Saturday, 18 June 2011

ACS:Law's Andrew Crossley Tells Tribunal 'I Will Fight This Tooth and Nail'

Friday was expected to see the MediaCAT v Adams & Ors cases back at the Patents County Court. Otherwise known as the ACS:Law cases, lead by Andrew Crossley - the solicitor that has since been forced to close down his law firm and been declared bankrupt, the cases have been ongoing since January this year.

However, despite on Thursday evening and during Friday the court’s cause list showing the hearing as taking place, it was evident on the internet elsewhere (primarily Twitter) that the hearing was cancelled, possibly to be rescheduled.

The primary source of the information that the hearing on Friday was cancelled was Ralli - the firm solicitors leading the case for the defendants (MediaCAT being, in case of any doubt, the prosecution). It’s not yet apparent as to the cause of the cancellation or if it is likely to be rescheduled.

For those of you that have thus been denied your expected ACS:Law news I thought I’d write a short post.

I was picking through my notes from the short appearance of Andrew Crossley before the Solicitor’s Disciplinary Tribunal a couple of weeks back (prior to his hearing proper, expected in October), and found a few bits I’d not previously blogged that I thought I’d share.

Here they are:

In discussions around his requests to the tribunal Crossley stated that while he inherited the ‘processes and procedures’ of his speculative invoicing scheme from Davenport Lyons he had adapted and improved upon them. Crossley told the tribunal that his operation was ‘far superior’ to that of David Gore and Brian Miller at Davenport Lyons. Evidently his recent experiences (ie. the collapse of the claims he started, the failure of his firm and his own bankruptcy) have failed to have any impact on his lack of humility.

Crossley also said that the allegations of the Solicitors’ Regulation Authority (SRA) ‘verge on implying criminality’ and observed that ‘it would appear that my practising certificate is on the line’.

However while arguing that he would struggle to fight the case given the ‘inequality in arms’ of his resources versus those of the SRA he came out with a turn of phrase which gives every indication of an interesting hearing in October, declaring of the case against him: ‘I would fight this tooth and nail’.

As he might’ve said in a website statement in the past, ‘exciting times ahead’.

Sunday, 12 June 2011

ACS:Law Data Breach: How the ICO Took Eight Months to Reach a Conclusion

In September 2010 ACS:Law published a backup of its email system to its public-facing website. The emails were subsequently downloaded and made widely available on the internet. Contained in the emails were a massive amount of confidential information. Most seriously the emails contained the names and addresses of many thousands of individuals that ACS:Law alleged had made unlawfully copyright works (often including pornography) available on peer-to-peer networks.

It has since been heard in court that the evidence upon which these accusations were based was extraordinarily unreliable and often simply wrong. Exactly how prone to failure these systems were is unknown but suffice to say that for a single law firm to generate in excess of five hundred complaints to its regulatory body in under two years indicates quite some significant degree of error.

The data leak was the singular most serious breach of personal data ever seen in the UK. The Information Commissioner’s Office began investigating the breach on Monday 27th September 2010, shortly after it took place. It was on 9th May 2011 that the ICO issued a Monetary Penalty Notice to Andrew Crossley, the sole solicitor, owner and data controller of ACS:Law. The amount of the penalty had initially been determined at £200,000 – to have been the largest ever issued, determining Crossley’s number-one spot in the list of unlawful breaches of the Data Protection Act. This was subsequently reduced by the ICO to just £1000; it transpires that a petition was filed for Andrew Crossley’s bankrupty by HM Revenue & Customs in December 2010 and the bankruptcy order was granted in May 2011.

Some, though, have questioned the delay the ICO took in reaching their determination. Following a series of requests of the ICO under the Freedom of Information Act there is some light to be shed.

