The Spirit and the Law – consumer protection and mediums

A certain section of the British spiritualist community is protesting again the repeal of the Fraudulent Mediums Act 1951 (UK). The Independent reported the other day that the recently formed Spiritualist Workers Association (SWA) believes that the repeal of the legislation is discriminatory towards spiritualism. The Spiritualists’ National Union (SNU) which is a long-established body, backed the changes.

The government has denied that the changes are in any way discriminatory, saying that the repeal of the legislation is merely intended to pave the way for the implementation of the EC Unfair Commercial Practices law. The Consumer Protection Regulations cover all activities involving the supply of goods and services to consumers in trade or business, and like our Australian Trade Practices Legislation, looks to prohibit any activity which is misleading to consumers, and aggressive selling techniques.

The issue is that the previous act (which replaced the Witchcraft Act 1735) required the medium to have a deceptive intent or to use a fraudulent device before any contravention could be proven. Very few prosecutions were made, because it was difficult to prove dishonest intent. By contrast, it will be easier to punish or prosecute fraudulent mediums under ordinary consumer protection laws. According to this article in The Times, about £40 million is lost per annum as a result of fraudulent clairvoyant or spiritualist schemes. I agree with the author that the veracity of the religion is not being challenged: it is merely that those who provide services should be subject to uniform standards, and should not make claims that mislead or exploit vulnerable people.

When looking at the issue, I found this interesting directive by the UK Committee of Advertising Practice, which summarises its conclusions for spiritualists, psychics and the like as follows:

  • Marketers should hold documentary evidence to prove any claims that are capable of objective substantiation;
  • Marketers should not mislead or exploit vulnerable people;
  • Claims about successfully solving problems or improving health should be avoided because they are likely to be impossible to prove;
  • Claims of ‘help offered’ should be replaced with ‘advice’;
  • References to healing should refer to spiritual rather than physical healing;
  • Direct marketers should not imply that they have personal knowledge about recipients;
  • Claims relating to the accuracy of readings or guaranteed results should not be made unless they are backed up by appropriate evidence;
  • Claims about being a personal advisor to stars, the wealthy etc and claims such as ‘…as featured on TV’ should be backed up by appropriate evidence;
  • Claims relating to the length of time that a marketer has been established should be backed up by evidence;
  • Money-back guarantees should be clear and genuine;
  • Any testimonials used should be genuine;
  • Marketers should not imply that a lucky charm can directly affect a user’s circumstances;
  • Claims that a lucky charm can act as a confidence prop are acceptable if emphasis is placed on a user’s state of mind, and unproven beliefs that do not relate to the effect of a lucky charm may be acceptable if expressed as a matter of opinion;
  • Marketers offering premium rate fortune telling services should adhere to the ICSTIS Code of Practice.

Sounds eminently sensible to me…any UK clairvoyant, spiritualist or other practitioner in the alternative health sphere would do well to heed it, and then they shouldn’t have any problem with the new legislation. Legitimate practitioners need not worry, because presumably they can provide evidence of their skills, accreditation and testimonials from satisfied customers.

Some lawyers have suggested that spiritualists should describe their service as “entertainment” or a scientific experiment. Hmm, I don’t think so. Just don’t make claims that you can’t back up.

Personally, I don’t rule out the existence of talents which I cannot explain or the effectiveness of alternative treatments, although I have a fair measure of scepticism about some practices. What I very much object to is unrealistic claims about the provision of such services.

I particularly dislike some faith healing claims where, if the service doesn’t work, the fault is not that of the practitioner or the healing method, but the fault of the patient for lacking “faith” or “determination”. As someone who has suffered from illness and disability from an early age, I know that there are some things which just can’t be fixed. Don’t get me wrong: positive thought and determination are very useful. But you’re not a failure if you’re ill. The last thing you need if you are ill is to feel that somehow it is your fault. I have personally benefited from some “alternative” therapies in relation to problems with walking, including Feldenkrais, yoga, acupuncture and Bowen therapy. A friend’s mother gave me Feldenkrias training when I was a teenager after I had an operation on my legs and had to learn to walk again, and it was extremely helpful. I doubt I would have recovered so quickly or so well without it. But ultimately, some problems can never be totally “healed”.

