Understand Your Rights. Solve Your Legal Problems
When someone is first charged with a crime, there is a long process between the initial charges and the possibility of a trial. In fact, very few cases ever make it to trial at all, between the possible resolutions like having a case dismissed, agreeing to a plea bargain with a prosecutor, or even outright dismissal of the charges based on something like a lack of evidence. As you can imagine, this means that most defense lawyers have an extensive amount of experience defending their clients in the lead-up to a trial, but do not have nearly as much experience standing up in court during a trial. This is where a trial lawyer comes in.
In the United States, there is nothing barring a defense lawyer from acting as a trial lawyer; in fact, there is nothing stopping a defendant from representing themselves through a trial, although this is actively discouraged. If you are unable to afford private counsel, you will be given a public defender because having legal representation is very important in the United States. Take a look below to learn more about why trial lawyers are so important, and why they are different from a defense lawyer.
A defense attorney is a lawyer who focuses on representing a client who has been charged with a crime, beginning with their arraignment where the official charges are read. From the arraignment on, a defense attorney will be with their client every step of the way, and will advise them on entering a plea, making statements during the pre-trial proceedings, and ultimately crafting a path forward to a positive or favorable outcome for their client.
Defense attorneys will handle negotiations with prosecutors and the judge during the pre-trial process in an attempt to reach a plea deal that works for both the prosecution and the defense. In instances of first offenses, this could be a combination of a reduced sentence combined with community service, fines, drug testing, therapy, and more. Ultimately, the goal of your defense lawyer is to avoid going to trial so that you can retain a say in the matter. Once your case goes to trial, the outcome is entirely up to the judge and jury.
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If your case needs to go to trial, meaning you have gone through every step of the pre-trial and have still been unable to reach a resolution, then the next step is the actual trial. This will involve a variety of additional steps that many defense lawyers may never need to go through during their career, including jury selection, cross-examining witnesses, and communicating a clear and strong argument under the high pressure of the trial atmosphere.
A trial is so different from all of the prior pre-trial steps that in many countries, such as Britain, defense and trial lawyers are considered entirely different (known as solicitors and barristers in the UK). While there is no legal distinction between a trial lawyer and a defense attorney in the United States, any legal professional will tell you that there is a significant difference in duties and expertise between the two fields.
Given the fact that a defense attorney and a trial lawyer may be two different people for your case, it adds a new layer of complexity if you are preparing to go to trial. A car accident from The Barnes Firm shares the difference between the concepts: in the U.S, a lawyer is an individual who is qualified to provide legal advice and represent individuals in legal matters. On the other hand, an attorney is a lawyer admitted to practice law in a particular jurisdiction. Luckily, trial lawyers are there to step into your case specifically for trial and can facilitate a hand-off or collaboration with your defense attorney so that they can step into court with as much information as possible, and a clear goal for an aggressive trial.
An American Permanent Resident Card, otherwise known as a green card, has an expiration date attached to it that is important to keep a close eye on. If you accidentally run over on your green card, you will need to take immediate steps in order to minimise the impact that this lapse has on your life. Regardless of how insignificant or serious this lapse may seem once you realise it, you will likely want to hire an immigration lawyer to help you settle all of these issues and ensure that you can avoid as many negative consequences as possible.
However, there are many different possible consequences that you will face regardless of whether you have an attorney helping you through your case or not. Take a look below at some of the things that you can expect to happen to you if your permanent resident card expires and you have not taken the appropriate action to either file for an extension or been naturalized as a United States citizen. These possible impacts are important motivators when it comes to planning for the long-term process of coming to, and remaining in, the United States.
Keep in mind that an expired green card does not mean that your permanent resident status is voided, only that you will need to get a new card as soon as possible so that you can avoid some of the issues that we will list below.
When you are a permanent resident and you find a new job, your employer will likely need to see proof (they are legally required to do so) before they are able to hire you. Whether or not you are legally able to remain and work in the country under the privileges afforded you by your permanent residency, you will need to provide current proof to your prospective employer in the form of an active permanent resident card.
If you have been convicted of any felonies since you last applied for your green card, and you are trying to renew an expired card instead of taking steps before it lapses, you may find yourself in a situation where you could be facing removal by deportation. If you know that you have criminal charges on your record that could interfere with any type of residency issues, it is absolutely essential that you follow all requirements exactly to avoid issues.
