Hi-ho, hi-ho

I'm not really returning to blogging. To be more precise, I do not currently have any intention to return to blogging. A while ago I said that about work.

It was March 2005. While sitting in my study at home after a morning of gentle paperwork it was time to check recent emails before going into work in the afternoon. At first it was a bad bout of indigestion, perhaps I just needed to take a nap or a green chewy antacid thing, so both were tried. But no. After about half an hour it was apparent that I was having a heart attack - a myocardial infarction as the medics would say. One artery supplying blood to my heart was blocked causing the part of my heart muscle that relied on that particular supply of fresh blood to be starved of oxygen and to die. I had heard heart attacks described as "like having a giraffe stand on one leg in the middle of your chest". That's not wrong as far as I can tell, never actually having had a giraffe stand on any part of me with any number of legs.

In a way the most difficult part of the event was phoning for an ambulance for myself. Had I been present when someone else suffered similar chest pains I would have called 999 with alacrity. It's rather different when it's you and the hope remains that it is indigestion even though it's obviously a heart attack. Just a good fart is all it will take to prove your self-diagnosis wrong, so you don't pick up the phone until the pain is almost unbearable.

Eight days in hospital and the knowledge that I'll be popping pills for the rest of my earthly had a profound effect. One conclusion I reached was that I had to stop work, so I did. The decision was made easier by the fact, for fact it is, that on returning home I opened a file in a pending case and broke out in a cold sweat at the thought of having to present that case in court. Perhaps my work was a convenient scapegoat for the recent trauma, but a terrifying cold sweat is not something you forget easily. So I retired.

It was easy enough for the first three year or so. There were things to do, assets to rearrange, final taxes to pay and many other things beside. Once they were all done a gap was apparent. For the first time in my adult life I had nothing to do. That is rather a strange sensation when you have spent your life being more busy than you can really manage. It is no coincidence that I then started this blog. For more than a year my need to do something was satisfied and then I realised I had said everything I wanted to say. Actually that is only part of the picture. I had opined on all the subjects that matter to me but I also knew that blogging was a distraction in my need to do something, a temporary and infrequent solution.

Last week an old friend asked me to cast my piggy eyes over the papers in a difficult case he had in the Court of Appeal. It involved an area of law that has always been of special interest to me since I lectured on the subject more than a quarter of a century ago. What fun it was. A couple of days in the library to make sure all recent developments in English, Australian and Canadian law were understood, preceded two days of discussing the issues and developing a "game plan" for the presentation of the appeal. By happy coincidence while I was on library duty I ran into the QC who heads the set of Chambers from which I used to practice. After the usual pleasantries he declared that he wished to persuade me to come out of retirement and return to the practice of the law. As usual his timing was impeccable. Working on a really interesting and difficult case took me back to what I enjoyed most. I needed no persuasion.

A few administrative things have to be sorted out and then I will be back at work, back doing what I do best (although I only do it moderately well). I have long been a believer in the old sayings, one of which is never say never. I did say never in 2005. On meeting old colleagues since then and being asked when I will be back "never" was the response also in 2006, 2007 and 2008. That was then. This is now.

Hi-ho, hi-ho it's back to work I go.

Why I'm no longer here

Those nice fellows Messrs Pogo and Wadsworth have kindly expressed concern for my wellbeing, so I will endeavour to put their minds at rest and explain why I decided to stop blogging.

True though it is that I have a dicky ticker, failing liver and still-swollen leg, I haven't felt so hale and hearty for years.

I decided to stop because I feel I have said everything I have to say and am not prepared to repeat myself continually in order to keep the blog alive.

Being primarily an essay blogger rather than a provider of snappy short comments or data, there are only so many topics you can cover before engaging in pretty dull repetition. I drafted many pieces over the last few weeks but didn't publish them because the points I was making had already been made, sometimes more than once. It was enormously frustrating and I knew it was time to say "thank you and goodbye".