What follows is a timeline of the events between the breach and the issue to Andrew Crossley of the Monetary Penalty Notice:

27/09/10                first ICO case file created (COM0351377)
28 & 29/09/10        ICO to ACS Law - initial enquiries asking for response by 12/10/10
08/10/10                response from ACS Law to ICO
13/10/10                ICO to ACS Law requesting more information
13/10/10                response from ACS Law
20/10/10                ICO internal meeting – establishing further information required
29/10/10                ICO to ACS Law requesting more information
09/11/10                ACS Law to ICO – response to further enquiries
01/12/10                ICO site visit to ACS Law offices
21/12/10                Internal meeting to discuss decision and amount of any CMP
23/12/10                Enforcement case created (ENF0366446)
19/01/11                Notice of Intent sent by ICO to ACS Law
28/01/11                ICO to ACS Law agreeing extension of time to make representations until 01/03/11
01/03/11                ACS Law to ICO – representations in response to Notice of Intent
09/03/11                internal ICO meeting to discuss representations
21/03/11                ICO to ACS Law asking for further financial information and enclosing blank form to be completed
07/04/11                ACS Law to ICO returning financial information
14/04/11                ICO Internal meeting to discuss CMP
20/04/11                ICO to ACS Law – advising will reduce penalty but requiring sworn affidavit
03/05/11                ACS Law to ICO sending affidavit
09/05/11                ICO to ACS Law sending Monetary Penalty Notice (MPN) (dated 09/05/11)
06/06/11                Any appeal to the MPN should be lodged by this date as stated at the end of the MPN. Any extension of time to appeal is the decision of the Tribunal. The ICO will likely be informed of any appeal directly by the Tribunal.

I have carried out a little statistical analysis (download the spreadsheet here - feel free to add comments) of the periods of delay / waiting in this timeline in order to determine which parties are accountable for the time taken in reaching a conclusion. It is evident that both Andrew Crossley and the ICO have dragged their heels on this case.

The ICO unnecessarily delayed matters by, among other issues, agreeing (at Andrew Crossley’s suggestion) on the 11th November not to visit ACS:Law’s offices to progress the matter until the 1st December and extending the 21-day period for written representation in response to the Notice of Intent (to issue an MPN) by an additional 18 days; almost doubling the period laid down in statute.

A pie chart sets out where the delays happened. You can draw your own conclusions on this one:

Kettling & A Generation We Can Be Proud Of

In November last year there was, in among all of the other protests that have become increasingly frequent in the last year, a protest against the increase in university tuition fees and the scrapping of the EMA (Education Maintenance Allowance), among other educational issues.

At that demonstration a large number of people including many school children were kettled by police for up to eight hours; this despite the High Court ruling in April this year that police have previously used the tactic when there was  “no reasonable” justification for doing so.

Photo credit: bobaliciouslondon
The regular kettling of protestors at demonstrations and the apparently unjustified detention of individuals in London on the day of the royal wedding appear to be just a couple of indications that the Metropolitan Police are increasingly protective of government policies and the image of senior figures, rather than the security and interests of the general public.

There is good news however. While some would deride the students that chose to protest for their right to an education (probably a tosser at the Daily Mail or Conservative Cllr Andrew Mennear, who described the day of action as “organised truancy”) I congratulate them on standing up for their beliefs and values. It is deeply regrettable that they were kettled as a punishment for doing so.

Last week though, a few of the students kettled at that protest announced that they will be dragging the Metropolitan Police back to the High Court to account for their actions. Good for them.

I’m sending them a letter (and my very best wishes):

Will Gilmour
* ██████████
Adam Castle, Rosie Castle and Sam Eaton
c/o Acland Burghley School
93 Burghley Road
12 June 2011

Dear Mr Castle, Miss Castle and Mr Eaton,

I wanted to write and commend you for your commitment and chutzpah in seeking a judicial review of the kettling tactics employed against children by the Metropolitan Police at the education protest in November last year.

It was important that the BBC reproduced your statement on their website that, "As children we can't vote, so one of the best ways for us to voice our opinion is through protest and if that's stopped or inhibited by kettling then where are we left?" It is essential that the freedom to protest is recognised and protected.

I think your observation that, “It seemed like a punishment [for attending a] protest” is very accurate and is one which is both fully understood and fully intended by those that sanction such measures. Clearly this is unacceptable.

There appears recently to be a trend against lawful protest. Actions taken at the anti-cuts and the education protests, and the arbitrary arrests (detention and subsequent release without charge) on the day of the royal wedding are damaging to a developed and democratic society.

It disturbs me, as it evidently does you, that the police seem to be willing to misapply certain powers, intended to protect the public, to an extent that they are used as a punishment. Such actions are carried out without a determination as to if they are just. It could easily appear to some that the police are acting to quell the intent of the public to protest (and to punish those that peacefully do so) in the interests of certain political interests rather than the protection of the general public.

