Malta Extradition

[scagrotto]

there is the potential for liability (as observed here)

Liability is easy to deal with. You just buy insurance, pay your premiums, and dump most of the problems on the insurance company if you get sued. The problem here is that a diver has been criminally charged with (as near as I can figure) not being good enough to solve problems he's not responsible for. Fortunately for everyone but that diver, this appears to be very unusual and geographically limited.

Most insurance policies in the U.S. (diving or otherwise) wouldn't provide defense coverage in a criminal case.

What a can or worms that would be. I can only assume that whatever changes were made to the BSAC policy have to be limited to incidents where most people don't think the actions were criminal. The problem there is that the insurance company probably has a lot of leeway to just refuse coverage and save many thousands of dollars. I can't imagine the premiums for a policy that would provide a legal defense for any crime a dive professional was accused of committing in the course of their job. The dive professional that was recently accused of sexually assaulting a client is one example. What company wants to get stuck providing his defense, and what club wants to pass on the cost of premiums for that to all their members who don't sexually assault their customers? One solution would be reimbursement after an acquittal, but that still leaves the OP on the hook for the legal bills if he gets convicted.

ask moderators to hide this thread from public view

Perhaps not a bad idea, but moderators can't hide it from a subpoena, or from any archived or cached material that might appear elsewhere (and therefore might be found by anyone who hasn't already seen it here). That he has already said things means potential problems if he later says anything contradictory. At the least, contradictions potentially damage credibility, and might potentially be used to suggest perjury. I don't think he's said anything that could be damaging, but I'm not an attorney or a crazy over-zealous prosecutor in some country with strange views of criminal culpability. At any rate, I'd figure the cat is already out of the bag.

 

[boulderjohn]

What a can or worms that would be. I can only assume that whatever changes were made to the BSAC policy have to be limited to incidents where most people don't think the actions were criminal. The problem there is that the insurance company probably has a lot of leeway to just refuse coverage and save many thousands of dollars. I can't imagine the premiums for a policy that would provide a legal defense for any crime a dive professional was accused of committing in the course of their job. The dive professional that was recently accused of sexually assaulting a client is one example. What company wants to get stuck providing his defense, and what club wants to pass on the cost of premiums for that to all their members who don't sexually assault their customers? One solution would be reimbursement after an acquittal, but that still leaves the OP on the hook for the legal bills if he gets convicted.

The problem is that a policy of not paying for the defense of criminal charges assumes that a prosecutor will make a legitimate and logical decision in regard to filing charges. I saw this in a non-scuba case in Colorado. A teacher broke up a fight. The school district investigated the incident and decided that the teacher's actions in dong so were entirely appropriate. For obvious political reasons, the DA pressed CRIMINAL child abuse charges against the teacher. Even if the teacher had over-reacted in breaking up the fight (which she hadn't), the appropriate charges would have been CIVIL child abuse. What's the difference? When a school district determines that a teacher's actions in an incident were appropriate, they are required to pay for the defense in civil trials, but they are forbidden to pay for the defense in criminal cases, even if they feel the actions were appropriate. The judge threw the case out of court with harsh words for the DA, but not before the teacher had to cough up $25,000 for a criminal defense attorney to show up in court to take care of the mess.

I don't know how an insurance policy can be written to exclude coverage for legitimate criminal cases (like sexual assault) and allow coverage for non-legitimate criminal cases.

 

[Lopez116]

The problem is that a policy of not paying for the defense of criminal charges assumes that a prosecutor will make a legitimate and logical decision...

I don't know how an insurance policy can be written to exclude coverage for legitimate criminal cases (like sexual assault) and allow coverage for non-legitimate criminal cases.

I'm not sure I understand what you're saying. Insurance companies generally have a duty defend and indemnify on the civil side (subject to certain exclusions - including intentional acts), but not the criminal side, regardless of whether the allegations are true or not.

Take for example a DUI that causes an accident. The driver is negligent in driving while under the influence and causing an accident. The carrier will defend the civil complaint and indemnify the insured, but will not hire a lawyer to rep the insured in the criminal case.

If the plaintiff in the civil case can prove malice, punitive damages will be awarded. But, the insurer is not obligated to pay the punitive damages award - just the compensatory damages.

 

[rivers]

I would be interested to see a copy of the BSAC policy. Most insurance policies in the U.S. (diving or otherwise) wouldn't provide defense coverage in a criminal case. Heck, many won't even provide indemnification on a restitution order.

BSAC's insurer's conduct doesn't really sound like anything out of the ordinary when I comes to insurance companies.

Part of the problem is that up until 2007, £100,000 of criminal defence cover was included in the BSAC third party insurance. However, this change was never relayed to the membership. In addition, the website wasn't updated to reflect this change, and in fact stated that £100,000 of criminal defence cover was still included until at least July 2013 (which can be proven by googling cached BSAC pages). The criminal defence cover is now once again included in the policy after an uproar from the membership. While the response and handling by BSAC could have been better (for example, just letting the general membership know that they were searching for the best possible solution in assisting Stephen as opposed to remaining silent), BSAC have stepped up to assist Stephen with his defence fund.

 

[boulderjohn]

I'm not sure I understand what you're saying. Insurance companies generally have a duty defend and indemnify on the civil side (subject to certain exclusions - including intentional acts), but not the criminal side, regardless of whether the allegations are true or not.

