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The Times

Friday, March 3 2017

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


  • Lawyers ‘stalling deportation' of sex grooming gang
  • Divorcing couples struggle to afford legal advice
  • Accountants better at retaining staff than law firms
  • Court returns child to parents with learning difficulties
  • Brexit countdown: Zero experience, time poor – trade battle begins
  • Comment: Decriminalise some images – or give cops more money
  • The Churn: Former Bar leader takes reins at Atkin Chambers
  • Blue Bag diary: Another reason to keep lawyers off Twitter …

Plus, see our plans for Brief Premium and archive of articles so far. Tweet us @TimesLaw with your views.

Story of the Day

Lawyers ‘stalling deportation' of sex grooming gang

Lawyers are being investigated by the solicitors’ watchdog after a complaint that they are delaying the deportation of the UK’s most notorious sex grooming gang.

Four members of the gang are facing deportation to Pakistan to serve prison sentences, but the MP for Rochdale, Simon Danczuk, says that the process has been delayed by solicitors making repeated and unsubstantiated requests for adjournment.

The Labour MP accused the law firm Burton & Burton of weakening the rule of law through stalling tactics, all the while claiming legal aid fees funded by the taxpayer, and denying justice to victims of paedophiles.

In a letter to the Solicitors Regulation Authority, Danczuk said: “This does not appear to be a one-off but a systemic problem which clearly needs to be dealt with. It has delayed justice for the victims of these paedophiles who I know are frustrated at the handling of this case and has made a mockery of our justice system.”

In reply, Paul Philip, the authority’s chief executive, said that such delays were of “real concern” and confirmed: “We are at the beginning stages of our investigation and would be happy to let you know the outcome or keep you informed of progress.”

The watchdog is expected to question senior staff at Burton & Burton, the Nottingham-based law firm used by Shabir Ahmed, 63 (pictured), leader of the paedophile gang who abused scores of young girls in Rochdale.

It is more than a year since Theresa May, then the home secretary, launched her attempt to have Ahmed and three accomplices deported to Pakistan to serve the rest of their sentences. The process has been repeatedly frustrated by the failure of legal teams to submit the necessary papers and their repeated requests for adjournments.

At one stage Ahmed – who was jailed for 19 years at Liverpool crown court in May 2012 and later given a 22-year sentence for raping another child 30 times over a decade – took his case to the European Court of Human Rights. He claimed that his grooming and rape convictions were part of a conspiracy to “scapegoat” Muslims, and said it would be unfair to send him back to the country he left as a 14-year-old.

The three other men fighting extradition – Abdul Aziz, Adil Khan and Abdul Rauf – are also represented by Burton & Burton. No one was available from the firm yesterday to comment.

News Round Up
Divorcing couples struggle to afford legal advice

Divorcing couples are struggling to assess whether their lawyers are sufficiently experienced and are providing value for money, the solicitors’ watchdog said yesterday.

In a critical report on family law, the Solicitors Regulation Authority warned that clients facing emotive and life-changing circumstances around divorce and child custody found it difficult to determine the value of legal advice.

“The research showed that it is difficult for those who need family law services to access information on costs and a solicitor’s experience,” said the authority. “This makes it difficult for them to compare different legal service providers and make informed choices.”

The SRA also reported that government cuts over the past few years to legal aid eligibility for family law matters were having significant effect. Many clients had to take out short-term bank loans or run up vast credit card debts to finance family law advice.

Specialist lawyers agreed that the Legal Aid, Sentencing and Punishment of Offenders Act (2012), which brought in the cuts to funding, had created “a more challenging environment in which to deliver services”. More than 90 per cent of firms said that since the introduction of that legislation there had been an increase in the number of family law cases where one side was forced to act without legal representation. Nearly half of the firms surveyed by the authority said that since the act was implemented there had been a decrease in demand for private family law services.

“People who need to use family law services are often in particularly vulnerable situations,” said Paul Philip, the authority’s chief executive. “It is important that people can find services that meet their needs and that those services are affordable.”

Accountants better at retaining staff than law firms

Large commercial law firms are far worse at retaining qualified staff than their “big four” accountancy rivals, with researchers claiming that legal practice partnerships lack collegiate spirit.

