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The Times

Monday, December 19 2016

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


  • Row as Northern Ireland DPP prosecutes former soldiers
  • Lawyers launch petition for financial mis-selling tribunal
  • Eversheds strikes US merger deal with Atlanta partner
  • Oldest Briton convicted of sex offences
  • Silk fined £2,000 for unwanted sexual advances
  • DJ sentenced to jail in landmark online piracy case
  • Comment: No barristers are coining it on legal aid rates
  • The Churn: Mansfield moves to Gray’s Inn set
  • Blue Bag diary: Setback for paperless courts

Plus, see our plans for Brief Premium and archive of articles so far.

Tweet us @TimesLaw with your views.

Story of the Day

Row as Northern Ireland DPP prosecutes former soldiers

Barra McGrory, QC, the director of public prosecutions in Northern Ireland, caused controversy over the weekend when he announced that two former British soldiers would stand trial for the alleged murder 45 years ago of an IRA commander.

Joe McCann, 24, was shot dead in disputed circumstances in Belfast on April 15, 1972. Soldier A, now 67, and Soldier C, 65, are surviving members of the Parachute Regiment patrol that fired on McCann, prosecutors said.

The Times reported that a spokesman for the prosecution service had said that the decision to prosecute the soldiers was made after a review of evidence on McCann’s death.

The case was referred to McGrory (pictured) by John Larkin, QC, the province’s attorney-general, in March 2014 and has been under review since then. The two former soldiers are likely to appear in court next year.

The move is controversial for several reasons. As The Daily Telegraph reported, the soldiers’ lawyer, Philip Barden of Devonshires Solicitors, a City of London law firm, maintains that they were given assurances by detectives for the Historical Enquires Team that they would not be prosecuted.

In addition, the paper points out that before becoming Northern Ireland’s DPP, McGrory had acted for former senior IRA figures, including Martin McGuinness, now deputy first minister.

McGrory was called to the Bar in 2009 and became the first solicitor to become a QC in Northern Ireland; he was appointed DPP in 2011. The lawyer is adamant that his past representation of senior IRA figures does not colour his independence as DPP.

The Telegraph cited a statement from McGrory’s office saying the decision to prosecute the former British soldiers was “reached following an objective and impartial application of the Test for Prosecution that was conducted in accordance with the Code for Prosecutors and with the benefit of advice from senior counsel”.

News Round Up
Lawyers launch petition for financial mis-selling tribunal

Lawyers have launched an online petition in an attempt to apply public pressure on banks to settle compensation claims for financial product mis-selling.

The petition launched on Friday calls on the government to create a financial services tribunal that would resolve “customer disputes”.

Behind the campaign is LEXLAW, a firm of solicitors and barristers based in Middle Temple. It is acting for Wenta – whose chairman won the Queen’s Lifetime Achievement for Enterprise Promotion last year – which claims that RBS has failed to pay up for allegedly mis-selling a complicated financial product that went wrong.

The petition states that “major banks and other financial services institutions are often in dispute with customers who deserve protection. Access to court is costly. The Financial Ombudsman scheme is inadequate. The Financial Conduct Authority is not equipped to resolve disputes. Tribunals offer scrutiny, justice and censure which deters misconduct."

LEXLAW opened the petition after a debate on Friday of a private member’s bill in the House of Commons in which MPs were encouraged to support the creation of a “commercial financial dispute resolution platform”

“Only a tiny fraction of financial services disputes are ever litigated,” Mr M Ali Akram, principal lawyer at LEXLAW, said. “And the vast majority of good litigation cases settle, which means there is a lack of meaningful court precedents to force financial services institutions to deal with disputes fairly.”

Oldest Briton convicted of sex offences

A man aged 101 who was found guilty of 21 sexual offences on Friday is thought to be the oldest person convicted in the British courts.

Ralph Clarke will be sentenced today after being convicted at Birmingham crown court of multiple incidents of indecent assault and indecency with a child.

The jury heard that Clarke, from Erdington, a suburb of Birmingham, committed the offences between 1974 and 1983, abusing three victims at his home, in his garden shed and in a lorry.

Prosecutors said that the decision to proceed with the case against such an elderly defendant was taken in accordance with the code for crown prosecutors. They said that his age and wellbeing were “considered, but given the serious nature of the offences, breach of trust and vulnerability of the young victims, it was decided that a prosecution was in the public interest”.

