The Scots Law Student

In a rather ballsy employment action a German police officer has successfully won the right to get paid for dressing himself before work.

The idea is that police officers are required to wear a uniform to do their duties and that putting on that uniform takes time. It is estimated that it takes an officer about 15 minutes to suit up for work, that adds up to months along the lifetime of an officer. It’s about a week (45-50 hours) a year that he should either get as annual leave or paid worktime says an administrative court in Münster.

I’m against the idea of unpaid overtime myself too but this seems quite remarkable as a concept. It seems wrong to only cover people who have to put on a uniform in the morning before going to work and not people who just have to wear clothes when working. The quantum also seems to work on the basis of how long it takes you to get ready so, for example, an employee who wears a three piece suit would spend slightly longer than someone who wears a two piece suit and thereby is due slightly more money from their employer. I think as a precedent there’s really quite a lot you could do with this one.

This action is actually extremely serious – there’s a union behind this one and they’re using this as a test case with thousands of related actions to follow should the police waive their appeal or lose again. It would cost the German state a fortune if this goes through.

In summary to all my German readers – there is suddenly an economic case for wearing a scarf to work every day and you should immediately stop wearing slip on shoes.

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In light of Paul Chambers this is possibly the riskiest post on this blog. What follows are criticisms of the security services (not the real Security Service, just airport staff, I’m not crazy), comments about holes in security processes and the word “blow” is used repeatedly in various different contexts. I can only hope and pray that Scotland’s public interest differs from England’s.

Disclosure:

I think a lot of airport security is a bit of a farce designed to look busy with little to no protective value. The images in this post are cropped, but otherwise unedited, screenshots taken from the security pages at www.glasgowairport.com and it really does say these things on the site.

I like security

I’m going away on my holidays soon and I was looking up the airport baggage restrictions so I’m not forced to post my luggage home or something. I’ve written about the restriction on liquids for the blog before which I consider a particularly ridiculous piece of security theatre.

The big reason I find it so offensive is that I most definitely would like my life to be protected from people who want to blow up my plane, and if my life is on the line I don’t want stupid rules about taking your shoes off and only buying drinks after you’re through the scanners when they could actually be doing something else that might save my life. Other reasons include generally not liking stupidity, or being hassled unnecessarily (“will you remove your shoes?” “why?” “in case you blow them up”) and the mind boggling costs involved in stupidly hassling people unnecessarily.

The 100 ml rule

Generally in any kind of security, computer or airport, somewhere in the middle is both the natural compromise and the worst option – it’s neither particularly convenient nor particularly safe. The 100 ml rule is a classic example of this.

As far as liquids being dangerous and the “100 ml rule” are concerned there are only two possible questions raised – either:

1. Liquids, gels and pastes are dangerous. In that case why are you allowed to take them onto a plane with other people? (No one’s allowed to take 100ml of gunpowder in a clear plastic bag) or,
2. Liquids, gels and pastes aren’t dangerous. Well, in this case why aren’t you allowed to bring as much as you like? (After all, lots of Scottish ex-pats would like to blow their weight allowance on Irn Bru)

I also don’t understand why 100ml of liquid, gel or paste explosive wouldn’t be enough to make a big bang or why terrorists couldn’t organise and pool their 100ml bottles together to make a bigger bang? Also, why are liquids only dangerous if you have them in carry-on? You can have your entire weight limit in liquid explosive stowed in the hold (it’s against the airline rules on explosives but, after all, you are a terrorist) that’s simply not looked at or tasted.

Tasted?

There’s some serious problems with the testing scheme as well:

This goes for baby milk and medicines, I’m not sure if it covers human/animal liquids or toiletries or perfumes but there’s kinda no reason why it wouldn’t.

Firstly, just tasting something isn’t actually a test for anything. In every movie where a cop sticks his finger in the white powder and tries a bit he then sends it to an actual forensic lab to be looked at properly. “I stuck my finger in it and had a bit” is never going to stand up in court. All you’re testing there is if someone will drink weird things out of a bottle if you ask them to. That’s a game very drunk students play.

Secondly, I don’t know if anyone’s realised this but I think, if I was planning to blow up a plane that I was on, then risking poisoning to convince the security guy to let me on the plane would be a total no-brainer. However, if I was on medicine and I was ordered to take a dose (or possibly more than a dose) outside of my prescription to prove to a guy with a plastic nametag and no medical degree that it was medicine I’d need to say no. The suicide bomber would be the one you’d let on the plane.