The writing has been on the wall for a while, hence the fall-off in the number of postings over the last few months. I could keep the blog open and post every now and then when something novel or unusual happens in politics, the economy or the law, but that isn't consistent with what this blog has been and I wouldn't find it satisfactory. I can still make any points I really want to in comments elsewhere.

It has been a wonderful experience and has helped me develop my thoughts on a wide range of subjects. It has also been hugely flattering to know that people deliberately visited to read what I had to say and were prepared to spend their time debating points I had made. But when it's time to stop it's time to stop. And now it's time to stop.

Time gentlemen please

I think I've said everything I want to say, except this:

A very big and sincere thank you to all those who have taken the time to comment on my meanderings, especially those with the good sense to agree with me.

As the old song goes, it's been great fun but it's just one of those things.

And now to a new chapter in my life. Goodbye everyone.

The impenetrable problem with rape

The crime of rape has three elements: (i) there must be intercourse (vaginal or anal, the distinction between buggery and rape was removed some years ago), (ii) the victim must not have consented to the act and (iii) the perpetrator must not have believed that consent was given. Most, but by no means all, contested allegations of rape revolve around consent. Either it is in question whether the alleged victim consented or the defendant asserts that he (or she) genuinely believed the other party did consent.

A typical case involves a woman alleging that she did not consent and the male defendant saying he believed she did consent. Sometimes the woman is not contradicted when she says she did not consent and the trial revolves solely around the state of mind of the man. Say it is indeed the position that the woman did not consent but that the man believed she did. From her point of view what was done to her was every bit as bad as if the man knew or believed she did not consent. From the man's point of view he did nothing wrong because there were no signs that the woman was not a willing participant. In such a case the woman is a victim because she was forced to have intercourse against her will, however the verdict should be not guilty because the man believed she gave consent. It's not a happy state of affairs.

Take a slightly different example, again the woman did not consent but it is not clear whether the man believed she consented. For so long as guilt must be proved beyond reasonable doubt, the verdict should again be not guilty. Again the woman is a victim but the man's guilt has not been proved.

For tactical reasons it is sometimes best not to challenge the alleged victim when she says she did not consent - it might be that such an attack could backfire for the defence where the woman is seen as vulnerable. In many cases, however, the woman's consent and the man's belief in consent revolved around the same evidence. If she showed no outward signs of lack of consent, that is consistent both with her actually consenting and with the man believing she consented.

There is only one way to ensure that a conviction for rape follows where the woman did not consent to intercourse and that is to remove any need for the man's state of mind to be considered. This is fraught with difficulties because the man could then be convicted and given a lengthy sentence when there was no way in which he could have thought he was doing anything wrong. That is just as much of an injustice as it is for a woman to find her attacker is acquitted because of his belief even though she did not consent. A half-way house is possible by reversing the burden of proof when it comes to assessing the man's state of mind. Once the jury is satisfied that the woman did not in fact consent, it could then be for the man to make a positive case that he believed she did consent. In such a situation reasonable doubt would not help him, he would have to prove that he positively believed she consented. Although it would be unusual for the burden of proof to be placed on a defendant in a serious case there are numerous examples in the law of defendants having to prove particular defences once the prosecution has laid the necessary foundations to make a case against him.

Whether reversing the burden of proof would improve conviction rates is pure speculation. One possible result is that more attention will be focussed on the woman's state of mind in cases where, at present, a tactical decision is taken to concentrate on the man's state of mind. If his state of mind has to be proved and hers only has to be subject to a reasonable doubt, it would not be surprising to find a shift in tactics to match the shift in the law.

I have never read of any proposed change in the law that provides a sound answer to the fundamental difficulty arising in cases where the woman does not consent but the man believes she does. Politicians can bleat until they are blue in the face about the need for a higher conviction rate in rape trials, but for as long as the law takes account of the man's state of mind their protestations will just be hot air.