Claire Nicholls, a senior lawyer at the West Midlands Crown Prosecution Service, said that “for over 40 years Clarke thought that he had got away with his crimes. Due to the courage of the victims we were able to bring him to justice and I would like to thank them for their support throughout this difficult and sensitive prosecution”.

Eversheds strikes US merger deal with Atlanta partner

One of the UK’s biggest law firm brands is to become a transatlantic operation after striking a merger deal with an Atlanta practice, it was announced on Friday.

Eversheds – which has more than 50 outposts across the UK and internationally – will merge with Sutherland Asbill & Brennan in a deal that will create a practice that has 2,300 lawyers.

It is estimated that the combined annual revenues for the two firms will be more than £562 million, putting it in the world’s top 40 legal businesses by turnover. The British side of the equation will easily be the dominant play, with Eversheds clocking up revenues of more than £400 million last year.

The deal, which will result in 61 offices in 29 countries, will be formally completed on February 1.

The firms said on Friday that they were approaching the deal as equals and would be known in all jurisdictions as Eversheds Sutherland. Initially the firm will have joint chief executives, with the British side expected to be filled by Lee Ranson from May.

DJ sentenced to jail in landmark online piracy case

A DJ from Liverpool was sentenced on Friday to a year in prison for illegally distributing chart hits online in what prosecutors described as a milestone in their battle against online pirates.

Wayne Evans, 39, was found guilty of piracy that potentially cost the music industry millions of pounds and deprived artists of payment for their work. Evans had pleaded guilty to the charges in October.

It is the first prison sentence to be handed down as a result of a joint investigation between PRS for Music, the body that licenses the playing and performing of copyrighted music, and the City of London police’s intellectual property crime unit.

“Music piracy on a commercial scale is a serious criminal offence and this sentencing by the crown court acknowledges that,” Simon Bourn, head of litigation at PRS, said. “We hope that today’s sentencing sends a message to all those involved in this type of criminal activity that consequences will follow.”

Detective Constable Steven Kettle, of the City of London police, added that the “sentencing will suggest to others that illegally distributing music is not without its consequences. Evans caused significant loss to the music industry and his actions will have affected jobs across the music industry".

Silk fined £2,000 for unwanted sexual advances

A Queen’s Counsel from a Birmingham chambers has become the latest lawyer embroiled in scandal, for stroking a woman’s thigh in a bar.

John Randall, QC – who was called to the Bar nearly 40 years ago – was slapped with a £2,000 fine from the profession's regulator after he “made sexual advances” to a woman two years ago.

According to a judgment handed down last week and published by the Bar Standards Board, a tribunal found that Randall made the advances without consent at a bar in Creaton, Northamptonshire “by repeatedly touching and stroking [the woman’s] thigh”.

The commercial law barrister from the Birmingham branch of St Philips chambers was reprimanded as well as fined. The ruling is open to appeal.

Randall’s case comes on the heels of two other prominent incidents of lawyers behaving badly. The Times reported that several days ago John Burnand, a partner at the law firm Winckworth Sherwood, resigned after apologising for having groped several female colleagues at the firm’s Christmas party.

It also recently emerged that Nicholas West, an insurance law specialist, had left the City law firm Ince & Co in October after allegedly “attacking” a partner from his previous firm, Kennedys, during a lunch at the annual rugby sevens tournament in Dubai.

In Brief

Rapist officer’s victims sue over police failures – The Times

Apple digs in for appeal over €13bn tax ruling – The Times

Mid-tier law firms struggle to turn profits – Law Gazette

Top Kirkland partners see cuts to equity shares – Legal Week

Buyers win legal battle over unfinished Spanish homes – The Times

Demand for free legal advice spiralling upwards, charity reports – Legal Futures


No barristers are coining it on legal aid rates Francis FitzGibbon, QC

Take a big pinch of salt with the idea that barristers’ earnings “have rocketed over the past five years in areas of law thought to be suffering from government cuts to legal aid budgets and eligibility”, as reported in Friday’s Brief

The story was based on anecdotal research by a student guidebook that is at odds with the official statistics.

In reality, criminal and what remains of family law legal aid have been declining for years, regardless of inflation. The Ministry of Justice’s figures show criminal legal aid going down on average by 8 per cent in 2013-15 alone.

The most junior barristers take the biggest hit. They inevitably do the lowest-paid work and they often have to travel to remote crown courts for standard hearings, and can make a loss after paying their expenses on the £87 fixed legal aid fee.

The gross fees are turnover not income or salary. Overheads come out of them, including tax, rent paid to chambers, student debt, textbooks, pension contributions (if any) and travel costs – criminal law barristers work wherever they are sent across the country and often cannot reclaim the fares.

