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The Times

Monday, March 13 2017

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

Breaking: Top judges hear landmark appeal over rape victims

Britain’s largest police force will later today tell the Supreme Court that victims of crime should not use human rights law to sue officers over the handling of criminal investigations.

London’s Metropolitan Police force is challenging a 2015 Court of Appeal ruling that Scotland Yard breached the human rights of two women who had been raped by John Worboys, the “black cab rapist”. Appeal judges found that the rights of the women -- identified only as DSD and NBV -- were breached by failures in the investigation. The case, which is listed for today and tomorrow, will be heard by Lord Neuberger, the court’s president, Lady Hale, its deputy president, and Lords Mance, Kerr and Hughes.

Also today ...

  • Ex-judge rallies behind colleague in rape row
  • £24,000 libel damages over columnist’s tweet
  • Solicitor faces striking off after court head-butting
  • Muslim detective sues Scotland Yard for racism
  • Ex-vicar sentenced in landmark eye-tracking trial
  • Complaints-levy rise enrages Scottish solicitors
  • Comment: Law is playing catch-up with Internet of Things
  • The Churn: Gowling WLG sheds private client team
  • Blue Bag diary: Cheap salads wind up Withers women

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

Story of the Day

Ex-judge rallies behind colleague in rape row

A judge who was castigated over remarks about drunk women and rape attacks spoke out yesterday to defend Judge Lindsey Kushner as "absolutely right" in the face of criticism from women's rights campaigners.

Judge Mary Jane Mowat (pictured), who has now retired from the bench, also condemned Dame Vera Baird, QC, a former solicitor general, for condemning the judge for allegedly attacking victims.

"These comments make me furious," Judge Mowat told The Times. "It is absolute nonsense. We are just pointing out the obvious and speaking from professional experience of witnessing the ordeal that women go through at trial.

"Rape is a vile crime and one of the lowest of the low and these comments are not to belittle it. Of course the assailant is responsible for any such attack, but if women become drunk they are putting themselves in danger."

After sentencing a rapist in Manchester last week, Judge Kushner, sitting in her final case before retiring, said that there was “absolutely no excuse” for sex attacks, but that men gravitated towards vulnerable women.

Dame Vera, a former Labour MP who is now the Northumbria police and crime commissioner, described the judge's comments as “victim-blaming” and predicted that they would stop victims coming forward.

Judge Mowat said that such comments were "predictable" and did not appear to have the best interests of women at heart. "What Judge Kushner and I said was borne of our very unhappy forensic experience, where we have seen time after time a sexual assault case involving a witness intoxicated, and seen the ordeal they have had to go through, not just because of the event but because of going to court and all that that entails,” she said.

"They have to suffer as a result of laying themselves open and the extensive cross-examination, but conviction is difficult as so often the allegation relies on one word against another, and if a woman was intoxicated and did not realise the impression her behaviour was having, or not realising sometimes what occurred, either clearly or not at all, a jury faces an impossible task in conviction.”

She added that Judge Kushner was "brave" to make her comments after her final trial last week and that to do so in court gave them greater weight.

Three years ago Judge Mowat prompted anger among women's campaigners when she linked the low rape conviction rate to women’s drunkenness after retiring from the bench at Oxford crown court

News Round Up
Damages over columnist’s tweet 'saviour of libel law'

A blogger has won £24,000 damages in a libel action against the controversial columnist and radio host Katie Hopkins (pictured) over tweets that she said caused “serious harm” to her reputation.

Media lawyers highlighted the relatively high damages for a social media libel, describing the judgment as meaning that Twitter was “the saviour” of libel work for media claimant law firms.

Jack Monroe, 28, a food and politics blogger who campaigns on poverty issues, sued the Mail Online writer over two “war memorial” tweets, claiming that she was “defamed” by the former Apprentice contestant. The Times reported that Mr Justice Warby at the High Court in London agreed and awarded £24,000 in a ruling that sets a new record for the level of damages over a tweet and confirms, lawyers said, that Twitter is not a “lawless Wild West”.

Hopkins is also liable for costs and was ordered to pay £107,000 on account within 28 days, with the final sum to be assessed.

After the ruling, Mark Stephens, a partner at the London law firm Howard Kennedy, pointed out that recent online defamation cases had resulted in settlements or awards of between £3,000 and £5,000. “It is interesting that the judge has set the tariff in this case much higher,” said Stephens. “Twitter is now the saviour of the libel work for English lawyers.”

