Problems viewing this? Click to view in your browser
The Times

Friday, April 7 2017

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

Today

  • Truss is ‘at risk' in summer reshuffle
  • Black judge labels disciplinary ruling as ‘victimisation’
  • Father loses Supreme Court battle over term-time holiday
  • Libor trader could appeal after two colleagues acquitted
  • Firm still practising after landmark pensions conviction
  • Divorce with ‘stratospheric’ costs in £64m settlement
  • ‘Chemsex’ drug barrister suspended for three years
  • Comment: Panama Papers a year on – lawyers as problem and solution
  • The Churn: Ex-Bar complaints guru to be top NHS watchdog
  • Blue Bag diary: What’s three years to an Ivy League law prof …

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

 
Story of the Day

Truss is ‘at risk' in summer reshuffle’

Ministers have identified Liz Truss as the most at risk in a cabinet reshuffle later this year after a series of clashes with senior judges has undermined their confidence in her.

The lord chancellor faces a widening rift with the leading judges with one saying relations had deteriorated to such a point that the justice secretary "can't recover," adding: "no-one will forgive​ her."​ The views of judges are fuelled by anger in some quarters that she has effectively blocked their candidate, Sir Brian Leveson, from becoming the next lord chief justice.

In a fresh trauma, the Commons’ justice committee said that it had concerns about how Truss’s prison reforms — described as "the biggest overhaul in a generation" — would work.

The views from the bench are fuelled by anger in some quarters that she has effectively blocked the judges' candidate, Sir Brian Leveson, from becoming the next lord chief justice. The president of the Queen’s Bench Division was the frontrunner for the most powerful judicial post in England and Wales when Lord Thomas of Cwmgiedd steps down this year.

But a recent advertisement for the post stipulates that candidates must serve for four years, which prevents Sir Brian from applying because he turns 68 in June and will have to stand down at the judicial retirement age of 70. "Where Truss really went wrong is doing over Leveson. That has made the judges very angry indeed," said one well-placed Whitehall figure.

However, judges and lawyers said yesterday that this was only one blot on Truss's copybook — and not the most serious. Lord Grabiner, QC, of One Essex Court, said that the real concern was that Truss had not stood up for the judiciary and the rule of law during the febrile debate around court challenges to the Brexit process.

"Relations are not beyond repair but the judges' position is that the rule of law needs to be protected forcefully and she has to show she is prepared to do that," Lord Grabiner said.

Others argue that Truss’s biggest blunder was her announcement of a national scheme of reforms for rape trials, involving pre-recorded evidence, when judges had only endorsed a pilot.

 
 
News Round Up
Black judge labels disciplinary ruling as ‘victimisation’

A prominent black judge has accused the lord chancellor and the lord chief justice of supporting a misconduct ruling that he describes as a “deliberate act of discrimination and victimisation”.

Liz Truss, the lord chancellor and justice secretary, and Lord Thomas of Cwmgiedd yesterday backed an earlier ruling against Peter Herbert (pictured), a crown court judge who also sits in immigration and employment tribunals.

In January, a disciplinary panel of the Judicial Conduct Investigations Office found that Herbert, who has been a part-time judge for 20 years, had made “inappropriate” comments at a 2015 rally in London in support of the discredited mayor of Tower Hamlets, Lutfur Rahman.

At the rally Herbert criticised a ruling by the Electoral Commission that Rahman’s election as mayor of the East End borough was void. The disciplinary panel found that the judge’s comments had “put the reputation of the judiciary at risk”, which amounted to misconduct.

In a statement yesterday, Truss and Lord Thomas agreed with the disciplinary ruling and confirmed that they had “written to Herbert with formal advice regarding his future conduct as a fee-paid judge”.

But Herbert has vowed to fight the disciplinary ruling in the courts. In a letter to Lord Thomas, which has been seen by The Times, the judge said: “I fundamentally disagree that what I said posed any risk to the reputation of the judiciary.”

He accused the lord chief justice and Truss of supporting disciplinary action based on “a pattern of differential treatment based on my race as well as victimisation”.

Herbert, who is also the long-standing chairman of the Society of Black Lawyers, told Lord Thomas that his support for the disciplinary decision was a “breach of the judicial equality and diversity policy that specifically prohibits bullying and harassment”.