I guess the ultimate point for all consumers is: IF IT SOUNDS TOO GOOD TO BE TRUE, IT IS! How loudly can I say it (well, type it)?

It doesn’t matter whether it’s spiritualism, alternative therapy or investment services. In one of my jobs, I used to come across a lot of share scams and investment scams, and I’ve seen some tragic cases. Indeed, there was a case in the paper this morning about the collapse of a Geelong investment firm which reportedly promised some investors returns of up to 70%. As I always tell my class: as a general rule, the return is directly proportional to the risk – the higher the return, the higher the risk!

So, to all you consumers out there, retain a measure of scepticism and don’t get carried away by extraordinary claims. I’m all for uniform standards which keep those who provide services to the public on the straight and narrow.

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The Force definitely wasn’t with him…

A drunken man in Wales dressed up in a black bin bag and cape and attacked two cousins with a metal crutch. Why would he do that? Well, apparently he wished to join the Dark Side of the Force. The cousins had recently set up a Jedi church in Holyhead, and were making a film of themselves duelling with lightsabers when the drunken man vaulted the fence and attacked them, shouting “Darth Vader!” as he did so.

Pre-sentence reports will be heard in mid-May.

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Not so much gibberish as derivative and boring

I was rather amused to see that the Judge hearing the J.K. Rowling copyright infringement case has described Rowling’s plotlines as “gibberish”.

To explain briefly, as outlined in this article from The Times, Rowling is asking the Manhattan Federal Court to block publication of The Harry Potter Lexicon, a guide to places and names in the Harry Potter series penned by Stephen Vander Ark. Vander Ark had been compiling the guide on a website when RDR Books persuaded him to publish it as a book. The trial has been very emotional, with Vander Ark breaking down in the witness box, and Rowling saying that her characters were as dear to her as children. I thought it was all rather melodramatic myself.

As I’ve explained in a previous post, I don’t think the plot lines are gibberish, but I find the series rather derivative, and Books 4 and 5 were very long, badly edited and boring. I never bothered to read Books 6 and 7, something which still amazes those who know of my voracious reading habits. Hence I was somewhat amused to see Rowling accusing Vander Ark of being derivative: her work is just a clever patchwork of motifs from other much better fantasy works.

I wonder if a better course of action for all would have been for Rowling to broker a deal whereby she collaborated with Vander Ark and fixed the bits of the Lexicon that she found to be offensive and derivative. I’ve noticed that where guides to a fantasy book deal are produced, they are often the product of collaboration between the author and a third party. A third party seems to be able to provide some perspective. But I don’t know what Rowling’s contract with her publishers is: perhaps that wouldn’t be possible. Still, it all seems unnecessarily confrontational.

Update

Further news and sensible commentary in this Guardian article, which asks how can Rowling talk about debasement when she is agreeing to the construction of a Harry Potter theme park in the US?

Although I have to confess that my sister and I went to Parc Asterix in Paris when we were young, and that was quite fun and not overly commercial from memory. We chose Parc Asterix over Eurodisney…after all, we had read our Asterix books all over France, and visited the site of Vercingetorix’s defeat in Alesia.

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God’s law and the law of the State

What happens when you have a particular group in society who are not minded to follow the law of the State, but prefer to follow God’s law as they interpret it?

Recently this question has come up in relation to Sharia law, particularly after the Archbishop of Canterbury said that some aspects of sharia law would inevitably be adopted in Britain. But the question doesn’t just arise in relation to Islam. Many religions have a group within who prefers the laws of God to the laws of the State. For example, orthodox Jews in Australia may take some disputes between one another to the Beth Din, a religious court where rabbis hand out judgment. And some indigenous Australians may prefer that a dispute be dealt with under traditional law rather than “whitefella law”.

My personal opinion is that as long as the law of God does not transgress fundamental human rights, then parties can consent to that particular law binding their actions. It is rather like an agreement to arbitrate in a contract where any disputes are referred to a mutually agreed arbitrator. The problem occurs when a particular practice or punishment which is said to be required by the law of God or tradition is illegal under the laws of the State: eg, stoning, spearing through the leg, promise of child brides etc. My personal opinion is that such things should not be allowed. The issue is slightly more vexed with indigenous tradition than it is with other religious laws because indigenous people didn’t “choose” to move here and to be subject to our laws, they were imposed upon them from colonisers. Nonetheless, as I have explained in one of my very early posts, as a feminist, I just cannot countenance the assault and rape of a teenage “promised bride” by her tribal husband, for example. Cultural relativism be damned.