In family law, legal aid has all but vanished, which means that litigants have to pay privately or represent themselves. Some practitioners here may be doing relatively well but not on legal aid.

The private market in criminal law is much smaller. Only a tiny minority of criminal barristers can rely on it for their incomes.

No one goes into criminal law to get rich – it is and always has been a vocation. The tragedy is that the low earnings, lack of progression in fees, and long, unpredictable hours discourage excellent people from starting and drive others out after a few years.

That means that the talent pool for future QCs and judges is smaller. Ultimately, the public is not served if the best people cannot afford to work in the area of law that is of greatest concern to society.

The government recognises that the existing fee structure for criminal advocacy fails to serve the public interest and improvements are being developed within the same budget that will distribute money more fairly and bring back career progression.

This should make the criminal Bar more attractive to beginners and stem the flow of people – especially women – who leave after a few years of practice. But they will not be coining it on legal aid.

Francis FitzGibbon, QC, is chairman of the Criminal Bar Association and a tenant at Doughty Street Chambers in London

Tweet of the Day

Bruce on desert island discs. 'Good songs live the years with you'. . Indeed, the soundtrack to our lives .

Alison Eddy @alisoneddy

Blue Bag

Setback for paperless courts

Moves towards “paperless” courts took a knock on Friday when one junior barrister received a sharp rebuke from the bench after failing to get to grips with modern technology.

Sitting at the Royal Courts of Justice in London, Mrs Justice Lang became increasingly impatient as counsel for the applicant in an extradition appeal struggled to find a document on her laptop. Reaching the end of her tether, the judge snapped at counsel: “Next time, bring a paper bundle to court.”

All round, it was a day that the junior barrister will want to forget because her client lost the appeal and will be sent back to Romania to face charges involving three motoring offences.

Ravin’ Rich from the Rolls Building

Elsewhere in the bosom of justice, another judge had a moment that nearly rivalled Mr Justice Popplewell’s famous “What is Linford’s lunchbox?” remark made 18 years ago.

Richard Millett, QC, was sitting in the Rolls Building hearing an application for an injunction to stop the holding of an illegal rave. Diving straight into the legal heart of the matter, the judge asked counsel: “What's the difference between a rave and just a very nice party?” Helpfully, counsel was able to produce a YouTube video of a rave, prompting the judge, who is a member of Essex Court Chambers in Lincoln’s Inn Fields, to remark: “I have been to Chancery Bar parties that are more lively than that.”

Nonetheless, the Cambridge university-educated judge granted the injunction and suggested that the owners of the site might consider putting a notice regarding the injunction in pictorial form so that would-be ravers disinclined to read legal notices would not be left out.

The Churn

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

Mansfield moves to Gray’s Inn set

Michael Mansfield, QC – the renowned civil liberties specialist who shut his chambers three years ago amid claims that legal aid cuts had driven it to the wall – has joined a set in Gray’s Inn.

In an announcement on Friday, 1 Gray’s Inn Square said that it was bringing in the 75-year-old firebrand silk – who has acted for the Birmingham Six, the Guildford Four and the family of Stephen Lawrence – as well as the rest of Mansfield Chambers, the set he launched after the demise in 2013 of Tooks Court.

Mansfield Chambers was the home of Charlotte Proudman, the family law barrister who shot to fame more than a year ago when she publicly complained that a City of London solicitor had complimented her LinkedIn profile photograph. Proudman has since moved to Goldsmith Chambers in the Temple.

Mansfield’s move will bring him together with Barbara Hewson, a human rights lawyer with a reputation for controversy, not least in her advocacy for lowering the age of sexual consent.

Elsewhere on the roundabout …

Patrick Allen, senior partner of Hodge Jones & Allen, his namesake London law firm, is to hand over the management reins after 40 years. The firm announced on Friday that Vidisha Joshi, 38, a personal injury law specialist, will take over the top role. She joined the firm six years ago. Allen will retain his senior partner role and continue to chair the firm’s management board.

North of the border, Alison Atack has been elected vice-president of the Law Society of Scotland. A private client partner at Lindsays in Glasgow, Atack will begin the role in May.

Quote of the Day

“It would be an understatement to say the majority of City lawyers were hoping both votes would go the other way [in the Brexit referendum and the US presidential election]. Now the profession is facing a 2017 as unpredictable and unnerving as 2009 seemed in the aftermath of Lehman’s collapse.”