] links here and here  is revealed in its name. If the idea of punishing a crime is to chastise, it is also hoped that a lesson can be learned and that the Offender will reach a decision to change behaviour.

To that end, it is counterproductive to require such a person to reveal his Criminal record when he goes for his next job interview. The rules as to what must be disclosed, and what need not, are set out in the two Acts of Parliament. So whilst an offence of a sexual nature may have to be disclosed in a job application to work with children, the general position is that minor brushes with the law in a person’s youth should not thereafter blight their chances of ever getting a decent job or having a career.

BUT.

Is there any employer, who does not Google the name of a job applicant before even seeing them at interview? And, if they see the heinous crime of shoplifting twenty years ago, maybe there will be no job interview. And Google has no policy of Rehabilitation of Offenders. If it’s in the Leicester Mercury in 2015, then it’s there for ever on the Internet.

And if it is there on the Internet, Google will find it.

Because of this, there has grown up the concept of the “Right to Be Forgotten” [RTBF].

What it means I think is, the Right Not To Be Googled.

I mean by that, that the Leicester Mercury is what it is. Yesterday’s paper cannot change. If it carries an article in 2015, then the article will still be there if you read the paper in 200 years time. No-one is suggesting that social historians, wanting to read an old newspaper, should be denied the ability to do so because the records of it on the Internet have been censored and changed.

Rather, the RTBF means the right to require of Google that its links to the article should be amended. So that when anyone googles “Fred Bloggs” in order to find out about Fred, there is no link to the newspaper article about him stealing a bicycle in 1996, even though the newspaper article is still on the Internet and always will be.

And on this interpretation the Courts of European Countries have in the main supported the concept of a RTBF. After the first Court Orders, there has been quite a flood of them, over a quarter of a million and the Internet is full of instances. In each case, Google has been involved. It is far and away the largest search engine; many people have not even heard of the others.

Google in Europe may be an Irish Company but it is of course entirely American-created and certainly its background and ethos is American.

If we in Europe have a gut feeling that, by and large, people have a right to privacy then perhaps in USA the gut feeling is, that people have a right to information.

So that a head-on crash was always likely, because the world can’t have privacy if information must be public.

Nevertheless Google has been willing in the main to concede to private applicants and Court Orders to remove links when the subject matter, in its or the Court’s opinion, is “inadequate, irrelevant , no longer relevant or excessive and not in the public interest”

But, it has done so in an interesting way. If the Court Order is French, Google removes the link from searches conducted by Google.fr. If English, it removes links from Google.co.uk.

So the canny user of the internet has quickly learnt to use google.com to make its searches, because by and large, search links are not being removed from the American search engine

It may be that matters are coming to a head.

Earlier this year the Courts in France required Google France to “ensure” that the USA Google should de-list all links which had been removed from Google France. And, threatening to fine Google France a lot of money if it failed to achieve this – ignoring the fact that Google France has no power to order Google USA to do anything. It is the tail,, not the Dog.

What this means is that the Courts of France are taking the view that they are the Courts of all the World. They demand, that if you cannot find a Google link in France, then you must not be able to find it in San Francisco.

So where’s this going? It is a criminal offence to insult the King of Thailand, if you are in Thailand. The Thai Courts will certainly want Google to remove links to Republican pages in Thailand. The Russian Courts will want any reference to Gay sites removed from all Google Links.

The link is here [and scroll to July 30th] to a Blog from Peter Fleischer who is the Chief Lawyer for Google. He says very reasonably, that if each Court in the World can decide what can be revealed by a Google search, then the Internet will become as free only as the World’s least free place.Not much of an Internet, then. He says that no single Country has, or should have, the authority to control what can be accessed by the people of a different Country.

Ever since it began, the Internet has carried the label of being “without frontiers”. To the extent that the Internet and Google are pretty much the same thing, where can we go from here?

Answers on a postcard please.

In the meantime, if you need Notary Services in Leeds here we are. Please do contact me or Louise whenever we can assist. As ever, its notary@atkinsonnotary.com and louise@atkinsonnotary.com and phone us on 0113 816 0116

Can We Afford To Protect The Weak? Do We Want To?