A true charity

Last week we received a sad reminder of what real charities do. The former footballer and football manager Sir Bobby Robson died at the age of 76 after having suffered from one type of cancer or another for more than fifteen years. During that period he set up the Sir Bobby Robson Foundation to fund research related to cancer and, in particular, to assist in clinical trials of new anti-cancer drugs and treatments.

The Sir Bobby Robson Foundation is funded by private and corporate donations, using Sir Bobby's name and reputation and those of many other figures from the world of football to persuade people and companies to part with their cash. This type of charity is the very epitome of what a charity should be. The work it funds could be funded out of taxation if someone in government chose to do so, as it is Sir Bobby decided he wanted to see more spent in the field so he went about raising money specifically for that purpose. Could other aspects of cancer research make a case for additional funding? Could other areas of medicine make a case? Of course the answer to both questions is that they could, but that is nothing to do with it because it was Sir Bobby's decision what should happen to the money raised in his name.

It is reasonable to infer that those who have given to this charity would not have volunteered to pay additional tax in the same amount. Even if they had paid voluntary additional tax they would have had no say over where it went once it was in the hands of the Treasury. Instead they chose to delve into their post-tax income to fund a specific area of work regardless of whether the government considers it of sufficient priority to warrant additional money.

That is at the heart of true charities. They are about individual priorities rather than priorities laid down from on high. This reflects the position that has been taken consistently through time, until very recently. The law has not asked the question "is this organisation a charity"? Rather it has asked "is the purpose for which this organisation exists a charitable purpose"? The distinction is extremely important because it places the emphasis on the general purpose for which an organisation exists not on the specifics of how that organisation seeks to attain that purpose. The reason for this is that different people have different views of the benefit of certain types of activity which are considered by law to be charitable. Because charitable donation is an individual thing, reflecting the values of individual donors, the law does not claim to have better judgment than the individuals who make voluntary donations. Provided the general purpose of the donee falls within the established categories of charitable purposes, the wishes of individual donors are respected.

For example, preventing suffering to animals is a charitable purpose, both under the old law and under the Charities Act 2006. Those of us with the good sense to despise cats can recognise that others take a different view and an organisation dedicated to preventing suffering to cats is, on the face of it, fulfilling a charitable purpose. Of course there are certain formal requirements to ensure that such an organisation is indeed concerned with its stated charitable purpose before it can be registered as a charity, but all of that is secondary; if its stated purpose is not charitable it doesn't get off the starting blocks.

As with so many things, the current government considers charitable status to be a political matter and has placed one of its most loyal Labour Party puppets in charge of the Charity Commission so that only those organisations that further Labour Party policy will be afforded the tax and other privileges that go with being a registered charity. Recently they decided that education is only a charitable purpose if it accords with the Labour Party's view of what schools should do. This was never an issue before because government recognised that all educational facilities are beneficial to some children and that was sufficient in itself for bona fide educational establishments to be afforded charitable status.

The danger with this new approach (which is almost certainly unlawful) is that it introduces narrow political considerations into a field which, for more than four hundred years, has stood outside factional politics and has respected the values and judgments of the little people whether or not they accorded with the views of the government of the day. Part of the process of politicising charities has been to refer to them as "the third sector", the other two being government and private business. Instead of charities being numerous separate organisations dedicated to specific charitable purposes they are lumped together and even have their own Minister of State. Once they have been classified in this way the government can seek to justify ever greater regulation and control, citing the amount of money charitable organisations administer as justification for any amount of interference. Once that is accomplished it is inevitable that the "third sector" is treated as something for government to control in ever increasing detail; in effect making it a tool of government policy rather than a diverse collection of individual organisations each with its own priorities, procedures and aims.

Where does the Sir Bobby Robson Foundation stand in this brave new order? At the moment it can operate as Sir Bobby wished it to - adding research facilities which did not otherwise exist and concentrating its work in the north east of England. But for how long? When will it be required to merge its work with other cancer research conducted within the NHS? When will it be required to limit its research into only those matters government considers a priority? Who knows, but I'm not holding my breath.