It is a difficult question however, because it is a balance between religious tolerance and universal human rights (which should apply to all, regardless of race or religion or anything else).

Consequently, I was really interested to read this article in Slate about the American legal system and the Amish and the Mormons. I hadn’t really thought deeply about the conflict that would arise between State law and the traditions and laws of these two groups.

Amish are Anabaptists of Swiss-German origin who live in separate communities. They dress in conservative dress, do not use much modern technology and do not educate their children beyond 8th grade because of the “worldly values” they might learn. Study is focussed on the Bible, and children are expected to work in the fields with their parents once they leave school. They do not believe in Social Security, and do not either make payments or accept payments from the government. The educational practices and expectation that children will work in the fields has brought them in to conflict with US education and child labor rules. In Wisconsin v. Yoder 406 U.S. 205 (1972) three Amish parents were fined by the Wisconsin authorities for taking their children from school before the age of 16, but the US Supreme Court ultimately upheld the right of the parents to do this. Amish refuse to participate in wars, and their conscientious objection has also gotten them into trouble. As the article in Slate observes, the Amish have been given a fair degree of latitude, in part because they are peaceful and because they have managed to broker compromises with the State.

Mormons are members of the Church of Jesus Christ of the Latter Day Saints. They believe in the Book of Mormon. The Church of the Latter Day Saints officially abandoned polygamy after pressure from law enforcement in 1890, but some other fundamentalist groups continue to practice polygamy. The practice of taking multiple wives and taking child brides has brought the Fundamentalist Mormon Church into conflict with the law. In the last few weeks, Texan authorities raided a Fundamentalist Mormon compound after a 16 year old girl called authorities to say that she had recently borne a child to her 50 year old husband. Other US States are concerned that this raid may ruin their efforts to make Fundamentalist Mormons trust them and cooperate with them. As the Slate article outlined, a large raid on a Short Creek Fundamentalist Mormon community in 1953 was ultimately counterproductive. The Slate article concludes that the Mormon groups are in a different situation to the Amish:

But the fundamentalist Mormons groups are in a state of evasion. The ban on bigamy functions as a zoning ordinance: Plural marriage is fine in isolated communities, but not in Salt Lake City, and certainly not on TV talk shows, as Tom Green found. So long as the fundamentalists remain in hiding, the extreme ugliness of conducting raids creates a form of tolerance. They are thus in a “don’t ask, don’t tell” state of legal limbo that could break open at any time. They are outside the law in a different way.

It will be interesting to see whether the Texan raid is counterproductive or forces the Fundamentalist Mormon church into submission.

These situations remind us that the conflict between God’s law and the law of the State has many facets, and there are different ways of resolving the issue. Have a read of the Slate article and see what you think.

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Jah on their side…

This article about the collapse of a legal trial against some Rastafarians cracks me up.

Apparently the five Rastas had been charged with cannabis dealing, and the trial had been running for two weeks when one of the police officers recognised a paralegal from the defence team for one of the defendants. The paralegal was said to have telephoned the police and complained about alleged drug running at the Rastafarian temple, although she denied this. What were the chances of that?

The trial descended into chaos, and the prosecution decided not to tender any further evidence. The judge decided that the defendants should be acquitted.

(Hat tip to Dave Bath at Balneus)

