April 2017 – Whitestone Chambers

HOW IN-FLIGHT WI-FI WORKS

We’ve all had the same problem: you walk too far away from your Wi-Fi router and, all of a sudden, your Wi-Fi stops working. We all know that it’s simply because the router’s signal isn’t strong enough to reach you that extra few feet away. There is sadly a limit on the strength of Wi-Fi connectivity. But, if Wi-Fi is so dependent upon your proximity to a router, doesn’t it seem strange that Wi-Fi can work in an aeroplane, 35,000 feet above the ground?

So, how does this technology work? Is the answer routers in the sky? Or an invisible cable dropped down to the ground to keep you connected, as you travel at 900 km/h through the air? Close.

More and more commercial airlines are offering their passengers on-board Wi-Fi, whether free of charge or for an extra add-on fee, and they’re all using one of two ways to do it.

So, how does this technology work? Is the answer routers in the sky? Or an invisible cable dropped down to the ground to keep you connected, as you travel at 900 km/h through the air? Close.

More and more commercial airlines are offering their passengers on-board Wi-Fi, whether free of charge or for an extra add-on fee, and they’re all using one of two ways to do it.

Either, the plane will connect to satellites in geostationary orbit (over 35,000 km above the ground), which send and receive signals to Earth through receivers and transmitters, just as they do to produce television signals and weather forecasts. To do this, the plane must have an antenna on its roof, just like a car, which transmits information to and from your smartphone, and the information is simply passed between the ground and the plane via the satellite. The plane will then have an on-board router that will be used to convert this into Wi-Fi signal for the passengers.

Alternatively, the plane may use ground-based mobile broadband towers to send signals up to the aircraft’s antennas (this time on the base of the plane). The way this works is that, as the plane travels through the air, it will automatically connect to the signals of the nearest tower below its path. The only problem with this is when a plane passes over a large body of water or remote terrain, where there aren’t any broadband towers below, which results in a break in connectivity – just like wandering with your laptop into your garden.

But all of this clever technology doesn’t come cheap (or quickly). The US has the best developed infrastructure of towers and satellite connectivity, so your Wi-Fi on a commercial flight operated by a US company is likely to be cheaper and quicker than on a trip through Europe. The price comes primarily from the antennas which have to be fitted onto the aeroplanes to make the Wi-Fi work. These increase the aeroplane’s drag, which increases fuel costs, without forgetting the added engineering and maintenance costs involved. All of these costs are passed onto the consumer, with Wi-Fi usually being an ‘added’ (costly) extra on today’s flights. What’s more, you might have noticed that, even once you do get yourself connected to the Wi-Fi, it’s often painfully slow. That’s because a satellite connection can only currently offer a speed of up to around 12 Mbps (as opposed to the average U.K household Wi-Fi speed of 28.9 Mbps) and this can be even slower still if everyone on the plane is trying to connect.

But, that being said, technology is moving quickly. The speed and the price of aeroplane Wi-Fi is set to improve as more and more competitors enter the market and innovation truly takes off in this relatively new area of technology. Plus, even 12 Mbps cannot really be complained about at 35,000 feet, now, can it?

A STEALTH DEATH TAX? THE LORD CHANCELLOR INCREASES PROBATE FEES

The government ignored opposition and is going ahead with the proposed probate fee increase. For estates worth over £2 million the fee could now be £20,000

WHAT IS PROBATE?

Probate describes the legal and financial processes involved in dealing with the property, money and other assets of the deceased. This normally involves the appointment of an executor who will deal with the deceased’s estate.

The government ignored opposition and is going ahead with the proposed probate fee increase. For estates worth over £2 million the fee could now be £20,000.

WHAT IS PROBATE?

The government is to increase probate fees and thereby seeks to generate roughly £300m. The Joint Committee on Statutory Instruments raised concerns about the hike, in particular whether the proposed fees were proportionate. It questioned whether charging a fee for the administration of probate in excess of the cost of this service can really be termed a ‘fee’. (See the report here.)

More importantly, the fee increase can be seen as a further death tax by stealth, the introduction for which the Lord Chancellor has no powers. This is recognised in the report which sets out that “it is an important constitutional principle that there is no taxation without the consent of parliament, which must be embodied in statute and expressed in clear terms”

£300 for estates worth more than £50,000 and up to £300,000
£1,000 for estates worth more than £300,000 and up to £500,000
£4,000 for estates worth more than £500,000 and up to £1 million
£8,000 for estates worth more than £1m and up to £1.6 million
£12,000 for estates worth more than £1.6m and up to £2 million
£20,000 for estates worth more than £2 million

The current fees stand at £215 for individual applications, and £155 for those applying for probate through a solicitor. The rise will therefore amount to an increase between 40 per cent and 9,202 per cent. There is widespread disagreement with the fee increases. This is reflected in the results of the consultation, which received 853 responses of which 810 disagreed with the proposed fees. (See the Government’s response to the consultation here.)