Claimant lawyers hailed the ruling as putting social media on a par with traditional print publishing in terms of defamation actions. “Today you don't need access to a printing press, typewriter or computer; a phone will suffice to make you a publisher,” said Amber Melville-Brown, a partner at Withers.

“Your words can cause substantial damage and distress – and can leave you paying substantial damages as a result. Free speech means the ability to free-tweet if you like, but don’t think there won’t be a price to pay if you break the law when you do so.”

Solicitor faces striking off after head-butting businessman in court

A 69-year-old solicitor faces being struck off after he was sentenced on Friday for viciously head-butting the father of an EastEnders actor in London’s commercial court.

Philip Saunders launched a short but violent attack on Mohammad Ghadami, 62, a businessman and the father of Davood Ghadami, who appears regularly in the BBC television soap. The two men were on opposing sides of a £100 million property dispute, which was being heard at the Rolls Building, the state-of-the-art home of London’s commercial high court.

In an altercation that was captured on the court building’s CCTV in April last year, Saunders is seen approaching Ghadami in the corridor. The property developer attempts to move round the lawyer and swings his briefcase between Saunders’ legs.

Saunders can then be seen to back away from Ghadami before lunging at him with a head-butt, breaking the victim’s nose. Ghadami is seen on the videotape clutching his blood-stained face before sidestepping the lawyer and heading for the stairs.

Saunders was found guilty of assault occasioning actual bodily harm, and was sentenced at Inner London crown court to a prison term of 18 months. The judge, Steven Gasztowicz, QC, suspended the sentence for 18 months and ordered the solicitor to undertake 200 hours of unpaid work. The judge also imposed a five-year restraining order on Saunders, preventing him from approaching Ghadami. He was placed under a four-month curfew forcing him to stay indoors between 8pm and 6am. The lawyer was also ordered to pay £5,000 towards prosecution costs.

Saunders qualified as a solicitor in 1974 and has specialised in high-value commercial property deals and litigation.

A spokesman for the Solicitors Regulation Authority said that the professional watchdog was “aware of the situation and will review the available information before deciding on next steps”.

Muslim detective sues Scotland Yard for racism

A judge has allowed a Muslim policewoman to bring an employment tribunal claim of race and sex discrimination against Scotland Yard, it emerged at the weekend.

The Metropolitan Police failed to block a claim from Detective Constable Nighat Hubbard, who was appointed an MBE in 2014 for her charity work.

The Sunday Times reported that a judge ruled last week that it would be “just and equitable” for Hubbard, who is still a serving police officer, to sue Scotland Yard after the force argued that her claim had been made too late.

Hubbard claims that white colleagues were allowed to work on more complex investigations while she was held back. She also alleges that male officers made discriminatory comments to her and other women in the force.

In the preliminary judgment, it was revealed that two other female ethnic minority officers, PC Usha Evans and Detective Constable Catherine Bell, had also brought sexism and racism claims against the Met. The women alleged they had faced discrimination from white male officers.

Hubbard’s law firm, Equal Justice Solicitors in London, said the case demonstrated that the Met had failed to reform since 2014 when Carol Howard, a black female police officer, was found by a tribunal to have been bullied and harassed by her managers.

Hubbard refused to comment. It is understood that Bell’s employment claim is continuing while Evans’s case has ended, although the result remains confidential. The Met said: “We are unable to discuss further while proceedings are ongoing.”

Ex-vicar sentenced in landmark eye-tracking trial

A former vicar who abused a choirboy more than 35 years ago received a four-year prison term on Friday in a landmark trial during which his victim gave evidence using eye-tracking technology that turned his blinks into words.

Cyril Rowe, 78, was sentenced at Bournemouth crown court after being found guilty of three counts of indecent assault, which took place at a Tower Hamlets church between 1979 and 1981.

The victim, 47, died of motor neurone disease in a hospice before hearing that his abuser had been found guilty but he achieved his dying wish of giving evidence against Rowe despite his failing health, which rendered him unable to speak or write. The Crown Prosecution Service applied for special measures to enable him to give his evidence during the trial from his hospice over a video link. He was aided by an intermediary and eye-tracking technology.