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Judicial activism

The common law is an interesting and organic beast. To explain: our basic system of law is judge-made law. The common law became somewhat inflexible in medieval times, and thus many litigants started appealing to the King. The King got sick of dealing with the petitions, and palmed them off to the Lord Chancellor. Eventually, the Lord Chancellor set up his own court to deal with these questions, called the Court of Chancery (the court of Equity), which dealt with cases on the basis of conscience and fairness. It was a parallel system, separate from the common law, but when the two conflicted, it was equity which prevailed over common law: Earl of Oxford’s Case (1615) Mich 13 Jac 1; 21 ER 485. The Chancery courts used an inquisitorial system rather than an adversarial system, and accordingly, cases before these courts became increasingly drawn out and inefficient, as famously portrayed by Dickens in Bleak House. Thus, the legislature decided to “fuse” the two systems by means of the Judicature Acts of 1873 and 1875. Accordingly, a judge in a “fused” court could apply both rules of equity and the common law. In all Australian States apart from New South Wales, Judicature Acts were also enacted shortly after the UK versions were enacted. New South Wales did not fuse its common law and equitable courts until 1972. Consequently, the New South Wales Equity Bar produced some fine and learned equity lawyers, but they also tended to be very conservative indeed.

Obviously, these days, legislation (enacted by Parliament) plays a very much greater role in the development of the law, but the common law and equity are still important, and still keep developing.

Why the mini lecture at the start of this post? Well, I was reading a New South Wales Court of Appeal case called Harris v Digital Pulse Pty Ltd [2003] NSWCA 10, and it raises some interesting questions about “judicial activism”. Judicial activism is a perjorative term. It is directed at judges who ignore precendent, and instead mediate a dispute in accordance with their own personal prejudices about what is appropriate social and political policy. The Mason Court of the 1980s was frequently accused of judicial activism, as it produced decisions giving rise to an implied right of political freedom of speech in the Constitution and the Mabo decision, among others.

In Harris, Heydon JA (now a judge of the High Court) had this to say about the role of creativity and the judiciary at [456] – [458]:

As to Sir George Jessel MR’s account of the development of equity in Re Hallett’s Estate, it is true that the rules of equity have changed from time to time, and true that individual Chancellors – and Masters of the Rolls, Lord Keepers and Vice Chancellors – have effected these changes. It is also true that the rules can be changed in future. But those deeds of single judges were done when there was no appellate jurisdiction in the House of Lords, or very limited access to it, at a time before modern parliamentary democracy had developed, and members of parliaments consisted largely of wealthy men who in turn supported Cabinets composed largely of aristocratic oligarchs whom it was difficult to interest in the details of private law. What individual judges did in those constitutional and forensic conditions is not a sound guide to what modern Australian courts, at least at levels below the High Court, can do. A single equity judge in the time of Sir George Jessel MR had the power, the competence, the authority and the capacity to compel acceptance from other judges which only the High Court has now, at least where the change goes beyond the application of existing principles in a new way or marginal extensions of the law.

In In re Diplock. Diplock v Wintle [1948] Ch 465 at 481-2 Lord Greene MR, Wrottesley and Evershed LJJ said of the equitable claim made in that case by next-of-kin against persons who had wrongly received the testator’s assets under an invalid bequest:

“if the claim in equity exists it must be shown to have an ancestry founded in history and in the practice and precedents of the courts administering equity jurisdiction. It is not sufficient that because we may think that the ‘justice’ of the present case requires it, we should invent such a jurisdiction for the first time.”

The defendants relied on those words. That is a sound modern approach, at least for courts below the High Court, and at least where anything more than non-radical change is involved.

Sir George Jessel MR’s judicial life coincided with the time when democracy in a modern form was beginning and the responsiveness of Parliament to social or legal ills was starting to develop. It was a time when the judiciary was small, highly skilled and united. It is now large, less skilled, and far from entirely united. For courts below the High Court to act in the manner of the single judges sitting in Chancery who made modern equity is to invite the spread of a wilderness of single instances, a proliferation of discordant and idiosyncratic opinions, and ultimately an anarchic “system” operating according to the forms, but not the realities, of law.

As I read it, his Honour is essentially saying that no judge except one who is on the High Court can develop a new doctrine of law or equity. Anything else is “judicial activism”. Lower court judges just have to apply “the law”. The judgment of the High Court in the case of Farah Constructions Pty Ltd v Saydee Pty Ltd [2007] HCA 22 displays a similar sensibility, which was one of the reasons why I suspect it was penned by Heydon J.