The Ministry of Justice’s response was that ‘over half of estates [will] pay nothing and over 90 per cent pay less than £1,000’. The increase will take effect next month, though the precise date is yet to be announced.

LORD CHANCELLOR LIABLE TO COMPENSATE FOR JUDGE’S “GROSS AND OBVIOUS IRREGULARITY”

The Court of Appeal held in a unanimous decision on 10 April 2017 in the case of LL v The Lord Chancellor [2017] EWCA Civ 237 (available here) that a claim can be brought against the Lord Chancellor following a High Court judge’s ‘gross and obvious irregularity’.

Jackson LJ, with whom King and Longmore LJJ agreed, stressed that this decision did not traverse the long-established principle of judicial immunity from suit and should not be considered ‘the thin end of the wedge’ for claims against judges as this case was ‘unusual’ and ‘exceptional’.

The appeal focussed on a series of orders given by Ms. Justice Russell in April 2014, in respect of the custody of the claimant’s son, referred to as M. These orders were all breached by LL leading to Russell J finding LL to be in contempt of court and sentencing him to 18-months imprisonment. When this conviction was appealed, a differently constituted division of the Court of Appeal upheld the appeal and ordered the immediate release of LL.

In April 2015, LL commenced a claim in the High Court against the Lord Chancellor seeking damages pursuant to sections 6, 7(1) and 9(3) of the HRA following his unlawful imprisonment. Foskett J dismissed this appeal on the basis that Russell J’s conduct did not amount to a ‘gross and obvious irregularity’.

When LL appealed this decision to the Court of Appeal in the instant case, the parties agreed Russell J had made a series of failings, the dispute was whether they passed what was described as the ‘very high threshold’ of being a gross and obvious irregularity.

In the Court of Appeal’s decision, Ms Justice Russell made a series of 6 errors, the cumulative effect of which amount to a gross and obvious irregularity:

She included in a recital to an order the court’s ‘expectation’ that LL secure the return of M from Singapore by instigating proceedings there if necessary.
She failed to recuse herself on grounds of apparent pre-determination or bias.
She required the defendant in what had become criminal proceedings to give evidence, rather than warning him the proceedings had moved from the family to the criminal jurisdiction and he did not need to give evidence.
When having made such a requirement to give evidence, she failed to permit the defendant to put his case first, instead he was subjected to an immediate cross-examination.
She conflated LL’s non-compliance with court orders (some of which were impossible to meet and were only proved to the balance of probabilities) with a deliberate breach of the court orders.
The defendant was not afforded the opportunity to make any submissions in mitigation following being found guilty and the judge passing sentence.

Russell J’s finding of guilt following LL’s breach of an order which could not be complied with amounted to a gross irregularity which would be obvious to anyone familiar with the court process.

This case is based on its own unique facts and any subsequent cases would be equally subjective. Indeed, Jackson LJ held that in reaching the decision the court was not assisted by comparing the significance of the breach with previously decided cases. It is unlikely that this case will be the catalyst of a breed of new claims against the judiciary.

AEROTOXIC SYNDROME NOT A PROPER ISSUE TO BE EXAMINED IN THE INQUEST INTO THE DEATH OF BRITISH AIRWAYS CO-PILOT

The inquest into the death of British Airways co-pilot Richard Westgate commenced on 6 April 2017 at the Salisbury Coroner’s Court.

WHAT IS AEROTOXIC SYNDROME

The inquest into the death of British Airways co-pilot Richard Westgate commenced on 6 April 2017 at the Salisbury Coroner’s Court.

WHAT IS AEROTOXIC SYNDROME

“Aereotoxic syndrome” is the term given to the illness caused by exposure to contaminated air in jet aircraft. The condition has not been recognised by medicine and claims of health effects were found to be unsubstantiated by the House of Lords Science and Technology Committee (The report can be found here.). Cabin air contamination is said to occur in the following way. For a comfortable environment and the appropriate cabin pressure to breathe at high altitude, warm compressed air is required. This is supplied direct from the jet engines, known as ‘bleed air’. This air is mixed with the air in the cabin. Jet engines have wet seals which keep oil and air apart. This is important as jet engines require synthetic oils for lubrication, which contain ingredients such as tricresyl phosphate, an organo-phosphate. The wet seals are not 100% effective and through wear their effectiveness can decline. In such an event the oil and air would mix with the air in the engine and as a result contaminated air would get into the cabin.

Mr Westgate died in 2012 in unexplained circumstances after seeking treatment for what he thought was “aerotoxic syndrome”. The post mortem examinations gave the causes of death as either pentobarbital toxicity or lymphocytic myocarditis. Prior to his death, Mr Westgate was said to have suffered from excruciating pain for which he sought specialist care in the Netherlands.

At the start of the inquest, coroner Dr Simon Fox QC stated that : “Exposure to organophosphate in the course of his employment as a commercial pilot is not a proper issue to be examined by this inquest”. He went on and explained that the inquest would consider whether Mr Westgate had died from an overdose, intended or not, of pentobarbital, an insomnia drug. It will further explore whether Mr Westgate had been suffering from an inflammation of the heart muscle, myocarditis.