“The way Cyril Rowe’s victim was allowed to use this eye-tracking technology over video link shows how the CPS can help victims and witnesses who might otherwise struggle to give evidence in court,” said David Nixon, the CPS lawyer in charge of the case. As a result the jury were able to hear his powerful testimony which has ultimately led to the convictions and today’s sentence.”

Police body-camera evidence secures conviction

Meanwhile, video evidence taken by a police officer’s body-camera has been used to prosecute a man who assaulted a woman and a boy.

Despite both victims having spoken to the police after the assaults in July last year at their home in south London, they declined to give evidence in court. However, magistrates allowed footage recorded by officers straight after the attack to be played during the trial of Ansu Jallow, 43, who was convicted of two charges of assault on Friday.

Safira Afzal, from the Crown Prosecution Service, said: “We know these can be difficult and sensitive cases to put before a court and victims are sometimes reticent to support prosecutions for a variety of reasons. This case proves there are new and compelling ways to present cases and achieve justice for victims.”

Complaints-levy rise enrages Scottish solicitors

A rise in the levy that Scottish law firms are forced to pay to deal with complaints is likely to be passed on to clients in higher fees, solicitors warned at the weekend.

The Scottish Legal Complaints Commission (SLCC), the quango that oversees complaints from the public against all lawyers in the jurisdiction, wants to increase the average levy on lawyers by 12.5 per cent.

Officials from the commission claimed that the increase was required to fund a rise in the number of complaints made against Scottish lawyers over the past year. They said that after five years of maintaining a lower levy by using reserves, it has “no choice” but to increase the levy “to continue serving the public properly”.

The decision has triggered anger among solicitors, who maintain that the rise in the levy is unnecessary and unfair. Senior figures at the Law Society, which represents Scotland’s 11,000 solicitors, argued that recent rises in the number of legal complaints equated to “only a handful extra” each week. The society said that the commission should absorb that increase within its existing budget.

“We find it difficult to believe this kind of rise would be suggested or approved if the SLCC was funded by taxpayers’ money instead of a levy on the legal profession,” Lorna Jack, the society’s president, said. “Whilst it is solicitors who fund the vast majority of the SLCC’s spending, consumers should also be concerned as it is clients who ultimately pay through their solicitors’ fees.”

The commission said that it was disappointed with the Law Society’s reaction to its proposed budget. It claimed that spread over five years the proposed rise was equivalent to only 5 per cent and that the average increase for solicitors in private practice would amount to £36, to £368, annually.

The commission argued that Scotland’s solicitors would pay an even lower average increase of £24, while those working for corporate legal departments would see the levy rise by only £15 each.

In Brief

Only one person prosecuted in crackdown on chimney pollution – The Times

Barring press may put solicitor regulator in breach of law – Legal Futures

Trump under pressure to fill dozens of US attorney jobs – Financial Times


Law is playing catch-up with Internet of Things Anthony Robinson

WikiLeaks’s latest dump of 9,000 CIA files revealed that US spies, in collusion with British intelligence services, had, as well as targeting smartphones and computers, developed a programme called Weeping Angel, which is allegedly able to turn a television set into a monitoring device – even when it appears to be switched off.

Frightening indeed – and it is all down to something called the Internet of Things. As the physical and online worlds merge, IoT devices of every type become able to gather information and communicate with each other.

While the benefits are convenience and efficiency for the consumer, there are serious concerns that the IoT creates dangerous vulnerabilities to data protection and may infringe the rights of consumers.

A study published last September co-ordinated by the Global Privacy Enforcement Network found that 59 per cent of devices failed to explain how information was collected, used and disclosed, 68 per cent failed to explain how the information was stored and 72 per cent neglected to explain how the information gathered could be deleted.

It is this lax attitude that is key to the privacy issue; the sheer number and range of IoT devices being rushed to market mean that security and protection from hacking or data breaches have been pushed low on the list of priorities.

While most people are aware of the need to protect information such as bank account details, the collection of seemingly trivial data hoovered up in vast quantities by devices has yet to sink in.

The UK Data Protection Act 1998 draws a clear distinction between personal data and sensitive data, with far greater controls being applied to the use of the latter. Sensitive data is currently defined as that which applies to areas such as race, politics, religion and sex. The obvious problem with this distinction is that, in the age of so-called big data, all data can become sensitive by sheer weight of accumulation.

A thousand tiny bits of information per hour, relatively harmless in isolation and offered freely without protection, can merge to build a thoroughly detailed picture of an individual – a picture that would be of interest to hackers, corporations and, it seems, our own governments.