It is very important that like cases be decided in a like manner, otherwise unfairness could result. This is why the common law has the doctrine of stare decisis or following precedent. So if X fell off her bicycle and got compensation, and I fell of my scooter in almost identical circumstances, I would expect to be treated in much the same way as X. It would not be fair if the trial judge had an unreasoning dislike of scooters and decided that I should not get compensation because she did not like the proliferation of scooters in society. Nonetheless, if there was a “right answer” as to what the law was in every dispute, we lawyers would be out of a job. The whole point is that one can usually argue the point either way in cases which actually make it to trial.

Next point: not all cases will be exactly like a case which went before. Indeed, surely if it was exactly like a previous case, it is likely that one side’s solicitors would have advised them to settle. In the event, if the case is not quite like any previous case, the judge has to look at the cases and legislation which govern the area and decide how the law applies to this slightly different situation. The more different the situation is from anything that has gone before, the more difficult it is for the judge to decide on the basis of existing law. What a judge should do in this circumstance is develop principle in a way which is consonant with previous cases, but which also adapts to the new circumstances. In this way, the judge is not indulging in judicial activism. She is extending the law out to a new situation, but in a way which is consistent with principle.

Indeed, it could result in great inflexibility and injustice if a court cannot deviate from principle which has gone before even though the circumstances are different to anything which has gone before. This was one of the reasons why the law of equity arose: because of the failure of common law courts to adapt to changing circumstances and difficult situations created great injustice. Heydon JA’s judgment seems to me to be out of touch with the spirit and genesis of equity. Also, it may be scary for some lawyers to know this, but the law is slowly changing and developing all the time. Otherwise we would still be stuck applying some kind of medieval common law, unchanged for millennia.

Now, a very important point. What happens if I have a novel legal situation, but I cannot afford to appeal all the way to the High Court (as Heydon JA seems to think necessary)? In that circumstance, it is up to the trial judge to make the best and fairest decision that he can, and to show some creativity. We can’t all afford to take litigation up to the High Court and hire silks. (Well, I doubt if I could afford to indulge in any litigation whatsoever, but fortunately for me, that’s not an issue I’ve had to face). Obviously a trial judge cannot overrule a High Court decision, and cannot ignore law that has gone before. But I definitely think there is room for a trial judge to show creativity in a situation which is novel and does not bear any analogy to a previous case. And it should not be necessary to require litigants to go all the way to the High Court. Such a point of view is unrealistic and elitist.

Aaah. I feel much better now I’ve gotten that off my chest.

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Toddlers as witnesses

The other day, I was driving my 2 year old daughter to creche. She announced with satisfaction and great confidence from the back of the car, “One day, Mummy broke my fingers.” I saw her make an illustrative wiggle of the said fingers in the rear view mirror.

“What?” I cried with horror. “I have never done that. What are you talking about?”

“Mummy shut my fingers in the door at Nanny and Papa’s and I did cry and Nanny got bandaids for me,” she explained.

This incident is the bane of my life. About a month ago, I had started closing the door to the outside loo at Mum and Dad’s when a little Miss stuck her finger in between the hinges, and the door started to close on two of her fingers. Of course, as soon as I heard the cry, I stopped the door swinging, and although there was a little bruising, there was no blood. I was simply horrified, and also burst into tears. What was worse was that my daughter blamed me, and wouldn’t give me a kiss when she went to bed. But all was forgiven the next day when she woke up and announced, “I love you Mummy!” Or so I thought…

She keeps bringing the incident. Clearly, I am not entirely forgiven. Like her mother, she is a bit of a drama queen, and “Mummy broke my fingers” sounds far more dramatic than “Mummy accidentally bruised two of my fingers, but I was fine by the next morning.”

The moral of this story is: Never trust a two year old to recount events accurately.

I couldn’t help thinking of this when I read of a legal bid for a toddler to give evidence at a murder trial. Apparently, half way through the trial, it became apparent that the poor little boy could have possibly witnessed the killing of his mother. He was two years and five months old at the time of her death, and is now four years old. The boy’s account suggested that it was not the defendant who “hurt” his mother, but the defendant’s son (also the boy’s father). Justice Lasry refused the application for the boy to give evidence. In the event, the defendant was acquitted of murder but convicted of manslaughter.

Of course I can understand why the defence would have wished to lead the child’s evidence, but I think that the judge was correct to refuse the application. My own experience with my daughter the other day has convinced me even more firmly that the evidence of a toddler is not reliable!

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