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In order to travel in and out of the United States as a permanent resident, you will need to have a current green card to provide during a passport check, along with a valid passport from your home country. If you are not able to provide one, or either, of these documents as you attempt to enter the country, you may find that you are not allowed through passport control and will need to take drastic steps in order to get back into the country.
Depending on how long you allow this lapse to continue, the United States may consider you to have voluntarily abandoned your status. If this happens, you will need to prove that you intended to return in order to renew your green card, as well as a variety of other additional steps. However, this will only take place after an extended lapse.
One of the biggest challenges during any large-scale crisis is how businesses react to emerging developments. We are seeing this happen with COVID-19, with each day bringing further news. UK airlines have requested a £7.5 billion payout to aid the impact of widespread border control and hotel closures impacting the travel industry. The impact on the aviation industry has seen a drop of 24% to Boeing’s stock price to $129.61, as of March 16. In the car industry, the crisis has seen Honda close both UK and North American plants due to “falling demand”. These are just some of the many examples of the impact the virus has had throughout different sectors, with many more expected in the coming days. When it comes to the financial sectors, there has been no exception, with many companies who do not have available cash reserves in times of need, facing laying off employees or risk closing altogether. So, what are the main issues being faced amongst the financial sectors?
According to the International Labour Organisation (ILO), 25 million jobs could be lost worldwide due to COVID-19, levels not seen since the economic crash of 2008. The reason this is happening is because of the issue that many companies do not have the resources to continue to pay staff if levels of business continue to be impacted. This is why the tourism sector has been hit particularly hard with travel bans in place all over the world, affecting hotels, restaurants and bars in many usually vibrant areas. Across the financial sector, large companies including Lloyds Banking Group, Virgin Money and Direct line Insurance are set to cut more than 2000 jobs by October, this being announced before COVID-19 had become a bigger issue in the UK. The result means a lot of these planned job cuts may come sooner than expected. With more people moving away from branches and using online services instead to apply and find the information they need, such as guides to payday loans, mortgages, personal loans and more, the changes shouldn’t affect the consumer’s experience when they need vital information during this uncertain time.
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The FTSE 100 recently recorded its biggest one-day loss since 1987 on March 12, prompting anxiety within the markets that a global recession could be just around the corner. This means many of the large banking and financial organisations are having to make rapid adjustments so that at some point they can recover. Also, the pound fell lower than the dollar by 5% in just one day, its lowest level since 1985, partly due to investors unsure on how the government's stimulus package of £350 million will be financed. For finance companies in general, the negative impacts will inevitably affect how lending for the corporate and personal sector will proceed. Contingency plans will already be underway on how to minimise what’s to come.
With social distancing well underway, many who can have begun working from home. The challenges this creates for financial services include how to monitor staff productivity, ensure safe and secure connections to VPNs due to the handling of sensitive data, to the practical aspects of employees working away from the office. The communication between financial institutions and its workforce is imperative to ensure the smooth ongoing continuity of services. All of these aspects are changing regularly as we move through the crisis.
What’s clear is that from businesses to consumers, the way this is all going to pan out over the next few weeks and months is uncertain. With sales of corporate bonds and leveraged loans stalling, the hope is that the markets will pick up soon to bring the levels back up to where they were only a few weeks ago. The Treasury and Bank of England are both promising new measures to help blunt the continuing impact of COVID-19, so in the meantime, the anxious wait for a positive upturn in events goes on.
Minority shareholders (those who hold less than 50% of a company’s voting shares) are often vulnerable to oppression or abuses perpetrated by majority/controlling shareholders. This can occur because minority shareholders do not typically have the ability to affect the actions of the company. Though the law provides minority shareholders with methods to protect themselves from ongoing unfair treatment, certain criteria must be met for the courts to grant aggrieved parties relief. Shareholder oppression is more common in private companies than it is in publicly traded corporations (though it can still happen). Before a shareholder can prove that the majority has engaged in oppressive conduct, they must be able to recognize what it is and what actions they can take to gain relief from said actions. According to business attorney Wade McClure, “each situation is unique and requires an experienced professional to recognize exactly what happened, and what type of remedy is appropriate.” Listed below are common examples of shareholder oppression.