Take for example a DUI that causes an accident. The driver is negligent in driving while under the influence and causing an accident. The carrier will defend the civil complaint and indemnify the insured, but will not hire a lawyer to rep the insured in the criminal case.

If the plaintiff in the civil case can prove malice, punitive damages will be awarded. But, the insurer is not obligated to pay the punitive damages award - just the compensatory damages.

I understand that. My concern is when the prosecutor decides to make a criminal case out of something that should not be a criminal case. When that happens, as in the example I gave and in the example that is the topic of this thread, the insurance policy that SHOULD cover the incident will not cover the incident.

 

[Lopez116]

I understand that. My concern is when the prosecutor decides to make a criminal case out of something that should not be a criminal case. When that happens, as in the example I gave and in the example that is the topic of this thread, the insurance policy that SHOULD cover the incident will not cover the incident.

In your teacher example, if that happened in CA (and the defendant was acquitted), the employer would be required to indemnify the employee of the employee was acting within the course and scope of his employment when the incident occurred. This is only after the teacher successfully defends himself/herself.

 

[Diver0001]

I understand that. My concern is when the prosecutor decides to make a criminal case out of something that should not be a criminal case. When that happens, as in the example I gave and in the example that is the topic of this thread, the insurance policy that SHOULD cover the incident will not cover the incident.

John where I live it's completely normal process to have a criminal trial (or hearing) before any civil case. In this part of the world they seem to always follow in sequence.

I don't know what norms are world wide but this case doesn't surprise me in this way. In many (most?) European countries the criminal case is a necessity in order to "clear the way" for a civil case. There must first be established if there has been a crime committed (or not) before lawyers are allowed to go after the money.

On the surface, that's all that's happening here. The undercurrent of examining "criminal negligence" as related to the diver's qualifications is an eddy (and an important one) in this process, depending on the outcome.

What's probably at the root here is that someone wants money..... but that issue can't be settled in most European countries before first settling the question of whether or not it was a felony.

Chances are very high that there will be no felony ruling here but what will happen to Stephen after that is that he'll probably be sued to his undies for failing to act when other divers did (and by deduction, he should have).

And again, we shouldn't be discussing this on social media at all. All we're doing right now is handing the prosecution it's case.

R..

 

[markmud]

Stephen, just a word of caution. It's an extraordinarily bad idea to discuss this on social media before the trial. As anything you say here is a matter of public record you could very well be putting the noose around your own neck without even realizing it.

For your own good, I recommend you ask moderators to hide this thread from public view, although you may have already damaged your case more than you can imagine.

That said, I did hear about this accident when it happened. It would appear to me that the BSAC is covering it's legal patoosh here by keeping its head down and is going to watch this case carefully as are other agencies. What really appears to be under scrutiny here isn't so much the question of what when wrong during this particular dive but whether or not a buddy with an instructor qualification has a higher duty of care than a lower trained buddy, even if the dive is not a training dive.

Putting this in other terms if Stephen is found guilty it could mean to everyone out there that highest qualified diver in a group could be seen as criminally negligent if a rescue of their buddy is required and they fail to act before someone else does. All kinds of nasty complications could result from this.

R..

Hi Diver0001,

I don't know much about this case other than what I have read the last two days. But then, many don't know much about this case which is why there is going to be, what is called in the U.S. anyways, an arraignment hearing.

Your advice regarding Stephen remaining silent is a good strategy for a true criminal case; however, my gut tells me that this is politics being played-out before a judge. Beating a political accusation is a much different war than beating a criminal accusation.

markm

 

[boulderjohn]

John where I live it's completely normal process to have a criminal trial (or hearing) before any civil case. In this part of the world they seem to always follow in sequence.

Sure-if there are to be both criminal and civil charges. What I am talking about is prosecutors making criminal charges for incidents that are not normally considered to be criminal.

For example, a couple of years ago in Ferguson, Missouri, the home of a recent bigger incident, a man was brought into jail at night in a case of mistaken identify. Realizing the mistake but not wanting to go to the trouble of taking him home at night, they ordered him to spend the night, sharing a one person cell with another person. He protested, and four police officers went into the cell to convince him to stop protesting. After that, the pressed criminal charges for destruction of government property. What had he done? He had bled on their uniforms during the "conversation."

Under normal circumstances, bleeding on the uniforms of the police officers who are beating you is not considered a criminal offense, but in this case it was.

 

[Diver0001]

John,

I'll try to explain this again. It may not be the case in every country in the EU but in many there is *always* a criminal hearing before any civil case can proceed.

What I'm saying is that if someone wants to sue for damages or liability that the courts here -- almost ALWAYS -- hold a criminal hearing first. I assume that the idea is that if someone is claiming liability that it's important to FIRST determine if an actual crime has been committed.

Only after the courts decide that an actual crime has not been committed is it possible to pursue a civil case.

I think in the United States it may be possible to "sue" someone in civil court without it triggering a criminal investigation and/or proceeding but in Europe, as far as I know, this isn't possible. That may be one of the reasons why Americans sue each other over spilled milk and Europeans do not.... and cannot.

That said, I'm not a lawyer so if I'm wrong about this then I hope to be corrected.

R..