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Frances Gibb and Jonathan Ames bring this morning’s must-read of all things legal, including news, comment and gossip. Breaking: Judicial review threat over press regulation The government will face a judicial review if it fails to implement new libel laws which protect victims, campaigners warned last night, reports Jill Sherman in The Times. Hacked Off, which has led the campaign against press freedom, said it will launch a judicial review if ministers failed to implement a clause forcing newspapers to pay costs even when they win libel claims. The move follows the formal recognition of a new press regulator, Impress, which already represents some small papers and websites. Also today ... - Courts must approve life-ending advance directives
- Heathrow deal likely to face barrage of legal flak
- Judges told to beef up sentences for flouting court orders
- Medical report quality plummets despite bespoke scheme
- Intellectual property accounts for 40% of Europe’s jobs
- UK law firms predict financial hit from Brexit
- Comment: Top US court is becoming dangerously political
- Blue Bag diary: Wheeling out Wheeler, QC, on Brexit
- More Blue Bag: Linklaters and diversity
New Brief Premium - Court modernisation threatens judicial independence, argues Bar chief Chantal-Aimée Doerries, QC
- Breaking up is costly to do – family courts head for crisis
Tweet us @TimesLaw with your views.
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Courts must approve life-ending advance directives
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Patients’ instructions to doctors to end their lives should be brought before the courts for approval before life-sustaining treatment is withdrawn, judges say. They advise that no one who is in a coma or an unconscious state should be allowed to die without the case first being considered by a court. Under a living will, people can instruct doctors to withdraw their medical treatment if they become incapacitated and unable to make decisions for themselves. The 2005 Mental Capacity Act – condemned by critics as a law for euthanasia by the back door – gave legal force to living wills and made it a criminal offence for doctors to disobey them. All known cases have been brought before the courts. However, a practice direction from Sir James Munby, president of the family division of England and Wales, means that living wills that instruct the withdrawal of life-sustaining treatment, also known as advance directives, should still be endorsed by the courts. Withdrawal of medical treatment involves doctors removing tubes providing patients with nourishment and fluids, because in law artificial nutrition and hydration counts as treatment. The incapacitated patient then dies of hunger and thirst. Because of the act, medical staff who ignore a living will and continue to keep a patient alive can be prosecuted for assault and sent to jail. However Sir James’s direction last year, which was recently highlighted by another judge, states that in future, decisions about the withdrawal of artificial nutrition and hydration “should be brought to the court”. The declaration was disclosed to the public in a speech by the senior Court of Protection judge, Mr Justice Baker, who said: “Applications to the court should be obligatory in all cases where the withdrawal of artificial nutrition and hydration is proposed, at least for the time being.”
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Heathrow deal likely to face barrage of legal flak
Airlines, passengers and residents of west London should not anticipate flights zooming down a third runway at Heathrow any time soon, aviation law experts predicted in the wake of the government controversially approving development yesterday. The announcement from Chris Grayling, the transport secretary, was described as a “false dawn” by one leading aviation law firm in the City of London. Even if the House of Commons backed the decision, said Liz Jenkins, a partner at Clyde & Co, “there will still be a number of legal hurdles to overcome before any shovels can break ground”. Lawyers predicted that apart from the political opposition, activist local residents, local authorities and environmentalists will pile in to raise a host of legal issues around planning and regulation, not least including challenges over noise and emissions. Jenkins also raised another problem – the UK’s plans to leave the EU. She said that there was an “acute skills shortage facing the industry. This could lead to further delays if contractors are unable to tap into the large pool of talent in Europe, post-Brexit, as easily as they can now.” Others predicted legal hurdles might still provide rival airports with room to manoeuvre. Duncan Field, a partner at the transatlantic firm Norton Rose Fulbright, described Gatwick chiefs as having “a genuine window of opportunity and it is not at all surprising that their reaction to the government’s decision has been to signal the intention to carry on”. Indeed, Shabana Anwar, a partner at Bircham Dyson Bell, forecast that Gatwick could itself be in the queue to bring a legal challenge of the government’s backing for expansion at Heathrow. Anwar pointed out that the London mayor views Gatwick’s proposals “as the cheaper, quicker and more environmentally friendly option”. However, at least one law firm was pleased with Grayling’s announcement. Barlow Robbins, a three-office general practice in Surrey, issued a statement saying: “This is very welcome news for all in the south-east. It will bring more employment, more opportunities, more capital investment. The challenges are significant but we will all benefit from the expansion of Heathrow.”