Shareholder oppression covers a wide swathe of activities that can be considered oppressive conduct. Due to the nature of business and the specific issues that each company deals with, there is not a “one size fits all” definition for shareholder oppression. Notable examples include:
● Majority shareholders making decisions that are in their own best interest while suppressing minority shareholder votes.
● Majority shareholders using their leverage to dilute minority shares.
● The fundamental change in the structure or nature of the business that marks a change in the initial agreement when the relationship was formed (i.e. loss of substratum).
● Minority shareholders being excluded from management decisions, financial decisions, and/or profit participation.
● Denying dividends (or refusing to declare) to minority shareholders in lieu of higher salaries, bonuses, or other benefits for the majority.
● Fraudulent activities carried out by the majority and/or controlling shareholders.
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There are countless examples of shareholder oppression. However, proving that majority shareholders have engaged in oppressive conduct is no easy task. This can be especially true of private companies that are not required by law to publish information about their company finances and interworkings. A successful shareholder oppression claim will require that the complaining party proves that the majority or controlling shareholder has engaged in the following conduct:
It should be noted that oppressive conduct can include actions taken against minority shareholders outside of their capacity as a shareholder. For instance, if they are discriminated against and/or given prejudicial treatment as a manager or director (that holds shares), it can still be considered an act of shareholder oppression.
Shareholder oppression comes in many forms. Most are subtle and not easily noticed. While it is certainly advisable to formally complain to majority shareholders if acts of shareholder oppression are recognized, this does not always yield positive results. In many cases, complaints are pacified and/or ignored with little to no action taken. Working with an attorney can help minority shareholders to gain relief from oppressive tactics (potentially without having to go to court). In the event that your issues are not remedied, an adept business attorney will have the right tools and experience to investigate the case and mount a strong case against the majority shareholders in court.
Most of the times, tenants are decent human beings. But there are times a landlord might get stuck with a tenant from hell who may make them question their own existence. Damaged property, nuisance, rent arrears can make your once-peaceful life a living nightmare.
Hopefully, there’s always a way out. Depending on how desperate your situation is, you can try one or several of our ways to make a bad tenant leave.
The lengthiest and costliest method to get rid of an unwanted tenant is eviction. It may take between 4 to 8 months to force a tenant out. It involves hefty legal fees, headaches, and complications. There’s also the permanent stress of being around an uncooperative tenant. He or she might, at some point, consider denting your praised possessions just out of spite. Just like divorce, eviction might get ugly.
That’s why most landlords avoid the procedure like the plague. Eviction, though, comes into play only when the tenant refuses to leave the rented premises. And he or she no longer has a legal right to stay there. Some bold landlords may resort to the so-called self-help eviction. This means that they physically throw the tenant or their stuff out of the rental without assistance from a bailiff.
Self-help eviction, with a few exceptions, is a criminal offence and landlords face potential prison time. Bear in mind that veiled forms of self-help include:
So, these are the illegal actions you could take to get rid of a bad tenant. Hopefully, there are legal ways to make sure they leave without eviction.
Self-help eviction, with a few exceptions, is a criminal offence and landlords face potential prison time.
Under a tenancy agreement, a landlord cannot raise the rent on a whim. Only if there’s a periodic tenancy, you can do it. This means that the tenancy agreement gets renewed automatically on a weekly or monthly basis. So, you can raise the rent from one month to another and make the bad tenant leave.
Under a fixed-term tenancy, aka assured shorthold tenancy (pdf), you can raise the rent when the agreement expires. So, if the tenancy expires after 10 months, waiting to raise the rent not that great. Plus, some tenants may not be disturbed at all by a rent hike.
Also, a tenant might have dutifully paid rent in the past, but their financial situation worsened and they can no longer pay on time. Try to negotiate. Your tenant might already be under a lot of pressure because of not being able to pay rent. You can help relieve that pressure through a payment plan you both agree on.
For instance, you could allow the tenant to pay what is due in smaller fractions over a month. This way you help them buy some time until they manage to get their finances back on track. Don’t forget to mention “eviction” during the negotiation phase. You’ll instill a sense of urgency in the misbehaving tenant.
You’ll be surprised by what a simple eviction reminder can do to a tenant’s mind. He or she might find the money literally overnight to erase the prospect of ending up on the streets. That scenario is all the more possible as there are countless alternative online direct lenders which can loan them up to £1,000 in as little as 24 hours if they’re willing to do their research right. Poor credit is not an obstacle either.