The “Official Solicitor”. Not Always Right. But, maybe The Best We Have Got.

The cry from the “Left” is that whenever there are cuts in public spending the impact is felt most by the weakest in society.

This Blog is not political and most of my readers will agree that no-one, whether individual person or government, should spend money it hasn’t got.

So make up your own mind, about legal aid cuts.

I mention here two separate recent cases, both referring to the Official Solicitor.

The Official Solicitor is a Public Official. He is a real person, his name is Alastair Pitblado. The phrase “Official Solicitor” is usually used in respect of his office, The Official Solicitor to the Senior Courts and the Public Trustee. According to the Government website this is a total of 135 people. According to its most recent reports, it costs us all about £8 million per year.

Its function, put simply, is to represent the weak and vulnerable in society. Those who are vulnerable, usually mentally or psychologically disabled and unable to represent themselves in legal deliberations which affect them and impinge upon their welfare or freedom

IN the case of David Ross v A , link here the Official Solicitor was pretty much smacked round the head by the Judge. This was a case where a girl P had received a large sum of compensation in respect of birth injuries, which was meant to provide for her life-long welfare. She may live into her fifties, possibly longer.

Mr Ross is a lawyer who has been appointed by the Courts to act as P’s lawyer/representative. He has decided that P should pay her brother’s school fees. This would enable P’s family to stay together as a family unit.

You may think, why should a disabled girl pay private school fees for her brother? Well, if you don’t have a clue about the personal circumstances of the family that would seem natural. The Official Solicitor has taken the stance that this is something that should not be allowed. Seems to me like a kneejerk reaction. Perhaps because the Official Solicitor’s office has a squeeze on its funding it now appears that the application it had made to disallow the payment of these school fees is “unnecessarily hostile and intrusive”

In particular the Judge said “I found the Official Solicitor’s approach to this application unnecessarily intrusive and hostile. It involved a microscopic scrutiny of the professional deputy’s expenditure since the inception of the deputyship and condemnation of the extent to which A’s entire family is dependent on her award. His proposed solution to this problem was crudely opportunistic. He contended that the deputy had behaved in a way that had contravened the authority conferred on him by the court and was not in A’s best interests and that, accordingly, the deputy was personally liable to reimburse A’s funds with the amount he had spent on B’s school fees so far.
“Many, indeed most, families are as dependent upon a damages award for personal injury or clinical negligence as the recipient of the award is dependent upon their family. Parents in this situation are all too aware of their reliance on their child’s award, and it is both insensitive and demeaning to stigmatise them for deciding to sacrifice their own careers and earning potential by staying at home and caring for their profoundly disabled child on a full-time basis.”

Strong words, portraying the Official  Solicitor as an unthinking reactionary, blind to nuance or individual circumstance.

But then again, have a thought for the reality in which the Official Solicitor’s office finds itself.

In a case this month, Mod & Others, link here ,The courts have said that in any case in which a vulnerable party who cannot represent themselves is faced with proceedings which could result in their being deprived of their liberty, representation of their interests is required before a decision can be made. Such representation must be provided by the Official Solicitor.

In a Country where the elderly population are living longer than ever, but diseases of the brain are striking earlier and earlier, the consequences of this decision are that thousands of cases,  tens of thousands will require representation at any given time..

This ruling appears to have the result that the Official Solicitor [remember, a staff of 135 people] may be asked to represent an additional what, five, maybe eight THOUSAND additional cases a month.

At a time when public funding is being reduced.

The response from the Official Solicitor not surprisingly, is, “I do not have the staff resources to manage the expected increases in caseload.”

So where does that leave the most vulnerable member in our society. [Society? Is there such a thing?]

I suppose, it is all a matter of what the taxpayer actually wants to fund. The elderly, the mentally inadequate, the mentally ill. Not very sexy are they, not very able to argue their corner.

I regret, I have no solutions at all. Still, food for thought, eh?

However, what I can supply is Notarial Assistance whenever you need it, – Please do contact me whenever you need Notarial certification or Legalisation – at http://www.atkinsonnotary.com or phone me on 0113 816 0116 (internationally 0044 113 8160116)