Others write about the misuse of charitable status by overtly political campaigns, details of many of which can be found at fakecharities.org. That is bad enough. To subvert the very essence of charitable work by seeking to impose value judgments based on political considerations over and above the values and judgments of individual donors is to deny the very basis of charity.

The most pointless task in history

No, I don't mean creating a few thousand non-jobs with a billion pounds of money we don't have or seeking to defend the indefensible about the adequacy of equipment provided to UK troops in Afghanistan. We are back to my gammy leg.

By Monday the hippo-strength antibiotics prescribed by my GP were not even making a dent in the spread of infection and my right lower-leg was looking like a prosthesis discarded from use in The Elephant Man for being too gruesome to be true. The GP referred me immediately to a local hospital to which I was admitted without delay, put on intraveinous superjuice and told I could be incarcerated for up to ten days.

The hospital is arranged in numerous wards of varying sizes, all of them split into lettered sections known as bays each containing six beds. My first port of call had me in Bed 1, a quiet fellow with gastric troubles in Bed 2, argumentative drunks in Beds 3, 4 and 5 who had been together for many days and enjoyed little more than shouting their ignorant opinions on a wide range of topics, and a quiet old fellow in Bed 6 who appeared to want nothing more than to die after having spent two nights with Messrs 3, 4 and 5. Two things were clear from the beginning. There were no circumstances in which I was going to get involved in the "debates" and sleep would be impossible.

It was while on this ward I had my only encounter with the Consultant in charge of gammy legs. At least I presume that's who she was, she introduced neither herself nor her colleague by either name or rank but drew the curtain round my bed and started looking and prodding in a manner I would expect of a consultant and she certainly had the saggy, unmaintained features of someone who has spent many years working in the NHS. After looking at my leg and expressing agreement with earlier diagnoses she noted I had a history of liver problems and took it upon herself to try stabbing her bony fingers in the general direction of that troubled organ. My jacket was drawn shut apace, the sheet removed from my covered limb and I pointed, saying firmly "I think you'll find I'm here because of my leg - this is the one, here". She looked as though I'd just slapped her with a wet trout which, had it happened, would have been highly appropriate considering her facial features and general demeanour. She went off in a huff, never to be seen again and to remain anonymous for evermore.

By this time it was about 11pm and my mind turned to ways of amusing myself during the sleepless hours to come without engaging in conversation with the drunks. Hope lay in the fact that it was E Bay. Just before midnight bids appeared to have closed and the quiet chap in Bed 2 and I were moved elsewhere, far away. Only two others occupied the new Bay on our arrival, a hunched religious fundamentalist and a man practicing for the World Coughing Championships. The latter proved a captive audience for the former who, fortunately, spoke at mild volume. Sleep was difficult, as it had been for the last few days, but it was reassuring that pain rather than vocalised idiocy was the cause. No improvement was noticeable until Tuesday afternoon just after receipt of my second set of injections for the day. The redness started to recede ever so slightly and the swelling followed suit. At the same time two beds became available in a much nicer ward. Only I was invited to view these sumptuous properties and so the perfect setting was found for the remainder of my sentence.

No doubt time on a ward with other people will always be slightly troublesome, particularly for someone who thrives on solitude, but this was probably as good as it gets. Bed 1 featured an East European junkie of impeccable manners, Bed 2 a cockney junkie with the same excellent trait, in Bed 3 was an elderly gentleman of subcontinental origin who enjoyed a good moan and lengthy loud phone conversations with family and friends but showed himself to be of warm and generous spirit if those conversations were any evidence, I had Bed 4 - opposite Bed 3 and enjoying a splendid view from the window, Bed 5 contained a young oriental fellow who spoke no English and the occupant of Bed 6 was always hidden under his bedclothes and too ill to do anything except fart.