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Judges told to beef up sentences for flouting court orders
Courts are being urged to impose tougher sentences on criminals who flout court orders – with sex offenders and stalkers being targeted. Those responsible for flagrant, serious or persistent breaches that cause very serious harm or distress will face the toughest punishments. Draft sentencing guidelines have been drawn up because of concern that judges and magistrates are sometimes imposing far lower penalties than the law allows. The reason is that not all kinds of breaches of orders are covered by guidelines and if they are, they may not deal with offences “at the upper end of seriousness”, the Sentencing Council said. For the first time, judges must take account of the risk of harm to the public caused by breach of an order, as well as any actual harm caused, the council proposes. An offender subject to an order banning that person from being in the presence of a child might breach an order by building a relationship with a child or a family with the intention of committing further sexual offences. “Even if there is no offence committed, it is highly likely that distress would be caused to family members who had unknowingly exposed their child to a risk of sexual harm, and to the child who may become aware of being the subject of potential harm,” the council said in a consultation paper released yesterday. Orders covered in the proposed guidelines include sexual harm prevention orders, which are used to place restrictions on people convicted of sex offences, and restraining orders, which can be imposed in stalking cases. The Sentencing Council, which advises courts, is consulting on proposals for handling cases of non-compliance with several types of court order.
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Medical report quality plummets despite bespoke scheme
The quality of medical reports used in personal injury cases has significantly deteriorated in the wake of the introduction of an independent system of sourcing experts, the solicitors’ watchdog claimed yesterday. Fewer than 5 per cent of respondents to a survey conducted by the Solicitors Regulation Authority said that the quality of reports had improved since the creation of MedCo, which was launched as part of the Ministry of Justice’s pre-action protocol for low value personal injury claims in road accidents. The regulator’s researchers found that 12 per cent of law firms responding said that frivolous cases were “prevalent” in the market, with the cause attributed to low quality medical reports. The survey also revealed that recently imposed restrictions on low-value claims have forced law firms to diversify away from road accident work. That has resulted in the growth of work around clinical negligence, occupational disease and noise-induced hearing loss. That diversification has in turn triggered its own problems. The SRA said that “several respondents” pointed to “a lack of knowledge within law firms” around those areas of law. “This could result in poor client service and ill-conceived court proceedings,” warned the regulator, pointing out that since 2012, fewer than one fifth of the 200,000 claims for noise-induced hearing loss have been eligible for compensation. Insurance company lawyers voiced concern about a large scale move into hearing loss and clinical negligence claims. The Forum of Insurance Lawyers warned: “The issue of dishonest claims is still a major issue. The report of the Insurance Fraud Taskforce highlighted the role that the SRA has in tackling fraud and FOIL hopes that the thematic review will provide impetus for the action required.”
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Intellectual property accounts for 40% of Europe’s jobs
Nearly 40 per cent of jobs in Europe are with businesses that involve a higher than average component of intellectual property, patent office officials have claimed. The study found that more than 42 per cent of total economic activity in the EU – translating to €5.7 trillion annually – is generated by “intellectual property-intensive industries”. According to a joint report from the European Patent Office and the EU Intellectual Property Office, that means that approximately 38 per cent of all employment in the EU – about 82 million jobs – stems from such industries that have a higher than average use of IP rights. The report also found that average wages in intellectual property-intensive industries were more than 46 per cent higher than those in other industries. Meanwhile, the UK organisation that guards against software piracy yesterday unveiled a scheme designed to encourage whistleblowing. An “incentive payment agreement” drafted by the Federation Against Software Theft aims to encourage employees to report on the unauthorised historic use of its members’ software and services. If a report leads to the successful identification of illegal software use, the federation will pay the whistleblower a reward amounting to 5 per cent of the illegal historic use payment.
