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The Times

Thursday, October 27 2016

Frances Gibb and Jonathan Ames bring this morning’s must-read of all things legal, including news, comment and gossip.

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We need a national consensus on Brexit, argues Sir Keir Starmer, QC
Bar leaders are wrong – backing court modernisation will not erode judicial independence, says Lord Justice Fulford

Today

  • Ministers fight to defend battlefield detention
  • Making a Murderer lawyers dodge innocence debate
  • Debate over financial watchdog’s use of ‘private warnings’
  • Judge criticises costs of dispute over care of paralysed man
  • Medical report loopholes closed, claim insurance lawyers
  • UK child refugee detention policy a ‘stain on human rights’
  • Scottish lawyers’ fears over data breaches and cybersecurity
  • General counsel comment: Is the new Insurance Act a fair deal?
  • Blue Bag diary: No fat cat lawyers on Instagram

Tweet us @TimesLaw with your views.

 
 
 
Story of the Day

Ministers fight to defend battlefield detention

British forces would have as little power to arrest and detain insurgents as an Afghan shopkeeper if their detention policy is held to be unlawful, the UK’s highest court was told yesterday.

James Eadie, QC, for the Ministry of Defence, said that previous rulings by the High Court and Court of Appeal would mean that UK forces had no power to detain insurgents after 96 hours.

“You can’t end up with a situation in armed conflict where you have no alternative but to release a combatant back out onto the battlefield,” he told the Supreme Court. The QC was opening a challenge by MoD to a ruling that the UK had detained an insurgent without due legal process during the armed conflict in 2010.

Serdar Mohammed, an Afghan farmer who was held by British troops in 2010 and held without charge or access to a lawyer for 110 days, is seeking damages for unlawful detention and mistreatment in breach of his human rights. He was held on suspicion of being a senior Taliban commander involved in the large-scale production of improvised explosive devices.

He was handed over to the Afghan security services, who he alleges tortured him and forced him to thumbprint a document which, he was told, confirmed that he had confessed to being a member of the Taliban.

When Mohammed’s claim first came before the High Court in 2014, his arrest and detention was found to be lawful only up to 96 hours. But the court said that detention beyond that time did not meet the “minimum procedural safeguards required by international law”.

The Supreme Court justices are deciding whether the MoD failed to put in place essential procedural safeguards in respect of Mohammed’s detention and if so, whether any such failure rendered his detention unlawful.

The hearing yesterday, before a nine-justice panel headed by Lord Neuberger, president of the Supreme Court, is the third to take place before the justices over this and related cases.

 
 
 
 
News Round Up
Making a Murderer lawyers dodge innocence debate

The defence lawyers who became global celebrities after the Netflix hit Making a Murderer have declined to say if the car salvage dealer who they defended is innocent.

Dean Strang and Jerry Buting (picture left and right above), the Wisconsin attorneys who acted for Steven ​Avery in the widely-acclaimed series that depicted him as a victim of a gross miscarriage of justice, will only say that the case was unproven.

”I wasn’t there. Nobody knows other than God and Steven Avery,” Buting said. “It isn’t the right question to ask. We don’t have a verdict of innocence. We have guilty or not guilty. That is the way the English common law system has always been. The prosecution has the burden of proving the case. They didn’t do that here. It wasn’t even close.”

The ten-part series described the case of Avery, who ​spent 18 years in prison for a sexual assault that it was proved he did not commit before being released in 2003. On release, Avery filed a $36 million lawsuit against Manitowoc County, its sheriff, and its district attorney, for wrongful imprisonment.

However, the series then depicts a shocking turn of events as Avery is arrested for the murder of Teresa Halbach. Avery was sentenced a second time to life imprisonment without parole in 2007 for the murder of the local photographer, whose burnt remains were found at his yard a week after she visited to take pictures of a van for sale. He remains in jail.

The attorneys were speaking as they embarked​ on a UK tour. In an interview to be published shortly in Proof, the magazine of the UK ​charity the Justice Gap, the two attorneys respond to the criticisms that the documentary was selective and one-sided.

“The defendant and his family chose to co-operate with the filmmakers,” Strang said, “and the victim’s family chose not to, for understandable reasons. We get to see them; we get to hear them; we even get to sit in their kitchen and we hear the pain in Steven’s mother’s voice, and Teresa Halbach’s family doesn’t have that … But all we are really seeing is the accused and his family humanised, which we almost never do in the criminal justice system. It is jarring because it is so unusual.”