Baby milk

You’re expected to open and taste a full half of your baby milk. That’s just a weird policy – again, if baby milk is potentially dangerous you should damn well test it all if it’s going on my plane and if it’s not dangerous why are you testing any of it? Half is just not the right amount of testing to do.

The irritating thing to remember when looking at this rule is just how reasonable and common sense some of the restrictions are – no grenades, for example. That’s perfectly fine by me, I’m all for keeping grenades off planes.

And finally

…there are crazy things like this:

Seriously, they make you drink-test your medicine cabinet and breast milk from little bottles in a clear plastic bag but you get to take a pressurised gas cigarette lighter on board a non-smoking flight. Weirdly you only get to take one – yet again, if it’s dangerous why let any on at all and if it’s not dangerous why can’t you take two?

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It is a “risk calculus”, it’s true and we should accept this however something has to change if we’re in an era when military advisors can tap the side of their nose and say “you never know” when journalists ask what exactly they’re spending forty five billion pounds a year defending us from. It’s a number so big you have to write it out or it doesn’t register.

There is a huge vested interest in the arms industry and there’s really nothing that cannot be justified if you say it’s in the interests of national security. However it’s completely ridiculous to just pour money at something on the off chance it happens in the future. You’re in trouble if you start doing that anywhere else – there has been huge outrage at the amount of vaccine and antiviral drugs that were stockpiled to deal with swine flu that turned out to be unnecessary even though it would have saved millions of lives if they had been needed. Yet, even then, considerably larger amounts of money are spent making sure we’ve got enough Eurofighters so we’re able to adequately shoot down the military jets that our enemies just don’t have.

There is always a problem of “fighting the last battle” because that’s really all you can be sure of – evidence based defence policy is really pretty tricky stuff. Obviously I’d still like evidence based policy to come into defence because the current policy of “I have a (generally faulty) kind of outdated product I’d like you to finance the production of and then buy” is killing us financially. The lack of evidence from the future is why you have ludicrously unhelpful naked body scans and liquid restrictions at airports – 9 years ago some terrorists hijacked a plane and no one wants it to happen again. The problem is that you never want to be the guy who relaxed the restrictions, just in case a plane blows up the next minute and you have egg on your face so it becomes a persistent challenge to be tougher than the guy before you.

That’s why Britain is planning to spend up to (some say at least) one hundred billion pounds on a nuclear deterrent. We’re never actually going to fire it, and no one thinks we’re going to, but having it scares off the Soviet Union. I’m not convinced it actually scares off suicide bombers (the hint’s in the name) that are pretty much the only big ticket enemy that’s attacked British soil this century.

That is why it is crazy that Trident is not included in this year’s strategic defence review. It’s absolutely crazy to earmark the biggest expense and something that just sits around being there and then argue that everything else that’s cheaper has to be more efficient.

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From the Sun

A police support officer remained on guard outside the house last night.

To police guard? Wait, what?

This was a horrible story about an urban fox that had snuck in an open patio door unnoticed, found a bedroom with two sleeping babies in it and attacked them. It’s horrific but the root cause was basically fixed once you threw the fox out and shut the door. Beyond needing to do something what is the police guard possibly going to achieve there? You’ve basically just tied up a police officer for a week or two until the press get bored.

It’s very important to note that the full facts of the Israel Flotilla situation are not clear and it is unlikely, given the amount of emotion that it has generated, that it will ever be fully known. I wasn’t on the ship so I have no idea what went on but I do await an independent inquiry. Personally it stinks to me, there are a lot of broad criticisms that “international law isn’t real law” but that doesn’t apply here, the two big areas of international law that are enforced and people follow are how to treat diplomats and how to treat shipping. No one ignores Vienna because you don’t want your own diplomats hassled in return and the same applies for shipping. You have to go a really long way to be able to justifiably board foreign flagged, civilian ships transporting aid to your enemy. It’s a presumption that shipping shouldn’t get messed with and really you have to prove why you should be able to rather than other people proving you shouldn’t.

That said, I think it is weird that so much is made about if the ship should have been there or not. The implication seems to be is if the ship shouldn’t have been there, if what it was carrying was bad, its mission was inflammatory or if they were violent when boarded then the boarding, shooting etc was justified. I think firstly that last one’s arguing from the consequences but secondly the earlier ones are also forms of the they were asking for it defence.