It is high time that the police should be held to account for such actions and I am delighted that we have a generation who is prepared to voice its opinions and act on those beliefs in order to ensure that those responsible for unjust actions are answerable.

I read in your school’s newsletter your statement that you, “will not sit back and do nothing. We will defend our freedom to protest. We will defend our human rights.”

Good work! I hope that July goes very well for you. Good luck also, Adam and Sam, for your GCSEs.

Yours sincerely,

Will Gilmour
The case is due before the High Court for a two-day hearing starting on Tuesday 5th July.

Saturday, 4 June 2011

ACS:Law, Davenport Lyons and the Ability of Solicitors to Self-Regulate

So, it’s Friday, time for the weekend and just over half way through the Solicitors’ Disciplinary Tribunal (SDT) considering the conduct of Davenport Lyons lawyers Gore and Miller.

This morning the SDT also played host to Andrew Crossley who was listed for a ‘directions’ hearing. Essentially this means sorting out some housekeeping business so that everyone knows how the next stages will play out.

Andrew’s hearing was due to start at 9.30am but actually didn’t kick off until 9.45am. A representative from consumer group Which? who’d been present at 9.30am was told by court staff that it didn’t start until 10am and thus ended up missing the first 15 minutes (when the key substance of the hearing was itemised). Thankfully, Peter Steel, the solicitor heading the disciplinary action for the Solicitors' Regulation Authority, was kind enough, when asked during a break in the proceedings, to re-enumerate the points. More on those and the outcome later on.

Meanwhile, on to the one-day slice of the seven-day hearing that is Gore and Miller’s conduct under the microscope.

Today was concerned with expert testimony (and toward the tail end of the afternoon, the refuting by the counsel for Gore and Miller of the key grounds for disciplinary action). It was evident that there had been, earlier in the week, other (‘non-expert’) witnesses in the shape of some of those innocents accused in the speculative invoicing scheme that the two solicitors have created and pioneered. Some might argue that they are actually likely to be the most ‘expert’ of all those that the court will hear, but they were all done with prior to today.

Today it was the turn of two expert witnesses who had worked together and produced a report that they agreed upon. The witnesses were then each cross-examined in order to find the subtle (or not so subtle) differences in their opinions. An expert witness had evidently been supplied by each side. Andrew Clark had been retained for the SRA and Professor Peter Sommer for Gore and Miller.

Clark was first to stand and was questioned by each of the barristers: Tim Dutton QC for the SRA and a gentleman whose name I didn’t catch for Gore and Miller. The lady from Which? that was present and myself both used the same word to express our opinions of his testimony: ‘measured’. He did really only say exactly what he wanted to and was evidently very well briefed. Very experienced as an expert witness, Clark has worked on over 100 (albeit criminal) cases with these sorts of issues. He’s also worked extensively with the Federation Against Copyright Theft (FACT).

Sommer was a ‘chattier’ gentleman but in so doing was more inclined to express a personal opinion outside of the plain facts of the case. As a professional expert witness his lack of bias or otherwise was questioned by Dutton for the prosecution. The answers Sommer gave certainly created, at least to this observer, a distinct impression of bias.

When asked about the evidential reliability of the systems and data supplied by DigiRights, Sommer volunteered that they were, he thought, adequate for the writing of a ‘first letter’; despite having not been asked any question framing it in such a manner - but obviously a viewpoint Gore and Miller would be happy for the court to hear.

He did appear to be very much framing answers in a the manner of a politician, answering the questions he (or the defence) would have hoped to have been asked, rather than strictly providing the strictly factual responses which would have been appropriate.

I found myself repeatedly flinching at the inadequacies of the ‘expert’ testimonies even despite my own limited knowledge of the technologies and processes under discussion.

There was repeated discussion of the immediate re-sharing of ‘pieces’ of data in a bittorrented file. I was resigned that the technical possibility of a leeching-only bittorrent client was not even going to be mentioned. It was 12.43pm before the possibility eventually got mentioned in a chance exchange.

There were other alarming evidential discussions which caught my attention:

There was considerable discussion about the size of game and film files (ie. generally comparatively large files) and the time taken to download these. This was discussion in the context of the plausibility or ease with which a person (other than the subscriber) using a connection for unlawful filesharing might be discovered by the subscriber.