Ken Kratz, a prosecutor who has since resigned as district attorney after a sexting scandal, argued that the jury considered compelling evidence that was deliberately omitted from the series – for example, Avery’s sweat found on a latch under the bonnet of Halbach’s car.

Debate over financial watchdog’s use of ‘private warnings’

Regulators would be mistaken to drop the practice of informally notifying individuals that they may have broken financial rules, lawyers said yesterday in response to a strategy paper from the watchdog.

The Financial Conduct Authority said that it was considering a review of the use of “private warnings”. The non-statutory tool is used to put individuals on notice that a breach may have occurred but, for whatever reason, formal action will not be taken.

Authority officials expressed concern that using the private notices was inconsistent with its “desire to be more transparent”. However, white collar crime lawyers warned the watchdog against jumping to ditch the warnings. “Use of such warnings is currently fairly limited but to significantly curtail their use would be a mistake,” said Jill Lorimer, a partner at Kingsley Napley, a London law firm.

She said private warnings “have a place and value within the enforcement tool-kit. If there are transparency concerns, then perhaps there should be a concerted effort to promote understanding of the role and purpose of these warnings rather than seeking to limit their use”.

Other fraud lawyers were keen to see the back of the warnings. “Private warnings can be superficially attractive,” said Elly Proudlock, a lawyer in the London office of US law firm Wilmer Hale, “but because they are taken into account when assessing fitness and propriety they can have serious, long-lasting consequences. Whilst they may be appropriate in certain types of cases, they should not be used as a substitute for rigorous decision-making.”

Judge criticises costs of dispute over care of paralysed man

A senior judge has criticised the amount of public money spent in a dispute over whether a paralysed man has the right to insist on being cared for at home.

The man in his 30s, who was paralysed after falling from a roof, wants to leave a specialist unit, lawyers have told a court. That was his “very strong wish”, they said. To keep him in the unit might amount to depriving him of his liberty, the court was told.

Although officials at the local authority in Berkshire responsible for his welfare will pay the £156,000-a-year needed to fund care at the specialist unit, they cannot afford the £468,000-a-year needed to fund a home-care package. Slough borough council said that £468,000 was 1.5 per cent of the council’s annual adult care budget.

Mr Justice Holman, who was sitting in the Court of Protection, which decides issues relating to people who lack mental capacity, pointed out that the litigation was being funded by taxpayers – either through the council, the Official Solicitor’s office or legal aid.

He said that legal bills of at least £130,000 had already been incurred and he questioned whether spending tens of thousands of pounds more so that decisions could be made about the man’s mental capacity was proportionate.

The judge said: “I am, frankly, extremely concerned at the prospect of incurring further tens of thousands of pounds of public funds on some abstract determination of capacity if realistically there is no choice in the way forward for this particular patient in these circumstances.

“I get profoundly concerned about the proportionality of some of these proceedings in the Court of Protection,” said the judge, who also sits in the family division of the High Court.

Medical report loopholes closed, claim insurance lawyers

Tighter rules governing the system that lawyers use for sourcing specialist medical reports will close loopholes that allowed abuse, insurance defendant specialists claimed yesterday.

The Ministry of Justice published revised qualifying criteria for medical reporting organisations (MROs) that are registered with MedCo, the independent supervisory body that was launched last year.

A statement from MedCo said that the updated criteria would enable it to “ensure that MROs currently registered on the system, and MROs applying to register, are properly constituted businesses with satisfactory systems and sufficient resources in place to operate to the minimum required standards”. MROs will also have to declare financial links.

Nigel Teasdale, vice-president of the Forum of Insurance Lawyers, said the move signified that “MedCo is changing behaviours and it is important that the regime continues to develop. FOIL welcomed the MOJ’s commitment earlier this year to keep the framework under review and, in particular, hopes in due course to see formal regulation of MROs as part of the regime.”

Yesterday, The Brief reported that the Solicitors Regulation Authority was still concerned that the quality of medical reports used in personal injury cases had significantly deteriorated despite MedCo’s introduction.