It’s a strange argument that crops up in quite a few areas – for example non-consensual sex is often “distinguished” from rape on the basis that the victim was asking for it. I’m not convinced this is much of an argument, even if you really were asking for it. In consent based crimes literally asking for it’s a pretty good legal place to be (this is called giving consent) but, for example, if it’s dressing provocatively then it’s not really you asking for it. In intention based crimes it’s even less helpful – a bank robber who kills a hostage who says “shoot me instead” isn’t going to get off. The idea is simply that a bank robber shouldn’t shoot anyone whether they’re asking it for it or not. Part of living in a functional society is learning to not shoot the people you think are asking for it because eventually everyone would get shot at least once (even if just in self defence).

In this case the formal name for the asking for it defence is a red herring – it diverts attention from the original question. The answer to “was Israel right to have landed soldiers on the ship” isn’t “what was the ship doing there in the first place?” it’s really a qualitative opinion along the lines of “yes” or “no”. Similarly “was X right to have non-consensual penetrative intercourse with Y” isn’t answered with “did Y accept a free drink from X?” It’s fairly subtle and superficially seems on topic but it’s a digression all the same. The ethical guideline is that you don’t get to do bad things to people just because they’ve done bad things themselves, and logically if that was the case that would just mean that other people are allowed to do bad things to you (and no normal person thinks this). This is the general argument for why burglars don’t leave their human rights at the door.

That’s not to say that asking for it is not a good argument in some cases. It is an established principle in delict (tort if you’re a big silly and aren’t Scottish) that no actionable injury results from one who puts themselves into a dangerous situation and sustains reasonably foreseeable harm (so, for example, if you are injured during a tackle while playing football you can’t sue the other player whereas if he pulls out a gun and shoots you you can). So if you actually are asking for it you generally can’t sue for damages later on. Where you can pull it out is quite limited, by virtue of being a consent based defence, because it’s not enough to just know it’s dangerous but you have to actually consent to being hurt and that’s quite tough. Generally people use contributory negligence to be an easier form of this. It’s of limited use in criminal law and, for example, there are a large number of cases where wholly consensual sadomasochism was judged to be ABH (and in R v Brown the victims were even judged to be aiding and abetting their own actual bodily harm, which possibly reflects attitudes to homosexuality rather than, y’know, justice)

The interesting thing about this is that the asking for it defence isn’t even a particularly thorny issue and if you ask them directly people generally accept that raped women don’t actually ask for it, but that it is so intuitively attractive. People like a good guy and a bad guy and stories where both people are, if not actually as bad as each other, at least lacking clean hands are just depressing. We like to go “well, that burglar shouldn’t have been robbing the house, give him both barrels” when really it’s important to stop and say “why should the other man have given him both barrels?” This is why people like making up brutal things to do to paedophiles or terrorists, it’s easy.

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As spotted on @antonvowl:

XKCD has a good reminder not to overthink the blogging thing today. There’s a lot of people who will sell you the social media web package but really what you’re looking for is what the guy in the crowd thinks.

XKCD #741: "Blogging"

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We have a new Prime Minister, so election fever is pretty much over for now but I was listening to an address on human rights by Aharon Barak yesterday that really puts voting into perspective.

In September 1999, an expanded panel of nine judges of the Supreme Court of Israel unanimously repealed the former governmental guidelines regarding use of physical means during interrogations, this is part of what Judge Aharon Barak said:

This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties

The Nuremberg Defence is “I was only following orders” – it’s what a number of the accused at the Nuremberg Trials plead after World War II to explain why they had run concentration camps, invaded Poland and committed the Holocaust. The defence was strengthened because the reason they followed orders is that they, and possibly their families, would have been killed by the Nazis if they had refused.

The modern day equivalent is the crazy jobsworth (it’s one way in which good and bad things today are a pale shadow of the past), there is no prospect that anybody will have their families shot and they’re just following orders because they’re on a power trip. It’s a mentality that seeps into lots of areas – train conductors and traffic wardens are common examples but it can occur anywhere someone has a little power that they cynically eke the most out of. It is not the best look for anyone.

The recent General Election in Britain saw a 4% higher turnout than last time, not an all time high or anything, and naturally polling stations were utterly swamped as a result. Instead of, for example, putting their hands up and saying “yeah, our bad, we didn’t think you’d all want to vote” a number of presiding officers went to the press to point out that it was the dirty, unwashed masses’ fault for not following the rules and spoiling their nice, tidy election. People wanting proof that the customer service ethic in Britain is dead could do worse than polling stations complaining about voters. It’s not only the Slackoisie who like to bunk off 5 minutes early even if their work isn’t finished.