A survey of ten of the leading law firms in the City of London found that in 2015 they suffered from an average employee churn rate of 18 per cent. While that rate dipped last year to 14 per cent it was still two points higher than the rate at large accountancy practices.

The researchers assessed associate solicitor retention rates at ten big names in the Square Mile: DLA Piper, Clifford Chance, Freshfields Bruckhaus Deringer, Allen & Overy, Linklaters, Hogan Lovells, Norton Rose Fulbright, Herbert Smith Freehills, CMS, Ashurst and Eversheds Sunderland.

Dan Rogers, co-founder of Peakon, the consultancy that commissioned the survey, speculated that because much of the big four’s business is advisory work, “managers and partners will inherently know some of these management skills.

“Law firms have often been criticised for not employing a collaborative approach to their business, and this often replicated in other partnership models.”

Rogers also claimed that accountancy practices were better at promoting staff than were their law firm counterparts.

“Many of the big four introduced scorecards and tracking metrics early on, so the amount of time that managers and partners spent on people-related matters was tracked, and those who spent more time on these matters were not put at a disadvantage in terms of their career and pay progression. Law firms were probably slower to focus on these softer skills.”

Supreme Court returns child to parents with learning difficulties

A local authority in Scotland should not have parental rights over a child whose parents have learning difficulties, the UK’s highest court has ruled.

The child’s parents appealed to the Supreme Court after Scotland’s highest court upheld a decision to grant West Lothian council a permanence order for the child.

The girl, referred to as EV, has been in care since her birth in 2013. West Lothian council applied for the permanence order amid concern about her father, who in 2010 was charged with criminal sexual conduct with another learning disabled person of a similar age, although the charges were dropped.

In March 2016, the lord ordinary at the Court of Session granted the council a permanence order, which extinguished the parental rights and responsibilities on the parents and vested them in the local authority. The order also specified there should be no contact between EV and the parents and included an order granting authority to adopt.

The parents appealed against the decision. The Inner House of the Court of Session upheld the permanence order but removed the prohibition on contact.

The mother and father then appealed to the Supreme Court, which on Wednesday refused the petition for a permanence order. The judges – Lady Hale, the deputy president, and Lords Kerr, Wilson, Reed and Hodge – ruled that the lord ordinary’s decision was “deficient in a number of respects” and that he did not determine the threshold issue which must be considered before making a permanence order.

The judges concluded that “the most sensible way forward is for this court to allow the appeals and refuse the petition, leaving it to the local authority to commence fresh proceedings as and when that may be appropriate”.

Janys Scott, QC, of Westwater Advocates in Edinburgh, acted for the father. She was instructed by the law firm KW Law. Kenneth Campbell, QC, of Arnot Manderson Advocates, also in the Scottish capital, acted for the mother and was instructed by the law firm Aitkens. And Catherine Dowdalls, QC, also of Arnot Manderson, acted for the council, instructed by in-house lawyers.

Brexit countdown – legal update as leave approaches

Zero experience, time poor, expectations high – the trade battle begins

As Britain’s big-hitting, heavyweight trade negotiators start limbering up in the sweat rooms of Whitehall for the battle ahead, writes Edward Fennell, Pinsent Masons, a City of London law firm, has published the thoughts of a lawyer who handily was a former external consultant to the UN Conference on Trade and Development.

Luis González García, a lawyer at Matrix Chambers in Gray’s Inn, is the man doling out the wisdom in a briefing note on the Pinsent website. “The biggest difference between this trade negotiation and every other one,” he muses, “is that it is effectively going backwards, away from a position of deep economic integration and towards a position that will inevitably restrict trade flows.”

The trade element of the Brexit negotiations will also be unique as both sides apply the same laws and regulations and both sides trade without border restrictions. Surely that would make the negotiation relatively easy. Think again, cautions García.

“The politics surrounding Brexit, the fact that the UK will have to define its own fisheries, agricultural, industrial and trade policies at the same time it negotiates its future trade relationship with the EU and the fact that the trade deal will likely touch on every aspect of the UK economy, makes the EU-UK trade deal a very complex trade negotiation.”