Surprisingly, many bad tenants will pack their things and leave if you ask them nicely but firmly to do so. Horror stories about horrendously uncooperative tenants are rare. Around 80% of tenants quit after getting a possession notice.
Possession notices are notices given by landlords to their tenants to leave. There are two types of possession notices: Section 21 Notice of Possession and Section 8 Notice to Quit. Section 21 notice must be served two months prior to the expiry date of the tenancy. The landlord doesn’t have to bring any reasons for why he would like his property back.
You can serve a section 8 notice when the tenant breaches the tenancy agreement terms. He or she might be constant nuisance to the neighbors or fail to pay rent on time.
Many veteran landlords recommend “killing them with kindness”. Even if rent has fallen into arrears, do not threaten or embarrass the tenant. Maintaining your composure is critical even if the tenant is uncooperative. If you are kind to them, they’ll feel obliged to change their tone too. You don’t have to be rude or aggressive when asking for what’s yours. But you’ll have to be firm and stand your ground.
Plus, make sure that you notify the tenant that he or she is late with payments as soon as the due date runs out. If you let the due date slide, your tenant might assume that he or she can get away with it as you don’t seem to mind.
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If everything else fails, and the bad tenant refuses to quit, you could try enticing them to leave with free cash. Some tenants will cut ties with you for as little as a few hundred pounds. Others might want a bit more. Ponder your situation. See whether you would be better off giving them cash for the keys than starting the evacuation proceedings. You don’t want to be stuck with a nightmarish tenant for several more months, either.
This method makes many landlords’ blood boil. No one in their right mind would reward awful behavior. But in the long run, it is the most effective (and less costly) way to get rid of a bad tenant.
Do you remember the TV show Silk? It was TV drama series about barristers written by Peter Moffat based on his experiences of being at the bar. If you are thinking of pursuing a career at the bar it is worth watching – you can decide what is fact and what is fiction! Below, Francine Ryan, Senior Lecturer in Law and member of the Open Justice Centre at The Open University, explains what to expect from a career as a barrister.
If you think you are the next Amal Clooney or Michael Mansfield, then there are three elements to becoming a barrister.
The vocational element is changing from September 2020. You can find out more about the new Bar Qualification rules here. The professional statement sets out the knowledge, skills and competencies that barristers must have on ‘day one’ of practice.
So, you have defied the odds and obtained a pupillage – well done! You can now start the real training to become a barrister. Pupillage is completed in a set of chambers under the guidance of a pupil supervisor. The experience of pupillage very much depends on your pupil supervisor and the chambers you are in. During pupillage time will be spent preparing pleadings, going to conferences, and attending court. The second Six builds on those experiences and involves going to court regularly. The work will be varied, you are likely to be out a lot travelling to different courts. In terms of what you do each day much will depend on which practice group you work in. Once you have completed your pupillage, you apply for tenancy which is a permanent position as a barrister with a set of chambers.
The experience of pupillage very much depends on your pupil supervisor and the chambers you are in.
One thing is for certain you definitely won’t be working 9 to 5! A lot of time is spent in court, so you need evenings and the weekends to prepare cases. If you are travelling to court a long distance away it can involve quite early starts. What many barristers enjoy is the variety of work that is challenging and intellectually stimulating. Your clerk is responsible for managing your diary. A barrister builds their reputation from conducting cases therefore you want a full diary not only to gain experience but to develop your practice. Barristers are self-employed their earnings depend on the types of cases they conduct and how busy they are.
Most barristers are attached to a set of chambers, with each barrister contributing to the financial costs of running chambers. Many barristers enjoy the freedom of being self-employed, it provides more independence and autonomy than working for an employer. Some barristers may choose to be employed and work for organisations such as the Crown Prosecution Service.
Although barristers work for themselves, they are part of chambers. The culture in many chambers is friendly and collegiate with more senior members of chambers providing advice and guidance on cases, but some barristers can find the job quite isolating and lonely. The bar council is very keen to address wellbeing at the bar and encourages barristers to support each other.
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If you are thinking of becoming a barrister, you should get involved in mooting competitions offered by your university. This will give you an opportunity to develop your presentation and advocacy skills. It will help you determine whether you enjoy public speaking and how well you can cope with the pressure and scrutiny from a judge. The Free Representation Unit also takes on volunteers and gives them opportunity to represent clients at the Social Security and Employment Tribunals. Barristers chambers offer mini-pupillages where you shadow a barrister and can gain first hand knowledge of what life at the bar is really like.