It’s not all bad – in Sheffield, returning officer John Mothersole apologised to voters who were turned away, said “We got this wrong” – this is technically true except that he as returning officer potentially made the decision but the apology is good. Even better, a number of stations weren’t stupid enough to get it wrong in the first place and handed out polling cards to those queueing and bringing people inside the polling station before closing the doors (so as to obey the rule to close but not turn people away). These polling stations – one in Lewisham and two in Newcastle deserve considerable applause.

However, Nick Baldev, who is the specific crazy jobsworth I’m writing about just now, showed a remarkable amount of gall and told the BBC:

“Many did not have their polling cards, which significantly adds time. Some people went to the wrong polling station. And… the absolute laziness from the elector by not joining queues when they arrive, returning at a later time only to find a longer line and re-turning at 2200 BST, which, as it clearly states, is closing time.”

I would note that this apparent nutter in charge of a polling station speaks in military time, so that doesn’t bode well anyway (another term for the crazy jobsworth is the “Little Hitler”) but it’s not conclusive proof of jobworth-ness, however he puts the blame on the voters for making their job harder, calls them lazy and points out that rules are rules. These are stereotypical jobsworths actions and shows a thoroughly detestable attitude.

There are some arguments that there are rules and the rules are there for a reason and so on but it’s an unusual situation because these rules are stopping people taking part in the democratic process. Democracy isn’t the only way to make laws but it’s the way we’ve chosen to do it so we should follow it. The reason that we are expected to obey the law set down by a democratic Parliament is we had some role in setting up the system in the first place so if you’re stopping people voting the rules that you’re expecting them to obey (because they stop them voting) don’t represent them. The Americans fought a war over this issue.

Also, “the rules are there for a reason” is exactly what you’d expect a crazy jobsworth to say whereas a non-crazy non-jobsworth would say what the reason is. The problem here is the reason for the rule that the polling stations stop work at 10 is “so everyone can get home.” I’m big fan of getting home myself but it’s not really going to let you send hundreds of voters away. The idea is to stop voters arriving at midnight when the count is taking place rather than to send the people who are waiting in the queue away.

Geoffery Robertson points out that the right to take part in the democratic process is a human right and urges people turned away to claim for compensation, he puts a figure of about £750 on it. Interestingly human rights is one area where there is relatively little difference between Scotland and England & Wales. I agree with him and also urge that people were turned away by the crazy jobworths in England and Wales should contact Liberty which is campaigning that this never happens again.

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Logic is very important to law. Depending on who you ask it’s all there is to law. A problem that lawyers have is that they have somewhat given up the advantage of surprise the moment they say they’re a lawyer – I don’t know how effective emotive pleas are if they come from someone you know is being paid to say it regardless of their personal feelings. I think it takes the shine off it slightly. That leaves you with logical argument to persuade people with.

There are a lot of other areas where logic is also extremely important. Causation in science is probably the biggest example in normal life. Homoeopathy is getting a lot of attention lately as the low-hanging fruit of implausible alternative therapies and a lot is being made of the niggling issue that bruises which go away may not go away because of the infinitesimally small amount of water in which arsenic was dissolved but then diluted away you drank. The sceptic community is very vocal about people who use this sort of thing as proof that homoeopathy can cure everything.

“I feel it worked for me, therefore it works for everyone” is not good logic, it’s technically called “inductive logic” which is generally fine as long as you question your presumptions (eg, that it actually did work for you) and don’t rely on it too much. Of course, if your entire argument is extrapolating a major premise from a minor premise, stop and get a new argument. It probably won’t stand up very well. You can get away with it if no one challenges it but the problem with legal disputes is that someone generally does.

Theskepticguide.org have compiled a list of 20 of the most common logical fallacies that they experience. It’s really worth using them as cautionary tales so that you don’t end up getting stuck with an argument that cannot withstand scrutiny.

Ad hominem

An ad hominem argument is any that attempts to counter anothers claims or conclusions by attacking the person, rather than addressing the argument itself. True believers will often commit this fallacy by countering the arguments of skeptics by stating that skeptics are closed minded. Skeptics, on the other hand, may fall into the trap of dismissing the claims of UFO believers, for example, by stating that people who believe in UFO’s are crazy or stupid.