Forget consensus

García reckons that by definition any negotiation involving the EU is not going to be a stroll in the bois. “Consensus is hard to reach, the decision-making process is complex and confusing and member states will have different views on a whole range of issues. Add to that the fact that EU countries are unhappy about the UK referendum result and will not want to make concessions and you have a difficult process.”

And while Blighty is not short of the odd bright spark in Whitehall, García and other lawyers point to dearth of trade experience. And that works in both directions, points out García – negotiating internally with UK industry as well as externally with the EU.

García predicts: “The UK is likely to be more cautious than a more experienced country in trade negotiations because it will have to go back and consult with industry more often because it is not sure how far it can push industry and where their red lines will be. So it is really two negotiations at once.”

This will make the process slower than one between two sophisticated negotiating nations, and it will take place against a backdrop of more severe time pressures than any other negotiation.

Spinning heads

The EU team will have to determine internally who is responsible for negotiating on sensitive issues such as the budget, trade and citizens’ rights. Observers estimate that even with a fair wind that process could take two to six months.

Then the trade agreement itself must be negotiated within 14 further months to allow enough time for the ratification process, which will involve the European parliament, the Council of Ministers, the Commission and very likely the national, and even sometimes the regional, parliaments of all member states. Head spinning? It will be by that time that lot has been over the deal.

“This would normally all be based on extensive preparatory work but that is not the case here,” says García. “The EU will not discuss anything until Article 50 is triggered. Of course that puts more pressure on the UK and gives the EU the upper hand in negotiations.”

In Brief

MPs warn government that PI reforms “risk injustice for genuine claimants” – Legal Futures

Lawyer criticises child abuse inquiry for not safeguarding evidence – The Guardian

Ex-Bush ethics lawyer: Sessions can't continue as attorney-general – CNN


Decriminalise some indecent images – or give cops more money Jenny Wiltshire

Chief Constable Simon Bailey, who heads Operation Hydrant, the investigation into historical child sex abuse, stirred the pot this week by arguing that low-risk sexual offences involving indecent images should be decriminalised. The police, he claims, are overwhelmed.

It is self-evident that the police should focus their limited resources on the most dangerous offenders, and there are good arguments for diverting minor offences out of the criminal justice system. But it is highly controversial to propose cuts to this area.

Bailey’s plan to register people as sex offenders and simultaneously keep them out of the criminal justice system is incomprehensible, while sentencing guidelines already allow for low-level offences to be sanctioned with community orders after detailed risk assessments by the probation service.

A cursory analysis of Bailey’s plan invites speculation that his comments arise from an alternative agenda.

The notification requirements under the Sex Offenders Act 1997 are triggered by specific events in the criminal justice system. Without a charge and conviction the police would have to rely on an innovative use of conditional cautions. Anything genuinely outside the purview of the police would require an amendment to the 2003 act.

It is also questionable whether these proposals will in fact result in freeing any police resources. It is impossible to focus on “the most dangerous offenders” if the police cannot reliably identify them, and separating “low-level offenders” from more dangerous paedophiles would require significant resources.

Once indecent images have been found, the police have to spend months conducting forensic computer analysis to rule out the possibility that the individual possesses anything more serious.

Bailey has inadvertently, or perhaps intentionally, revealed the extent of the crisis our police forces face. It seems unlikely to be a coincidence that his comments coincide with reforms to pre-charge bail that have proved unpopular with the police.

The Policing and Crime Act 2017 will soon require that the police satisfy a magistrate that they are dealing with their investigations expeditiously if they want to extend pre-charge bail.

Indecent images investigations are labour intensive and a relatively low priority. Often rumbling on for months, they are one of the areas where the effects of this reform will be most acutely felt by the police.

Bailey’s comments may be calculated to spur the government to reconsider how to allocate priority in an age of continued austerity: either decriminalise some indecent images or increase funding for the police.