8am Wednesday saw the eighth set of injections being administered followed shortly afterwards by a visit from a new doctor, a fine looking young lady without a single truttaceous quality. She too strayed onto the subject of the FatBigot liver and was asked "what's that got to do with my leg?" The wry smile showed her bosses' ruse had failed. Shortly after the ninth set of injections following lunch on Wednesday a short nap was required, during which I ran a high temperature and sweated like a pig. On waking, all fever had passed although the pain in my leg was intense for about an hour. It was clear the nastly little bugs had put up their final desperate fight for dominance, only to be defeated by a combination of the 21 large pills and 18 massive injections of antibiotics administered over the previous 124 hours. They were beaten by modern medicine, not a single crystal or drop of homeopathic waters proved necessary, and a day later injections themselves were no longer necessary. I was granted parole on condition I continue to take seven pills a day for the next ten days to make sure all trace of the little buggers has been eliminated.

But anyway, what's all this got to do with "the most pointless task in history"? On each of the three wards graced by my flabby presence others were subjected to visits from relatives and some, even, by people they liked. It's such a very cringeworthy thing to witness. Let me give just three examples.

The quiet fellow with gastric difficulties, who I would estimate to be about thirty-five years old, was visited by his mother. When he did not telephone her as expected on Sunday she went round to his flat and on getting no reply called the police who broke the door down. He was already in hospital and now faced the cost of replacing his front door as well as the potential loss of all his personal property because it was not left fully secure. Her visit comprised an hour-long tirade against her stupidity during which it transpired that a neighbour knocked on what was left of the door while the police were inside and informed them that the occupant had left in an ambulance a couple of hours earlier and that his girlfriend was out of town on business. The words "unthinking stupid old woman" featured in the address to the jury.

Then there was the challenger for the title of World Coughing Champion. His wife nestled down in the way only a certain type of middle-aged lady can nestle. Those old enough to remember Les Dawson and Roy Barrowclough as Cissy and Ada will know exactly what I mean. She wasn't going to risk any of her words missing their target, so she said nothing as she bustled onto the ward in her raincoat and bonnet, snuggled her ample backside on and over the edges of the reasonably generous chair and fixed her husband with a glare he obviously knew well. And then she started. Many years of experience had taught him not to interrupt and a good hour-and-a-half monologue followed, ranging from the state of the cat's bowels and the price of the weekly shop to the most important topic of all - her husband's inadequacies. If ever someone was turned from having a nasty cough to wishing for a terminal condition, it was him.

The third example was the kindly subcontinental gentleman. He has one child, a son aged around forty, who brought his rather frail mother along. She was clearly very distressed to see her husband of long-standing in a state of both immobility and pain and he knew he had to try to cheer her up. It seemed to work, but by the end of the exercise the poor man was exhausted.

And so I ask - what is the point of hospital visits?

My own experience is limited to my only previous sentence to a term of hospitalisation, when I had a heart attack a few years ago. I had visits from relatives and friends and found it all utterly tiresome. The only news I ever had to impart was that a heart attack hurts like billy-o but the pain ceased after I was drugged up to the gills and I would go home when the doctors decided it was appropriate. Apart from that it was pointless smalltalk. My final visitors on that occasion were a neighbour who is a dear friend and her niece whom I have known for many years. You simply couldn't meet nicer people but I had nothing to say to them. It was an hour of sheer torture when all I wanted was to be left alone.