UK child refugee detention policy a ‘stain on human rights’

British ministers’ policy of holding child refugees in detention centres is a “stain on the UK’s human rights record”, a leading barrister civil liberties campaigner said yesterday.

Martha Spurrier, the director of Liberty, castigated ministers for failing to adhere to a promise made six years ago to stop the practice. Detention has been highlighted again by the recent arrival of children from Calais in the wake of the French authorities closing the refugee camp known as the Jungle in the last few days.

“It is to our government’s shame,” Spurrier told the annual meeting of the National Children’s Bureau, “that a number of refugee children who have arrived in the UK from Calais in recent days appear to have been put in detention because basic checks were not carried out before their arrival. Locking people up – especially children – when they have done nothing wrong violates one of our most basic freedoms. Far from being a celebration of our values and our rich tradition of providing sanctuary to those fleeing persecution, it is a sad expression of our lesser nature.”

Liberty claims that 128 children were detained in British centres last year. Spurrier – who took over the London-based organisation in March from Shami Chakrabarti, who has since become Labour’s shadow attorney-general – claimed that the Immigration Act of 2016 has demeaned the rights of refugee children.

That legislation, Spurrier said, stipulates that unaccompanied children in care who are awaiting resolution of their immigration status, “are no longer entitled to support as care leavers, which we know significantly helps young people in other areas of the system”.

Those children, the lawyer said, “are then forced to navigate the very complicated immigration process without being directed to the legal help they so need”.

Scottish lawyers’ fears over data breaches and cybersecurity

Scottish solicitors are embracing new technology but they have serious concerns over security, reports Greig Cameron on new research.

More than 40 per cent of solicitors surveyed by the Law Society of Scotland are worried about the growing amounts of digital data and maintaining cybersecurity.

The pace of change in technology also worried Scottish lawyers, with 32 per cent saying that keeping abreast of latest developments was difficult. Many also said that they needed more training in areas such as data protection and cybersecurity.

The results of the research were presented at the Law Society’s technology and cybercrime conference in Glasgow yesterday. The survey – conducted for the society by Ipsos Mori – also found that more than 80 per cent of respondents had a very or fairly positive view of technology; 92 per cent of solicitors used the internet each day for business and 59 per cent accessed it through smartphones.

Almost a third said that the use of artificial intelligence systems was already reducing costs in the sector.

“The vast majority of respondents took steps to protect themselves online,” said Helena Brown, a partner HBJ Gateley and a member of the Law Society’s technology law and practice committee, “such as not clicking on suspect links and using passport protection on their devices.” However, she flagged up the worrying figure of 35 per cent of those who had experienced a cybersecurity issue failing to report it.

“It may be that some of this relates to scam emails from fraudsters, which most of us would simply delete,” Brown said. “But it perhaps indicates there is an issue in what and how cybersecurity issues should be dealt with.”

In Brief

In today’s Times Law

Elsewhere …

  • Pensioner’s trip ‘may cause flood of claims’ -- The Times
  • Sir Cliff's lawyers tell court police raid forced delay of album -- The Times
  • Dentons sued over advice on gold trading scheme -- Legal Week
  • City firm defeats £15m negligence claim -- Law Gazette
 
 
 
Byline
Comment

Is the new Insurance Act a fair deal? Sam Clark

The latest in our series of general counsel comments produced in partnership with Winmark.

After 12 years of cogitation by the Law Commission and MPs, the Insurance Act 2015 came into force in August and it has triggered fundamental change.

On the whole, the act is a positive development, but it does create more mountains of paperwork for everyone involved – not least in-house lawyers in the insurance sector.

The legislation is the biggest reform to commercial insurance since the Marine Insurance Act 1906. Surprisingly, the parliamentary draftsmen managed to distil the new law – described as redressing the balance between policyholders and insurers – into a mere 17 pages.

For policyholders, the act has benefits, but they come at a price. Gone are the old draconian remedies allowing insurers to avoid paying all claims and terminating policies for basically any reason whatsoever.

The price is that when it comes to the requirements of the policyholder in compiling relevant information for the insurers, the old vague “duty of disclosure” is replaced by a “duty to make a fair presentation of the risk”. This revised duty gives more guidance on what a policyholder needs to do and who they need to ask to find out the relevant information.

This means that policyholders now must conduct those activities in full (and to the letter) to be sure that an insurer does not have one of the remedies available for a breach of the duty. It also means that policyholders should now be documenting what they do so they can defend any arguments by insurers to the contrary.