Lord Thomas and Truss informed Herbert that he could appeal against the decision to the judicial appointments and conduct ombudsman. However, Herbert indicated that he was considering challenging the decision in the courts. “I will take whatever legal action I deem necessary to expose the absence of equal treatment under the law,” he said.

Father loses Supreme Court battle over term-time holiday

Ministers are unlikely to rush to allow parents greater flexibility around term-time holidays after the Supreme Court ruled that those who remove their children from school for even half a day could be prosecuted and fined.

Lawyers predicted that the government would not have the appetite to bring forward legislation, despite the ruling striking at the heart of middle-class behaviour as parents attempt to avoid expensive peak travel times.

Five justices – led by the court’s president, Lord Neuberger of Abbotsbury – unanimously backed the Isle of Wight council in its appeal against previous rulings supporting Jon Platt, reports The Times. Platt had refused to pay a £60 fine after he took his daughter on a holiday, causing her to miss seven school days in 2015. The lower courts had found in favour of the father and his argument that his daughter had complied with the school’s rules that she “regularly” attend. The daughter had an attendance record of more than 90 per cent.

But the Supreme Court justices took a far less lenient approach. They ordered that the case should return to the magistrates’ court, where Platt should be found guilty of failing to ensure his child attended school regularly. However, the father said outside the court that he had no intention of pleading guilty.

Ben Collingwood, who works in the education team at the Barlow Robbins law firm in Surrey, predicted that the ruling would not trigger a ministerial call for parliamentary draftsmen.

“It seems unlikely that this will result in the government identifying a need to legislate now to allow more flexibility,” Collingwood said. “Head teachers will retain a degree of discretion over whether to authorise absence or issue a fine on a case-by-case basis, depending on whether there is good reason or an emergency which may necessitate the absence.”

Sarah Woosey, a solicitor at Irwin Mitchell, said that the justices were “clearly concerned about the possible disruption to schools and to the education of children generally if this was left as a matter for individual parents alone”.

But Simon Burge, a partner at Blake Morgan, spoke for “cash-strapped” parents across the country when he said that for those “with school-age children struggling to pay the exorbitant prices often imposed by tour operators, the decision to overturn the earlier ruling by the High Court comes as unwelcome news”.

Libor trader could appeal after two colleagues acquitted

Lawyers for Jonathan Mathew, a Barclays trader who was convicted last July of manipulating the Libor rate, are considering an appeal after two other defendants were acquitted yesterday.

A jury at Southwark crown court in London found Stylianos Contogoulas and Ryan Reich not guilty of conspiracy to defraud. The unanimous verdict came after a jury last year failed to reach a decision on the two while convicting Mathew and two others.

“We have always believed that our client … was entitled to the same not guilty verdict that we are pleased to see returned today,” Matthew Frankland, a partner at Byrne and Partners, the London law firm that acted for Mathew, said.

Frankland said that “we always felt that the ultimate verdict of his jury was wrong”, going on to claim that “for what it is worth that view has been expressed to us privately and publicly by many impartial observers of the trial”.

The lawyer said that the retrial exposed fresh developments. “Not least … the discovery that the Serious Fraud Office’s experts apparently and fundamentally failed to understand the Libor setting process,” he said.

Frankland said the firm was “actively considering whether the recent disclosure, which was not provided to us at trial, may now be reflected in a renewed appeal”.

Other lawyers also welcomed the verdict. Jonathan Pickworth, a partner at the London office of the US law firm White & Case, said it showed “that British juries are perfectly capable of seeing through media scapegoating of bankers”.

Pickworth described the verdict as “another lightning-quick acquittal following a lengthy trial, which tells us all we need to know about what the jury thought of the prosecution case”.

He added: “No doubt there will be a post mortem at the SFO. There is going to need to be a lot of thought about the merit of pursuing other benchmark trials, such as Euribor.”

Law firm still practising after landmark pensions conviction

Regulators are “gathering evidence” to bring possible disciplinary proceedings after the first criminal conviction for breaching pensions rules involved a law firm and a solicitor.

Ashley Wilson Solicitors, based in London, and Tony Wilson, its senior partner, were together fined more than £16,000, The Times reported yesterday.

Wilson and the firm were found to have failed to provide required documents to the Pensions Regulator despite officials making repeated demands for almost nine months. The documents related to a property linked to an individual who was involved in a fraud investigation, and regulators said that neither Wilson nor the firm generally was connected with the investigation and there was no suggestion that their staff had committed an offence.