When the EU’s General Data Protection Regulation comes into force in May 2018, it will introduce much tighter controls over the information that companies gather and the amount that the consumer will have to be told about this information. The hope must be that manufacturers will begin incorporating security measures when developing IoT devices, offering greater protection to consumers.

The problem with this scenario, as far as the UK is concerned, is that we appear to be moving inexorably towards a hard Brexit. If this means ditching the EU regulation then it is to be hoped that the equally tough regulations are introduced into UK data protection law.

Anthony Robinson is a solicitor at Excello Law, which has offices in London, Liverpool and Leeds

Tweet of the Day

Much sympathy with @OwenJones84 position on Twitter & his need & reasons to take a break.

Schona Jolly QC @WomaninHavana

Blue Bag

Cheap salads wind up Withers women

Most international law firms would have dived into a bunker if they had slipped on the massive potential banana skin that was last week’s International Women’s Day.

But Withers, the pukka private client practice in the City of London and other world centres where the mega-wealthy play, deserves points for putting its hands up in the face of embarrassing publicity over its canteen deal on the day.

As the website RollonFriday reported, women partners and junior lawyers alike were shocked by the offer of half-priced salads for women. They inferred that the premise was that women must be constantly dieting and therefore would not be interested in half-price roast beef or half-price sausages and mash – or indeed half-price gooseberry fool.

After a brief but vocal howl of protest, the offer was quickly removed – but too late to prevent the embarrassing episode being leaked. Initially, a firm spokesman told The Times that ironically Withers had one of the most female partnerships in the City – 40 per cent of its senior lawyers are women, including Margaret Robertson, who has been managing partner since 2007.

And then Kate Landells, a family law partner at the firm, commented on the RoF site to say: “This proves definitively that the universe has a sense of humour! Our catering is outsourced. We knew nothing of the promotion launched by the caterers and stopped it as soon as we saw it.” She pointed out that while the half-price lettuce leaves were briefly on display, “we were actually running a lunchtime seminar … for all staff in celebration of International Women's Day where three of our female partners shared their career stories and top tips for women in the workplace …”

The Churn

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

Gowling WLG sheds private client team

Gowling WLG, the Anglo-Canadian law firm formed by a merger a little more than a year ago, has shed its private client and property teams.

The decision means that 14 lawyers will move to Forsters, a firm based in Mayfair, west London, including four partners and ten associates. The partners making the move are: Anthony Thompson, Catharine Bell, Nick Jacob and Daniel Ugur. They will officially join Forsters on May 1.

Another niche practice, Signature Litigation, has recruited Josh Wong to its partnership from another transatlantic firm, DLA Piper.

DLA has been cutting deals farther afield. It took over a Portuguese practice with whom it has been in a formal referral relationship for the past seven years. The Anglo-American firm is taking over ABBC in Lisbon, boosting its lawyer headcount by 50.

In Paris, the local office of Allen & Overy, the City of London “magic circle” law firm, has lured Driss Bererhi to its partnership. The banking and finance lawyer moves from the local office of fellow English law firm, Bird & Bird.

Bird & Bird was not left mourning Bererhi’s loss for long because over in Copenhagen the firm picked up Peer Petersen, a media and entertainment lawyer, for its Denmark partnership. The lawyer moves from Martensen Wright, a firm in California that focuses on advising Scandinavian businesses aiming to open in the United States.

Closing Statement

Best to read the brief

One of the dangers of instructing Billy Rees-Davies, QC, writes James Morton, who used regularly to brief the renowned criminal law silk and Conservative MP, was that you could never be sure he had read his brief.

Rees-Davies once persuaded his client to plead guilty on a nod from the judge that there would be no custodial sentence. He then began to earn his fee with a barnstorming if unnecessary mitigation.

It was a fraud case and the principal Crown witness was just about as guilty as Billy’s client. “If my client had not pleaded guilty,” he told the judge confidently, “I would have cross-examined the witness Smith and shown him to be the blackguard he is. I would have put his convictions to him one by one in detail.”

“Mr Smith is a man of good character,” interposed prosecuting counsel who, I believe, was the charming Henry Pownall, who went on to become one of the permanent judges at the Old Bailey.

But Billy was undeterred. “In that case,” he purred at Pownall, “Smith is a very, very fortunate man.”

James Morton is a former criminal law solicitor and now author