Repeatedly it was stated (by both experts) that a game or film file would take ‘many hours’ to download. An exchange took place discussing a hypothetical download whereby the connection at a cafĂ© might be used for the downloading of such a file. The expert witnesses contended that it would take ‘many, many hours’ to do so and would effectively be implausible. That was bad enough (I’ll explain why in a moment if you didn’t already catch on)...

A while later, one of the tribunal members asked of the experts if it was possible to make the download in parts; in other words, if the download of a game could be started in one place then paused and continued elsewhere. Someone’s thinking, I thought! – the very possibility I’d mentioned to my neighbour in the courtroom. To my horror though, Sommer responded that while it was ‘theoretically possible’ in practical terms it would not stating that instead of ‘many hours’ you’d be talking about ‘weeks’ to complete the download!

What neither ‘expert’ witness observed, and which is the reason I’ve made use of those inverted commas around that word, is that the speed with which a bittorrent download completes is highly dependent on the number of peers making that file available. THIS MASSIVE AND FUNDAMENTAL FACT WAS NEVER MENTIONED! In fact, if a plentiful supply of people are making a file available then the only limits to your download speed are likely to be either the settings in your bittorrent software or the limited bandwidth of your internet connectivity. The suggestion that it would take ‘weeks’ to complete even a large download simply because you chose to make the download in several stages at different locations is absurd and erroneous – and in expert testimony, sworn under oath in a courtroom that’s simply not good enough.

The lack of consideration given to the number of peers sharing a file also led to the stated misinformation that downloading a large file (such as a game or film) takes longer than a small file (such as a single audio track). In fact an obscure MP3 might take far longer to download than a freshly pirated and widely shared game. The tribunal knows none of this – and that’s a third of the reason I’ve titled this blog post as I have. This tribunal isn’t effective because the evidence it’s hearing (and I’ve only seen one day of seven) is flawed. How can it be just? How can it be effective regulation of the profession if it’s based on incorrect testimony?

The second third of my concerns comes back to some further examples of Sommer’s apparent lack of impartiality.

Sommer at one point suggested that, given that the identified IP address (upon which letters of claim were based) can only identify a router/subscriber and not an infringing individual, that it ought to be down to the subscriber to ask of his/her ‘near neighbours’: “Have any of you got file sharing software? Have any of you been – quote unquote – ‘naughty’?” Quite how such an assertion is within his remit as an 'impartial' expert witness is beyond me. He also seems to have overlooked how entirely inappropriate it might be for a person to ask of their neighbours if they’ve been piggybacking their internet connection for the purposes of downloading pornography. Would he really expect an honest answer if they had; and would he really expect to speak to those neighbours ever again even if they hadn’t?

Sommer’s final calamity came when he so readily agreed with an ‘explanation’ to a problem presented by one of the panel of the tribunal. She drew attention to a letter of claim sent by Davenport Lyons and asked how it would be possible (there having been earlier discussion of potential reasons for misidentification of letter recipients as infringers) for there to be FOUR IP addresses associated with the SAME SUBSCRIBER (and indeed listed in the letter) at the SAME MOMENT IN TIME. The moment-in-time part of the question didn’t get posed until the late stages of the enquiry and it was apparent that Sommer was going to rely upon dynamic IP addressing for his reply. When she pointed out that all four addresses were given the same time stamp he was momentarily stumped until the counsel for the defence volunteered ‘mistranscription’ as an explanation which Sommer went on to swear under oath as a reasonable explanation.

Bearing in mind that Davenport Lyons sent 6113 letters of claim I consider it unlikely that the IP addresses and times were manually transcribed. I’ve never yet seen a mail merge that was capable of ‘mistranscribing’ anything; certainly not something which would account for an error of this nature. Far more likely an explanation in my mind is a poorly managed spreadsheet, erroneous data collection or a malfunctioning untested version of a certain proprietary monitoring software.

The final third of my concerns about the failure of the SRA to regulate the profession falls to timing. It’s now June 2011. How slow can this process be? It’s all far too little, far too late. It’s not ‘regulation’ at all. To regulate something is to control something; to prevent it from doing what it otherwise naturally might.