This is very common in normal life and I’ve fallen for this one myself – it’s very tempting to spend your time as a respondent proving that a claimant is a bad person who deserved what happens to them when actually what you need to do is look at what you’re required to prove under applicable law.

Slippery Slope

This logical fallacy is the argument that a position is not consistent or tenable because accepting the position means that the extreme of the position must also be accepted. But moderate positions do not necessarily lead down the slippery slope to the extreme.

Although this is a logical fallacy it is a perfectly acceptable policy argument. It is often within a court’s discretion to consider policy arguments, but I wouldn’t feel comfortable actually relying on it to any great extent just because it’s so vulnerable to questions like “yeah, but what if we don’t immediately go out and kill all the children?”. There’s a lot you can say in an essay that a court might do that a court might never actually do.

Tautology

tautology is an argument that utilizes circular reasoning, which means that the conclusion is also its own premise. The structure of such arguments is A=B therefore A=B, although the premise and conclusion might be formulated differently so it is not immediately apparent as such. For example, saying that therapeutic touch works because it manipulates the life force is a tautology because the definition of therapeutic touch is the alleged manipulation (without touching) of the life force.

I actually really disagree with this one, I think what they mean to say here is just “circular argument”. If you really can base your argument on a tautology you’re actually on excellent logical ground. A tautology is something that is necessarily true. A circular argument is terrible, unhelpful to you and should always be avoided but if you rely on something that logically has to be true (or the universe doesn’t work) you’re not going to be wrong about it. For example “an armed robber is a robber who has a weapon” is a tautology, which means that if you can prove (to the standard of proof) the two points of 1) he was a robber and 2) he had a weapon he must be an armed robber, if you’re prosecuting him for armed robbery this is exactly what you’re there to prove. I find it really helps me to work out what legal issues are at question if I actively try, as much as possible, to reduce all logical questions to tautologies.

Tu quoque

Literally, you too. This is an attempt to justify wrong action because someone else also does it. “My evidence may be invalid, but so is yours.”

As far as I’m concerned as a bright eyed, idealistic LLB student who sees the world in strictly black and white this is the worst thing ever. It turns out, surprisingly, that bad things can happen to bad people. There’s simply no good reason why someone who did something wrong shouldn’t be able to get legal remedy for wrongs done to them.

This is why, for example, Napier v Scottish Ministers was right to grant Article 3 relief to a prisoner who was held in inhuman conditions even though he was in jail (if I recall correctly he was even awaiting trial at that point – merely accused). There’s no good reason to breach the human rights of people held in jail. It doesn’t work to say “well, they’re bad so you can be bad to them.” That just doesn’t follow – it’s a tu quoque fallacy.

Unstated Major Premise

This fallacy occurs when one makes an argument which assumes a premise which is not explicitly stated. For example, arguing that we should label food products with their cholesterol content because Americans have high cholesterol assumes that: 1) cholesterol in food causes high serum cholesterol; 2) labeling will reduce consumption of cholesterol; and 3) that having a high serum cholesterol is unhealthy. This fallacy is also sometimes called begging the question.

This is an important one – it’s so important to challenge your own presumptions when you’re looking at any legal problem. I think the best example I ever had was a time I was (too) casually reading a hypothetical scenario and I assumed the guy did it and actually he hadn’t. As you might guess this had an effect on what my answer ended up being. Law school essays get around this, through IRAC, by very much encouraging you to spell everything out.

They have a much longer list at the above link that’s worth checking out.

But, on a personal note, the big one that annoys me more for reading comprehension reasons than any logical issues is:

Begging the question

(So annoying I’ve mentioned it twice)

This does not mean you need to immediately state the question that you think needs asked. When it says “beg” it doesn’t actually ask for the question, it just means someone is assuming a principle. It means that the other person hasn’t asked a question they should have asked, not that you need to suggest one.

“That begs the question – what colour is my bike?” is a pet peeve of mine. It just means that someone assumes your bike is yellow when they should investigate their foundational principles. It doesn’t mean you should tell them they should ask you what colour your bike is. Just say either “you’re begging the question there” or “you need to ask [x]” but avoid saying both.

H/T to Crispian Jago.

You might also want to check out the gripping blog of Diane Levin who every month, like clockwork, debunks a logical fallacy. I’ve covered it on the blog before and it’s excellent.

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