The convictions are seen as evidence of a much tougher enforcement stance by the watchdog, which was criticised last year for its approach before the BHS debacle.

And yesterday, the Solicitors Regulation Authority confirmed that it was actively assessing whether the case should be referred to the professional disciplinary tribunal. However, an SRA spokesman said the regulator had no immediate plans to intervene in the practice because it did not automatically make that move in cases involving criminal convictions of solicitors.

The spokesman said that there were some 1,800 solicitors with criminal convictions still practising in England and Wales. Most were guilty of minor offences, a many involving motoring convictions.

In cases where there was no obvious risk to the public, said the spokesman, the SRA did not immediately intervene.

  • The SRA has clarified the recent fine levied on Clyde & Co, the City of London law firm that was found to have breached money-laundering regulations. The firm itself was fined £50,000 in addition to three individual partners being fined £10,000 each, bringing the total penalty to £80,000. Earlier reports suggested that the total fine was £50,000.
Divorce with ‘stratospheric’ costs in £64m settlement

A 78-year-old Laura Ashley boss has been ordered to pay his 70-year-old ex-wife £64 million in one of the biggest divorce settlements in the UK courts.

Pauline Chai, a former beauty queen, wanted about £100 million from her former husband Khoo Kay Peng on the breakdown of their 42-year marriage, saying that she had been a “traditional” wife and mother and therefore deserved half of what she claimed was an asset pot of £205 million.

Khoo, the non-executive chairman of Laura Ashley Holdings, said Chai should receive about £9 million, arguing that he had made a special contribution to generating the couple’s wealth. His true assets, he said, were worth £66 million.

Mr Justice Bodey’s ruling on the £64 million package, consisting of cash and property, came after a trial in the family division of the High Court in London that ended years of bitterly fought litigation.

The pair — who are both from Malaysia and were married in 1970 and have five children — have spent what one judge called the “stratospheric” legal costs of more than £6 million between them on lawyers since splitting.

‘Chemsex’ drug barrister suspended for three years

A barrister who admitted supplying drugs that killed his teenage boyfriend during a sex party has been suspended from practice for three years.

Henry Hendron, 36, was sentenced at the Old Bailey a year ago to 140 hours of unpaid work after being convicted of supplying £1,000 of “chemsex” drugs that caused the death of Miguel Jimenez, 18, during a party at the barrister’s flat in the Temple.

Yesterday, the Bar Standards Board confirmed his suspension by an independent disciplinary tribunal, which heard the case last Wednesday. The tribunal also fined Hendron £2,000 for two charges relating to administrative failings in his role as head of Strand Chambers in London.

Those charges related to Hendron failing to ensure that fees earned by a particular barrister working in the chambers were properly and efficiently administered, and failing to give proper notice to a barrister when asking that barrister to leave the chambers.

Sara Jagger, the board’s director of professional conduct, said: “A conviction for supplying illegal drugs is a serious matter. In this case, it had tragic consequences. Hendron failed to meet one of the core duties of a barrister, which is to uphold public trust and confidence. The suspension imposed by the tribunal reflects this.”

In Brief

High court judge breaks with tradition to allow lawyer to answer phone – The Guardian

Appeal judges quash conviction of school worker who hanged himself while on trial for sex offences – Daily Mirror

Britain's first crowdfunded private prosecution sees woman cleared of killing cyclist – Daily Mail

 
 
 
Byline
Comment

Panama Papers a year on – lawyers as problem and solution Daniel Hall

History’s biggest ever data leak was exposed a year ago in the form of the “Panama Papers”, lifting the lid on the murky world of offshore tax regimes – usually sun-kissed islands where the rich, famous and infamous hide wealth.

Although the public may have been alarmed by its scale, the methods used were well worn – Mossack Fonseca, the Panamanian law firm at the centre of the operation, was not re-inventing the wheel.

Secrets exposed, the tough question to be asked a year later is: what has changed for the better and were the revelations worth it?

There has been undoubted positive progress. London is more than 5,000 miles from Panama City, but the gaze of transparency has been cast here, too. The Criminal Finances Bill, introduced in parliament last October, is designed to stop London being used as a soft-target safe haven for kleptocrats and corrupt officials.