This time round I contacted all those likely to threaten to visit and made clear that I did not want visitors, thank you very much. I had books to read and people to observe, I wasn't going to have that spoiled by spending time saying "it hurts less than yesterday and expect it to hurt less again tomorrow". This spell inside has proved to me beyond any doubt that visiting people in hospital is the most pointless task in history

A cup of tea with Mr Darling

Nothing incenses an old Trotskyite like profit. It has been observed that banks are charging higher margins than they did before the financial crisis hit. All the usual special interest groups are rallying round to condemn this wicked greed, shouting from the rooftops that Bank of England base rate is only 0.5%. Today the hapless Chancellor of the Exchequer, the inaptly named Mr Darling, joined in the shouting and said he was going to drag the High Street banks' big cheeses in for a chat. He didn't say he was planning to force them to reduce their margins but that threat was lurking in the background. This impending meeting was first disclosed to the government's official leakee-in-chief and reported by him last Thursday. According to Thursday's leak it is not just the banks that received injections of money from public funds who will attend but also the four largest lenders who had the sense not to tie themselves intimately into the State machine.

It is entirely understandable that both businesses and individuals would like a return to the days of cheap credit but there is no escaping the fact that credit was too cheap and backed by too little security, resulting in significant losses when the borrowers could not repay. You can't have it both ways. Either you lend to decent or good risks and cover your arse with security (in which case the risk of an overall loss from this business is kept low) or you lend willy-nilly and take only partial security (in which case you can hardly be surprised when it all goes pear-shaped). And, of course, the people who are hit hardest are those who over-stretched themselves, the little people for whom Mr Darling has so much compassion that he wants more of them to enter the lion's den.

Having spend a good three or four years moulding a massive pear the banks have woken up to the error of their ways. They don't really have any choice. Not only do existing losses have to be covered but they know that in a deep recession more losses will be incurred as businesses close and individuals lose their jobs. None of this is any excuse for usury but we are not talking usury we are merely talking rates that are a higher than in the mad days.

In his interview with Labour's favourite BBC Poodle, Andrew Marr, this morning Mr Darling said he wants banks to rebuild their balance sheets and that he wants them to lend more. In all of this there is a curious twist. As everyone knows only RBS and Lloyds took the Chancellor's twenty pieces of silver, Barclays, Santander, Nationwide and HSBC kept well away from him. The terms on which RBS and Lloyds were rescued seem to include requirements about lending policies (according to the Pre-Budget Report and today's interview). No doubt these are vague to the point of being useless, nonetheless the Chancellor can say that they made promises about lending and hint that they have broken their word. The other lenders are operating in the real world in which all the usual forces - supply, demand, costs, human error and all the rest - combine to determine the amount they can borrow, the amount they can lend, the margin they apply and the security they require. Absent a cartel operating there is no reason why HSBC or Santander could not undercut the "nationalised" banks and steal a lot of business yet it hasn't happened. Why not?

I am not privy to the workings of the big banks' boffins but the most obvious answer is that they know they have to charge substantially more than they did a year or two ago because they cannot raise cheap wholesale money and they need to cover existing loss-making loans and those anticipated to creep out from under a stone in the next year or so. They do not have a magic money tree of the kind so beloved of socialist politicians, they have a real business to run and just as the prudent individual tries to put a little aside for a rainy day so do well run banks.

One thing said by Mr Darling really made me chuckle. He said "... because of the fact that we've got into this recession, we ... need them to lend money ... that's why we recapitalised them ... and that's why they've got to live up to the promises they made". If we look back to the time of the recapitalisation, we find that he announced the recapitalisation scheme on the 18th of November. There is reference in paragraph three of his statement to the House of Commons to the government imposing terms as to "lending policy and wider public policy issues". Perhaps these wider public policy issues included something about the recession, I know not. Even if they did, just six days later he told us how damaging the recession would be in his Pre-Budget Report, he predicted a contraction in GDP of between 0.75% and 1.25% in 2009. Presumably any obligation to help fight recession is limited to a recession of that magnitude rather than the 3.2% we seem to have experienced so far.

I would love to know why he can't be brave for once and tell people the truth rather than just peddle soundbites to make him look busy. Why can't he say "the days of cheap credit are over, the days of 100% mortgages are over; it's a different game now and you just have to adjust your lifestyles accordingly"? Could it be because he thinks there are more votes in leading the charge to blame the banks? How very cynical I have become, it must be the horse-suppositories.