The reliance of the Solicitors’ Regulatory Authority on the Solicitors’ Disciplinary Tribunal to keep its members in check is ineffective. If they were called the Solicitors’ Disciplinary Authority it might be a match of name to function, but as it stands it is not. Punishment after-the-fact is not helpful and does not protect the public from the likes of Gore, Miller and Crossley. All of the hurt, harassment  and damage caused by these individuals were caused in the past – years in the past (though continue to affect individuals). The years taken to try to address these problems, coupled with the glaring lack of efficacy of the process itself can only mean that the SRA and the legal profession are failing badly to self-regulate.

I wanted to end on some good news to this post. So I’m happy to report some positive outcomes from the Andrew Crossley directions hearing.

It transpires that the application for directions was actually brought by him (rather than the SRA - the prosecution). He had a number of requests which he wanted the court to order. They were:
  1. He wanted SRA to fund his costs (as he’s lacking finance and was afraid he’d suffer an ‘inequality of arms’ against the SRA’s budget for his prosecution apparently set at £85k)
  2. He wanted to exclude all expert evidence, again on the grounds of expense
  3. He wanted an order to prevent the SRA making any further requests for disclosure of documents from him
  4. He wanted copies of all of the files concerned with the current Davenport Lyons (Gore / Miller) tribunal and…
  5. …a delay on proceedings on his case at least until the DL tribunal is concluded.
The tribunal did extend slightly some of the timescales (for the exchange of documentation) from the dates initially suggested by the SRA. There are a whole list of dates they have now ordered starting from the 30th June (tribunal to be in receipt of statement setting out facts and matters in dispute) right through to 30th September (content of court paper bundles agreed). The final pre-court stage will take place no less than ten days prior to the hearing and that will be the submission to the tribunal of the skeleton arguments (ie. the outline cases, pre-court-cross-examination).

These dates make it very apparent that the hearing is likely to be some time early to mid October, so keep your eyes peeled.

As to the outcomes of Crossley’s five applications for directions: every single one was refused. No SRA funding, no exclusion of expert testimony, the SRA are free to request disclosure of further documents from him, he can’t have the Gore/Miller documents and there can be no unwarranted delay just because the Gore/Miller case is ongoing.

At least they did something right eh.

Wednesday, 1 June 2011

Davenport Lyons' Solicitors Disciplinary Tribunal: A Second Post

I'm adding a few details to supplement the one I made a couple of days ago about the Davenport Lyons solicitors Gore and Miller appearing before the Solicitors Disciplinary Tribunal this week (and next week). There's also a directions hearing regarding Andrew Crossley of ACS:Law this Friday.

I know that some journalists and other interested parties are considering attending, particularly at the tail end of this week. The court rooms of the SDT themselves appear to be rather inconspicuous so I thought as part one of this short post I'd provide a link to a Googlemaps shot honed in on the building in question.

The address for the court rooms is given on the SDT site as:

3rd Floor, Gate House
1 Farringdon Street
London EC4M 7LG

In the view below, Gate House is apparently the entrance with the triangular architectural details on each side of the entrance, bang in the centre of the shot. Given the anonymity of the building (check for yourself; zoom in - there're a couple of number ones and nothing else I can see!) I've cross-checked the address with the neighbouring bike shop and tanning salon and it does check out as the correct venue.

Those that have attended these kind of things before might want to note that the location is essentially just a little further along the Strand / Fleet Street than the Royal Courts of Justice and the Patents County Court.

If you're walking up from the west end of the Strand / Fleet Street, walk past the Royal Courts of Justice and keep going; once you reach Fetter Lane (home of the Patents County Court) you're half way between the RCoJ and the SDT court at Gate House.

Essentially, keep walking up the Strand and you can't miss it. It's right on the junction of Farringdon Street and Fleet Street.

There's a short direct URL link to the map / photo just underneath the embedded one; in case you want to pass it on / tweet it etc.

View Larger Map

Part two of this rather dry (sorry) post is about tweeting / twitter as a matter of fact.

It's not certain that court room tweeting will be possible, but journalists in attendance at such events have been known to tweet even if only sometimes during breaks in proceedings.

ACS:Law had an easy enough hash tag to track - #acslaw, but it's tricker for Davenport Lyons, 'dl' is too short, 'sdt' is already in regular use and 'davenportlyonssolicitorsdisciplinarytribunal' doesn't leave you many characters for the tweet itself!

I therefore propose: #dlsdt for the sake of uniformity and brevity. Sound reasonable?