It is important to recognise that being a barrister can be quite stressful and you need to think carefully about whether this is the right career for you. Make sure you do your research, think carefully about whether a career at the bar is most suited to your personality, speak to other people to get an insight into what it is really like working as a barrister. To find out more read the Q & A with Angelina Nicolaou, a barrister at One Pump Court.
Historically, the concept of cohabitation has been frowned upon, especially in religious societies where marriage is expected before sharing the same roof. But times have changed - living together out of wedlock has, in most cultures, become a social norm.
There are, as you would expect, still conflicting beliefs and opinions on the matter, between different parts of the world. Stronger religious outlooks, for example, tend to be connected to a more negative view of cohabitation, and even where it is legal on paper, it can still be taboo within a society. That being said, modern culture is ever changing, and overall cohabitation is becoming more and more popular worldwide. Let’s take a look at the current state of affairs for 2020.
In the United Kingdom, cohabitation is perfectly acceptable. Data released in 2019 shows that the proportion of cohabiting couples was up to 3.4 million - totalling at 17.9% of couples living together. This is up from 15% just a few years prior.
This growth in popularity is echoed across western culture, but the UK is one of the most popular places for unmarried couples to settle down together and share a home. In the same report, cohabiting was highlighted as the “fastest growing family type” in the UK.
As with most places, cohabiting couples in the UK have no legal obligation to support one another financially, and there are not anywhere near the same rights as a marriage when it comes to separation. It’s no surprise then that the UK has seen a rise in cohabitation dispute solicitors.
Cohabiting was highlighted as the “fastest growing family type” in the UK.
The USA is quite a bit more complicated than the UK - not least because there is a federal government which oversees different laws state by state. As mentioned above, where strong religious beliefs are held, there is more likely to be either legislation or social expectations of marriage.
Two states, Mississippi and Michigan, have had laws on their books against cohabitation, though they are rarely enforced. It is generally accepted now to live together without being married so long as they have a proper cohabitation agreement.
By contrast, places like California recognise cohabitation and call those couples “domestic partners”. Again, these couples have no legal rights and have simply entered a cohabitation agreement, and they are not protected by any laws in the event of separation.
The law of living together in Canada is very much like the UK - it’s perfectly acceptable to live with your partner and cohabit with or without an agreement. It wasn't always this way of course - common law marriage was once a major part of society. As of 2016, cohabiting couples in Canada were around 21%. This is a huge increase from 16.4% in 2001.
South America is no exception to the vast majority of the world in that cohabitation is on the rise. It was reported that there was a boom between 1970 and 2007. In Peru, Colombia and Venezuela there has all been a rise, though it has been reported that cohabitation levels follow other negative aspects such as lower education levels. However, like the rest of the world, non-married couples are living together in harmony without walking down the aisle.
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China is big on cohabitation, with more couples opting for it than in previous generations. Though this is very much in line with patterns around the world. Older mentalities are fixed on the idea that cohabitation without getting married is immoral and unstable, though it’s said that more and more young people are influenced by western culture. A survey from 2015 shows that this rise has been quite consistent - with a huge 59.6% of couples living together before marriage who were born in the 1980s.
Travel to the other side of the continent and it’s a different story. Muslim cultures do not permit cohabitation, largely owing to strongly held beliefs against pre-marital sex. Cohabitation is against the law in places such as Saudi Arabia and Pakistan.
Islam has a large presence in much of Africa, especially in the north and the west. As mentioned, cohabitation is frowned upon if not illegal in Muslim countries. Regardless of religion, African culture is said to have seen cohabitation as socially unacceptable and not tolerated by many societies living there. Couples are said to be living together without marriage in some areas, though cohabitation is not recognised as any form of legal relationship.
In Australia, couples who choose to live together without getting married are considered to be in a “de facto” relationship. This can not be considered by people living together who are not in a romantic relationship - so essentially it is a cohabiting couple much like in the UK. De facto relationships are governed by the Family Law Act of 1975, meaning there are some rights under this law, but again, nothing like those of a legal marriage.
Legal practice management company Clio announced on Monday that it will set up a $1 million disaster relief fund to help the legal community overcome the financial challenges posed by the ongoing coronavirus crisis.