Jenny Wiltshire is a partner at Hickman & Rose, a London law firm

Tweet of the Day

British and continental systems of politics and law are fundamentally incompatible, writes @DanielJHannan

ConservativeHome @ConHome

Blue Bag

End of an era for legal publishing

A whole generation of City of London lawyers has grown up with a weekly dose of gossip about who is moving where from The Lawyer magazine. Next month that era – which began in the late 1980s – ends as the magazine’s owner has announced it is moving to monthly publishing for its print edition.

The move reflects the existential crunch that trade and professional weeklies are facing in the face of online publishing. About two years ago, The Lawyer’s main competition, Legal Week, made a mockery of its name by completely ditching its hard copy and becoming exclusively a daily news website.

“The move to monthly [publishing] is a counterpart to our premium online content,” Catrin Griffiths, The Lawyer’s editor, told The Brief, adding that the monthly print version would continue to be distributed to senior private practice and in-house lawyers. Nonetheless, industry scuttlebutt suggests that it may not be long before Centaur Media, the magazine’s publisher, folds the print edition entirely.

Others in the crowded weekly market offered varying degrees of commitment to print. Paul Rogerson, editor of the Law Gazette, published by the Law Society, said: “We will continue to put the members first.” While Jean-Yves Gilg, editor of the Solicitors Journal, said that its publisher, Ark Group, was “committed to [it] remaining a weekly magazine for the present”.

The most unequivocal supporter of old school dead tree publishing among the legal weeklies was Jan Miller, editor of the New Law Journal, who said its owner, LexisNexis, “is committed to maintaining hard copy and enhanced online production”.

Another reason to keep lawyers off Twitter …

Another reminder to the legal profession that social media – especially Twitter – is a minefield. The most recent lawyer to be licking his wounds is Peter Todd, a civil litigation partner at Hodge Jones & Allen, a London law firm. Todd clearly was swept away in a tide of enthusiasm when Liz Truss, the lord chancellor, announced earlier in the week that she had recalibrated the discount rate applied to damages awards in catastrophic injury and clinical negligence cases.

Claimant lawyers have been campaigning for years that the 2.5 per cent discount applied to lump sums was unfair to victims as interest rates had been running at unprecedented lows ever since the “great recession” of 2008.

Therefore, in what must have been unbridled joy at the prospect of clients getting a fairer deal, Todd tweeted in a post that has subsequently been deleted: “Is it too early to open the Moët?”

Popping the bubbly was the last thing defendant lawyers had in mind, as they warned that Truss’s recalibration would tip the NHS into financial crisis and add £100 to average motoring insurance policies. They reckoned that Todd’s tweet lived up to their long-held views about ambulance chasing – and there will be one or two newspapers that will agree.

Todd told The Times that he was not interested in elaborating on the tweet. The day must be approaching when law firm management committees issue this edict to their partners and associates alike: No more tweeting!

The Churn

A run down of the big partner and team moves this week

Former Bar leader takes reins at Atkin Chambers

Chantal-Aimée Doerries, QC, last year’s chairman of the Bar Council, has been elected head of Atkin Chambers, the Gray’s Inn set announced yesterday.

The energy disputes specialist, who is a joint US-German national, made history when she became the first non-British Isles lawyer to lead the Bar of England and Wales.

She was thrown into the spotlight during the controversy after the High Court ruling on Brexit in November. In the aftermath of press attacks on the three judges that ruled that MPs must be given a vote on Article 50, Doerries harshly criticised the lord chancellor, Liz Truss, for – in the Bar’s view – not defending judicial independence.

Doerries succeeds Andrew White, QC, as head of Atkin.

And over in law firm-land …

Kennedys, the City of London insurance law specialist practice, has stormed Hill Dickinson and pinched a 24-strong personal injury team. Included are three partners: Alan Dury, Suzanne Wilkinson and Paul Bedford. The team will be based at Kennedys’ Sheffield office.

And in Germany, the Düsseldorf outpost of the US law firm McDermott Will & Emery has lured Alexa Ningelgen from its transatlantic rival Hogan Lovells. The public law specialist joins the Americans as a partner.

Quote of the Day

“It was difficult in the 80s and 90s. There was a belief that women did family work and anything else was for the men. In criminal work quite a lot of that discrimination came from clients who still thought that a man would fight harder for them.”