Targeting property used by criminals seeking a safe haven is an excellent step in the right direction. Too often the UK has had to deal with former ministers of corrupt governments who earned little on paper but arrived in the UK to stay in grand homes, and with seemingly bottomless bank accounts.

Make no mistake, these are much-needed and long-overdue measures. They must be used. But there is no silver bullet. Progress is slower than ideal and it is only a matter of time before other offshore centres come under scrutiny.

The Panama Papers have been viewed as such a serious situation globally that the European parliament launched a special committee to investigate the scale and root of the problem. It is closely examining the role of bankers, accountants and lawyers in this international merry-go-round.

It is little short of wilful blindness when professionals do not pose questions to clients over the source of wealth or their true intentions when setting up offshore structures.

Arguably, the Panama Papers saga failed to shake toughened professionals to the core – and therefore, as well as legislative powers, we need a fresh approach to solving the problem exposed so robustly a year ago.

Professionals all around the world need to understand anti-money laundering procedures and that the onus is on them to act properly. And they need to feel motivated to stop hiding behind it as a tick-box exercise.

Crucially, there needs to be tougher sanctions imposed internationally on those who turn a blind eye to current rules. Lawyers and other advisers need to be in the crosshairs. All professionals have a role to play in this.

Only then can we talk about the Panama Papers having a positive influence on flushing out the corrupt.

Daniel Hall is the asset recovery director at Burford Capital, a litigation funding business

 
 
Tweet of the Day

The form to fill in for "support for a child conceived without your consent" The banality of evil made manifest. https://t.co/WWqyiUExRC

Steve Peers @StevePeers

 
 
Blue Bag

What’s three years to an Ivy League law prof …

Further evidence – if it were needed – to confirm that Harvard law professors ain’t quite as clever as what they might think they are.

Laurence Tribe is a big shot at the cream of the Ivy League crop. He has guided students through the complexities of US constitutional law at the university since 1968, and bears the title “university professor”, which Harvard has only doled out 68 times in its 350-plus-year history.

But Tribe clearly could do with sitting in on a few lectures from colleagues in the 20th-century history department. The éminence grise of American legal academia triggered a social media flurry yesterday when he tweeted a statement aiming to commemorate the US’s decision to join battle in the First World War.

“100 years ago today we declared war on Germany, starting World War I,” intoned Tribe.

Suffice to say that several of Tribe’s 91,000-odd followers gently reminded the 75-year-old prof that the Great War actually kicked off in 1914, with Britain and France going hammer and tongs with Germany for a full three years before the Americans mustered their troops.

 
 
The Churn

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

Ex-Bar complaints guru takes top role as NHS watchdog

A former Bar complaints watchdog is to take over as the parliamentary and health service ombudsman, it was announced yesterday.

Rob Behrens will also become chairman of the organisation, which makes final decisions on complaints that have not been resolved by the NHS in England as well as unresolved complaints involving government departments.

The former civil servant was appointed as the Bar Complaints Commissioner in 2006 and he was a member of the Bar Standards Board from 2012.

Meanwhile, back in lawyer-land, a fresh management team is in place at the London firm Sharpe Pritchard.

Alastair Lewis takes the reins as senior partner, Julia Rudin becomes managing partner and Roseanne Serrelli bags the curiously titled role of strategy partner. The top-tier shake-up was triggered by the retirement of Ashley Badcock as senior partner. He joined the firm 47 years ago, becoming a partner three years later. Badcock spent 22 years in the senior partner chair.

In addition, the firm has bumped up two associates to its partnership: Catherine Newman and Jane Crees.

And over to the Bar, where Rupert Reed, QC, is the latest silk to make a relatively rare move between chambers. He joins Serle Court in Lincoln’s Inn, having left Wilberforce Chambers.

 
 
Closing Statement

Beware crims bearing gifts

Looking back on gifts from grateful clients, reminisces a misty-eyed James Morton, I did have some cigars from a man I kept out of prison.

His “MO” was to go into a tobacconist shop and ask the assistant to retrieve something from a high shelf. While the man was up the ladder he would raid the till.
He later came to the office dona ferentes, assuring me the cigars had been bought.

Later the receptionist told me she could not find the petty cash box anywhere. “This nice old man asked me to look something up in the phone book which was on the top of the filing cabinet,” she explained.

James Morton is a former criminal law solicitor and now author