In an interview with LawSites, Clio CEO and cofounder Jack Newton said that the company intends “to ensure lawyers are set up to succeed as well as ensuring their clients can continue to get the legal help they need.”
Newton also remarked that the legal industry is “in a moment when change that the legal profession might have expected to see over the next 10-20 years will now happen in the next 10-20 days,” citing the decentralisation of work environments and the transition from on-premises technology to cloud technology as two of the most significant developments that will be seen.
Clio’s disaster relief fund, or “COVID-19 Legal Relief Initiative”, rests on four “pillars”, representing areas where Clio’s financial aid will be deployed and criteria under which people can apply for funding:
Clio has created a dedicated page on its website to explain the initiative, with an appeal to law community “leaders” to help ensure its effectiveness.
“If you are a community leader, let us know what is needed most right now and help us share this message broadly,” the statement reads.
The Serious Fraud Office (SFO) has the task of investigating and prosecuting serious or complex fraud, bribery and corruption. Aziz Rahman of law firm Rahman Ravelli outlines how the SFO works and how best to respond to it during an investigation.
Since Lisa Osofsky became Director of the SFO in 2018 she has made a number of changes. She brought a number of new senior figures into the agency, has talked of the need for greater speed and efficiency and has dropped certain long-running investigations. Osofsky also wants greater co-operation with other national and international enforcement agencies and with the business community.
Yet the SFO has made it clear that any co-operation with it must be more than going through the motions in an attempt to gain lenient treatment. This is why those who have dealings with the SFO need to know how to proceed.
Any company or individual that is investigated by the SFO – or has reason to believe it is about to be investigated by the agency – has to know exactly how to respond. This can only be done effectively if those under investigation know how the SFO functions and are able to use this to help construct the strongest defence possible.
The SFO has teams of skilled experts and unique powers. Section 2 of the Criminal Justice Act 1987 – the Act that created the SFO – gives it the power to compel any individual or organisation to provide it with information or documents that it believes are relevant to an investigation.
The SFO is also able to offer an organisation that is the subject of an investigation a deferred prosecution agreement (DPA), which is an alternative to a prosecution. A DPA involves a prosecution being suspended if the accused admits the wrongdoing and agrees to meet certain conditions. In the most recent DPA, in January 2020, aircraft manufacturer Airbus agreed to pay 991 million euros to settle bribery allegations. This was part of a 3.6 billion euro global settlement that Airbus concluded with UK, US and French authorities.
Any company or individual that is investigated by the SFO – or has reason to believe it is about to be investigated by the agency – has to know exactly how to respond.
DPA’s became part of UK law under the Crime and Courts Act 2013. As of March 2020, there had only been seven concluded. The SFO has made it clear it will not give them out to every organisation seeking one in order to avoid prosecution.
A defence lawyer with business crime expertise can challenge SFO allegations. This can lead to the SFO starting to doubt the strength of its case and even dropping its investigation. It should be emphasised that a successful challenge to SFO accusations and / or its activities is more likely the earlier expert legal help is sought.
Legal challenges to the obtaining of search warrants, the way searches are conducted or what material is seized should be made at the first opportunity. The information and material the SFO intends to use as evidence can also be challenged.
Section 21 of the Police and Criminal Evidence Act (PACE) gives people access to their material that has been seized by the SFO. The Attorney General’s Guidance on Disclosure (December 2013) laid down guidelines on dealing with the seizure and search of digital material. Both these measures are there to prevent the subject of an investigation being unfairly disadvantaged.
It is also important to note that the SFO does make mistakes. In one high-profile example, the SFO investigated the brothers Robert and Vincent Tchenguiz, searched their premises and made arrests. But then the brothers’ lawyers proved that the SFO had not properly checked the information it presented to court when applying for search warrants. As a result, the SFO paid £4.5M to the brothers and apologised.
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While challenging the SFO can be worthwhile, negotiation can also be a valuable way of obtaining the best possible outcome to an investigation. The SFO’s current Director has spoken of wanting investigations concluded quicker and of being open to making a deal. This may mean there is now a greater possibility of negotiating a favourable outcome than there was under previous SFO regimes.