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UK law firms predict financial hit from Brexit
Top British law firms are bracing themselves for a slowdown in fortunes over the next financial year – with blame being square apportioned to the electorate’s decision to leave the EU. Some 70 per cent of the top 200 law firms in the UK anticipated that trading conditions for 2016-17 would be tougher than in the previous year. And more than 40 per cent said that the biggest cause of those rocky conditions was Brexit. The findings came in the annual report into the financial health of the biggest firms in the country, conducted by The Lawyer magazine. Lee Ranson, managing partner at Eversheds, the international franchised firm, told the magazine that passporting for the City’s financial institutions was the biggest headache for the City. And as such it “has to be of concern to many law firms”. Apart from Brexit, the firms cited a range of risks threatening top flight legal practice in the UK, including issues around cybercrime and technology failure.
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In Brief
May’s student deportation programme in tatters as legal appeal falls apart – Politics.co.uk Gateley partners sell shares worth £6.4m – Legal Week Leading sports lawyer denies money laundering charges – Law Gazette
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Wheeling out Wheeler, QC, on Brexit
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Never for a moment let it be suggested that Queen’s Counsel provide opinions on anything other than on a without fear or favour basis. However, when the joint parliamentary committee on human rights drafted its list of witnesses to give evidence on the implications of Brexit, perhaps it could have come up with a name that was not quite so personally connected to the Leave cause. Perhaps it could have done, but it has not. Rocking up for today’s hearing will be Marina Wheeler, QC. The One Crown Office Row barrister has impeccable qualifications in the field, but she is also hitched to Boris Johnson, the foreign secretary, who, with Michael Gove, alternated in the driving seat on the Leave battle bus last summer. Of course, it has subsequently been reported that Johnson’s own views on Brexit wavered. More importantly, Wheeler is doubtless her own woman.
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Don’t believe everything you read about Linklaters and diversity
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Poor Linklaters. You don’t hear that type of sentiment in relation to one of London’s magic circle law firms often, but in this case the lawyers seem to be rather hard done by. Palatinate, the newspaper at Durham University, recently carried an exposé on legal profession recruitment in which it claimed that Links had launched a “graduate scheme aimed specifically at white males” as part of its … er … diversity programme. To be fair, the article appeared to be exactly what it was – a satirical piece focusing on the worthwhile attempts by large businesses to get their gender and ethnic balance right, but not always succeeding. And like a lot of university satire, it fell flat on its face. Why Linklaters? Let’s face it, there are more obvious targets in the City of London legal profession that leap to mind. It appears, according to the website Legal Cheek that the firm was targeted purely randomly. In the end, the article was whipped off the site, with the editors and writer coughing up fulsome apologies. Apparently Linklaters was none the wiser about the joke until Legal Cheek informed the partners, who paused for a nanosecond before returning to crack the whip over their timesheet slaves.
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Electoral favours
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The US presidential election is being condemned by Donald Trump as rigged although, beyond conjecture, he has advanced no evidence to support that allegation, muses Gary Slapper. Instances of election malpractice around the world have sometimes included some unusual dramas. In 2012 in Brazil, Carme Cristina Lima – who was running for office in the northern state of Amazonas – was arrested for handing out cocaine with her election leaflets. She lost. Back in Blighty, in 2004, following insistence from her local council to find out who lived in her barn, Brenda Gould duly registered Henry and Sophie Bull. Gould was later convicted at Ely magistrates’ court after it transpired that the Bulls, who had been placed on the electoral roll, were cattle. The sharp exchanges in the US election debates fit with a history of ripostes worldwide by those seeking power. In the 18th century, John Wilkes, the radical thinker, fellow of the Royal Society and high sheriff of Buckinghamshire, was standing for parliament. When he was publicly rebuked by an elector shouting, “I would sooner vote for the devil”, Wilkes replied without pausing: “And what if your friend is not standing? Gary Slapper is global professor at New York University and director of its London campus; Twitter @garyslapper |
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