For insurers the majority of the act puts them in a position where morally they should have been before. However, the main remedies available to insurers for breach of the enhanced duty depend on the insurers proving what they would have done had they known the missing information at the time that they underwrote the policy.

Insurers will now have to take the time and effort to document as much as possible at the time of underwriting in order to support a future claim.

Curiously, the insurance broker seems to have been more or less forgotten in the act – those draftsmen apparently could not extend themselves to 18 pages. There are only two direct references to the broker and both increase obligations.

Brokers not only continue under the duties set down in the previous 100 years of law, but get both direct and indirect obligations under the new law. It is a particularly rough end of the deal.

The reforms will in the short term extend the policy placement process, while leaving the lowly broker as the punch bag in the middle.

A word of warning: it was made clear when the act was put on the statute books that there was a reason for its diminutive form. It was seen as a framework that would be further developed by future case law. We are only three months in, the apparent calm before the storm and lawyers are circling to find a first test case victim.

Sam Clark is general counsel and a partner at Lockton Companies, an international insurance broker. He is also a member of the Chief Legal Officer’s network at Winmark, the C-Suite networks organisation. Contact the chief executive for more information at John.jeffcock@winmarkglobal.com

 
 
Blue Bag

No fat cat lawyers on Instagram

The latest attempt by the solicitors’ profession to humanise itself in the eyes of a wary public – which have a picture of a fat cat ingrained as the abiding image – comes in the very modern form of Instagram.

The Law Society, which represents 130,000 practising solicitors in England and Wales, has launched a presence on the photo and video sharing platform. It has created #solicitorstory as a hashtag promoting feelgood tales of lawyers doing ordinary things, such as sitting in a wheelbarrow on an allotment.

Others are depicted tinkling the ivories, running marathons, having a kick-about and learning to fly. That latter activity is bound to endear the profession with the ordinary punter atop the Clapham omnibus.

Tatchell dismayed by cake case

Peter Tatchell – the doyen of homosexual rights campaigners – has never been reluctant to trigger controversy, and on Tuesday he stirred the pot over the recent “gay cake” litigation.

One might imagine that Tatchell – who lost the infamous 1983 Bermondsey by-election to Sir Simon Hughes, the barrister and Liberal candidate, in allegedly one of the dirtiest campaigns in UK political history – would have celebrated the judgment in Belfast’s Court of Appeal. The judges ruled that two Christian bakers had discriminated against a homosexual man by refusing to produce a cake emblazoned with a gay marriage slogan.

However, Tatchell is not happy. In a comment article in The Times on Tuesday, he said: “Discrimination against LGBT people is wrong and is rightly unlawful. But in a democratic society, people should be able to discriminate against ideas they disagree with. Unlike the court, I err on the side of freedom of conscience, expression and religion.”

At last count, Tatchell’s piece had generated more than 205 comments on our website. He’ll surely be happy with that.

Snap-happy Timberlake avoids legal action

Readers can decide for themselves whether Justin Timberlake’s recent brush with the law bears the hallmarks of a marketing exercise. According to Sky News, the pop star has narrowly avoided a court appearance after taking a selfie as he voted early in the forthcoming US presidential election.

The former child star flew from California to his hometown of Memphis so that he could participate in Tennessee’s early voting programme. In the polling booth, the 35-year-old was so enthused by the fact that he was striking his blow for democracy, he couldn’t resist letting rip with his smartphone and broadcasting the experience on social media.

It is illegal in Tennessee to take photographs or shoot videos in a polling station but the local district attorney seems happy to let the matter lie with no more than public telling-off.

 
 
Closing Statement

Bloody guilty …

The concept of magistrates’ courts as people’s courts as opposed to police courts never really took off in the 1960s and 70s, recalls James Morton.

Summary justice was very often rough justice. Indeed, the court at Willesden in northwest London was renowned during that era for actively refusing to favour defendants. So much so that the chairman of the bench frequently announced their worships’ decision to the accused in the following stark terms: “We think there is a doubt in your case but you are not getting the benefit of it.”

On another occasion the chairman drove home the verdict with: “Not only do we find you guilty, we find you bloody guilty.”

James Morton is a former criminal law solicitor turned author