But negotiating with the SFO can only be useful if you know exactly what wrongdoing - if any - has been committed. The SFO expects co-operation to be genuine. It will take an unfavourable view of any moves to negotiate with it if any information about wrongdoing that was not previously disclosed comes to light. Which is another reason why any dealings with the SFO must be considered very carefully.
The Council Directive 85/374/EEC of 25 July 1985 concerning liability for defective products came into force when products placed on the EU market were not as sophisticated as the ones that consumers are in contact with today. In particular, technologies such as self-driving cars, home assistants and artificial intelligence were science fiction, and one could even argue that they still are to some extent. Such technological advances being increasingly numerous, the question has again been asked: should the 1985 Directive be updated to stay relevant or are the general principles set forth in it (such as the "the producer shall be liable for damage caused by a defect in his product" or the definition of what a defective product is) still sufficient to ensure consumer protection? Sylvie Gallage-Alwis, Partner at Signature Litigation's Paris office, discusses the recent developments surrounding the 1985 Directive below.
To discuss the way forward, on 22 January 2020, the European Parliament Committee on Internal Market and Consumer Protection held a public hearing entitled, “Product Liability Directive: protecting consumers in the Digital Single Market”.
The stakeholders who shared their views included industry representatives, consumer representatives, the European Commission and experts. The Commission’s representatives emphasised the need to “reinforce EU’s industrial capacity to allow it to be technologically sovereign” and to facilitate innovation, enabling Europe to compete with China and the United States.
Only the Orgalim group – which represents European technology industries –argued that the Directive does not need to be modified, since it is technology-neutral and already strikes the right balance between the obligations of consumers and producers. All other stakeholders favoured the EU updating the Product Liability Directive.
The Commission’s representatives emphasised the need to “reinforce EU’s industrial capacity to allow it to be technologically sovereign”
The consensus was that the key amendments should include:
The consensus was also that the EU should consider the following questions:
Members of the Expert Group on Liability and New Technologies had in November 2019, published a detailed report, “Liability for Artificial Intelligence and other emerging digital technologies”.
Key takeaways from the report were addressed during the public hearing of 22 January 2020, where the discussion revolved around strict liability, burden of proof and development risk defence.
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A resolution dated 12 February 2020, entitled “Automated decision-making processes: Ensuring consumer protection, and free movement of goods and services”, is another development of interest. Whilst welcoming the potential of AI, the resolution noted that consumers interacting with AI automated decision making should “be properly informed about how it functions, about how to reach a human with decision-making powers, and about how the system’s decisions can be checked and corrected”.
Another important issue to be addressed is the possibility of AI and automatic decision making being used to “discriminate against consumers based on their nationality, place of residence or temporary location”.
The committee also urged the Commission to bring forward proposals to adapt the EU’s product safety rules across a broad range of areas, including the Machinery, the Toy Safety, the Radio Equipment and the Low Voltage Directives.
The resolution also stressed “the need for a risk-based approach to regulation, in light of the varied nature and complexity of the challenges created by different types and applications of AI and automated decision-making systems” and calls on the Commission to develop an “assessment scheme for AI and automated decision-emphasising that Member States must develop harmonised risk-management strategies for AI”.
Another important issue to be addressed is the possibility of AI and automatic decision making being used to “discriminate against consumers based on their nationality, place of residence or temporary location”.
On 19 February 2020, the Commission published a white paper on Artificial Intelligence - A European approach to excellence and trust. The Commission’s approach was informed by the expert report it commissioned, which found that “a person operating a permissible [AI] technology that nevertheless carries an increased risk of harm to others, for example AI-driven robots in public spaces, should be subject to strict liability for damage resulting from its operation.”
However, the report goes on to state that “Manufacturers of products or digital content incorporating emerging digital technology should be liable for damage caused by defects in their products, even if the defect was caused by changes made to the product under the producer’s control after it had been placed on the market.”
The report says that a future regime should not give “autonomous systems a legal personality, as the harm these may cause can and should be attributable to existing persons or bodies.” In short, if something goes wrong, you can’t blame the robot.
No doubt there will be a great deal more debate before the detail of the EU’s updated product liability regime finally emerge. Yet, it is already clear that the EU regime will require transparency, along with human supervision of AI systems and, ultimately, human accountability for their actions. Other important proposed changes, such as those to the definitions of key product liability concepts like “product” and “producer”, may ultimately have a wider impact on EU product liability law across the continent.