This early decision seems to be at odds with previous coroner, Sheriff Stanhope Payne’s report, dated 16 February 2015, issued under Regulation 28 of The Coroners (Investigations) Regulations 2013. (The report can be found here.). The report set out that testing of samples taken both prior and after the death,

disclosed symptoms consistent with exposure to organophosphate compounds in aircraft cabin air, which can cause lymphocytic myocarditis. The report also highlighted the coroner’s concerns about potential exposure to organophosphate by occupants of aircraft cabins, that the resulting impairment to the health of pilots may lead to death and that there was no real-time monitoring to detect such compounds in cabin air.

The inquest attracted the attention of the airline industry with the Civil Aviation Authority being involved, and representatives of a number of other airlines watching from the public gallery. The inquest continues.

CASE SUMMARY: THE SUPREME COURT CLARIFIES THE MEANING OF “REGULARLY”

Judgement was handed down in Isle of Wight Council v Platt [2017] UKSC 28 (available here). The Supreme Court provided guidance on what ‘failed to attend regularly’ meant in the context of the offence contrary to section 444(1) of the Education Act 1996.

THE FACTS

On 30 January 2015, Mr Platt, the father of a child, (‘Mary’), sent a letter to the school attended by the child requesting Mary to be absent during term time. This was for the period between 12 April and 21 April 2015. On 9 February 2015, the head teacher refused the request. Coincidentally, Mary’s mother, who had been separated from Mr Platt, had also taken Mary on holiday in February 2015, which had not been authorised by the school either.

Judgement was handed down in Isle of Wight Council v Platt [2017] UKSC 28(available here). The Supreme Court provided guidance on what ‘failed to attend regularly’ meant in the context of the offence contrary to section 444(1) of the Education Act 1996.

THE FACTS

On 30 January 2015, Mr. Platt, the father of a child, (‘Mary’), sent a letter to the school attended by the child requesting Mary to be absent during term time. This was for the period between 12 April and 21 April 2015. On 9 February 2015, the head teacher refused the request. Coincidentally, Mary’s mother, who had been separated from Mr Platt, had also taken Mary on holiday in February 2015, which had not been authorised by the school either.

Mr Platt went ahead and took Mary to Disney World in Florida regardless. Accordingly, the council issued Mr. Platt with a fixed penalty notice under the Education Act 1996. As this fine had not been paid within the requisite 21-day deadline, the fine increased to £120. This went unpaid too. Mr Platt was charged with an offence contrary to section 444(1) of the Education Act 1996. On 12 October 2015, a trial took place where the Magistrates determined that Mr Platt had no case to answer. They reasoned that ‘we have to ask ourselves whether M was a regular attendee. Before holiday with Dad, her attendance was 95%. Afterwards, it was 90.3% …. The document supplied on refusal of leave stated that satisfactory attendance is 90-95%’.

The council appealed by way of case stated. The High Court held that the magistrates had not erred in taking into account the child’s attendance outside the absent dates in determining the percentage attendance of the child. (see our post on the High Court decision here.)

THE SUPREME COURT DECISION

Lady Hale explained that the High Court certified a different point of law, namely under section 1 of the Administration of Justice 1960 what information is relevant to the specific period complained off when assessing whether an offence had been committed under section 444(1) of the 1996 Act.

In considering what ‘regular’ meant, Lady Hale considered that the three possible meanings interpretations. These were:

At regular intervals.
Sufficiently frequently.
In accordance with the rules.

In accordance with the rules. In regard to ‘regular’ meaning attendance ‘at regular intervals’ was discarded as a possible interpretation, as this would have enabled a child’s attendance to be regular even if he was regularly late.

In regard to ‘sufficiently frequently’, the court considered that this interpretation accorded with what was meant when one talked of being a ‘regular’ at the pub or a ‘regular’ church. Attendance regularly could not be construed in this way. This was because the purpose of the Education Act 1996 was to increase the scope and character of compulsory state education. Lady Hale further reasoned that the 1994 Act sought to tighten not to relax parental liability. Most significantly, this interpretation would not have been sufficiently certain to found a criminal offence.

The court determined that ‘in accordance with the rules’ was the correct interpretation. This was because, while a minor or trivial breach of the rules could lead to criminal liability, this could be countenanced by a sensible prosecution policy. Further, as statutes imposing criminal liability should be drafted so that everyone knew where they stood this was the only interpretation that would achieve this.

The court, therefore, concluded that regularly in the context of offence meant ‘in accordance with the rules prescribed by the school’.

The decision will shift the attention on the attendance rules and policies of schools. This may result in an increase in judicial review claims.

Fact is that the now Mr. Platt will be reissued with a summons to appear at the Magistrates Court and the entire process begins. As regards Mary’s mother, she had decided to pay the fixed penalty fine at the time it was issued.