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The Times

Thursday, March 23 2017

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

Today

  • Lord chief justice attacks Truss over rape evidence reforms
  • Only five money laundering convictions in a decade
  • Supreme Court vindicates watchdog over ‘London Whale’ fine
  • Lawyer research: Brexit will hit corporate profits
  • Pupil barrister wins Times/One Essex Court award for Brexit essay
  • Comment: A judge can't spend your money when you’re dead
  • In the House: Global bank refuses to pay for junior lawyer time
  • Blue Bag diary: 60-year-old white men are ‘bench-blockers’

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

 
Story of the Day

Lord chief justice attacks Truss over rape evidence reforms

Liz Truss came under unprecedented attack from England’s most senior judge yesterday for “wrongly pledging” to introduce reforms to spare alleged rape victims cross-examination at trial.

Lord Thomas of Cwmgiedd (pictured), the lord chief justice, said that the Ministry of Justice had a “complete misunderstanding” of the reforms that were to take effect. He said that they were nothing to do with adult rape victims but to do with children.

From September child witnesses will be spared live cross-examination by giving recorded evidence before the trial. The same facility for alleged victims of adult sexual offences would be piloted.

As reported in The Times, Lord Thomas also castigated Ms Truss for failing to defend judges from attacks when they made their Brexit ruling and said that for the first time he had had to seek police protection. He told the Lords constitution committee: “To my mind, she was completely and absolutely wrong. And I am very disappointed. I can understand how the pressures were on in November but she has taken a position that is, constitutionally, absolutely wrong.”

The embarrassing put-down of the lord chancellor came as Lord Thomas made his last appearance before the committee before he retires this year. On the rape reforms, promoted by Ms Truss this week, he told peers that he had been obliged to write to all judges to explain the ministry’s mistake, which he attributed to a lack of funding and depletion of expertise and “people who understand”.

“I regret to say that we had to correct a serious misapprehension that had arisen as a result of what the ministry said at the end of last week about the roll-out, and the way we were proceeding with prerecorded evidence.

“They misunderstood the thing completely. And so yesterday I had to write to all the judges to explain that, unfortunately, what the ministry had said was wrong."

 
 
News Round Up
Only five money laundering convictions in a decade

Only five people have been convicted of beefed-up money laundering offences since the regime was overhauled a decade ago, it was revealed yesterday.

The revelation comes as police and financial regulators are examining claims that Britain’s biggest high street banks were involved in a multibillion-dollar Russian money laundering scheme that threatens to engulf the City in scandal.

This morning, The Times reports on the results of a Freedom of Information Act request by the business crime team at the London law firm Howard Kennedy only five individuals have been found guilty under the Money Laundering Regulations 2007.

No convictions were secured under the legislation until 2012 when one individual was found guilty. Since then there have been five more proceedings and four convictions.

The regulations apply to several sectors including financial and credit institutions, accountants, casinos, lawyers and estate agents. They require those regulated to put in place robust anti-laundering policies and procedures.

The regulation created more than 20 offences, all of which are considered serious enough to be tried in a crown court with a maximum sentence of two years.

“It is not entirely clear why there have been so few prosecutions and the figures don’t reveal which sector the offenders came from,” Ian Ryan, a partner at the firm, said. “However, given how often we hear that London is a haven for money launderers it seems that law enforcement is missing a trick here and not using a weapon in its arsenal in the fight against global crime.”

Supreme Court vindicates watchdog over ‘London Whale’ fine

Britain’s financial watchdog has overturned a ruling that it unfairly identified an individual banker when it fined JP Morgan Chase more than £137 million as part of the “London Whale” scandal.

The bank’s international chief investment officer had argued that the watchdog, the Financial Conduct Authority (FCA), had referred to a part of the bank’s management structure which identified him. The executive maintained that as a result he should have been given third-party rights in accordance with the Financial Services and Markets Act 2000. This would have given him the opportunity to respond to the FCA’s allegations before it issued its public notice.

The executive had managed Bruno Iksil, the trader nicknamed the London Whale for the size of his trades. The case resulted in $6.2 billion losses for the bank and fines on both sides of the Atlantic.

The Supreme Court yesterday backed an appeal by the FCA and, by a majority of four to one, overturned a Court of Appeal ruling. Lawyers said that the ruling would come as a relief to FCA bosses. “The overturned Court of Appeal decision exposed the tension between the FCA’s desire to quickly settle regulatory investigations into financial institutions and its public criticism of the employees of those companies necessitated by those settlements,” Chris Dyke, a lawyer at London law firm Corker Binning, said.

“The time and resources required to deal with the interventions and representations of a potentially very large pool of individuals would have been a very heavy burden for the FCA and could have significantly slowed the speed of regulatory enforcement,” he said.

Alison Geary, a lawyer in the London office of US law firm WilmerHale, said that the Supreme Court’s judgment “required a balancing act between the need for the FCA to move forward with its investigations and the rights of those individuals who are ultimately the subject of such investigations. Here the scales have been tipped firmly in favour of the FCA.”

On the majority side of the ruling were Lord Justice Neuberger, the court’s president, and Lords Sumption, Mance and Hodge; Lord Wilson dissented on the ground that the majority’s approach did not strike a fair balance between individual reputation and regulatory efficiency.

Lawyer research: Brexit will hit corporate profits

More than three quarters of the UK’s multinational businesses anticipate that Britain’s withdrawal from the EU will damage their profits, a survey from a transatlantic law firm revealed yesterday.

The survey of more than 200 senior executives at multinational corporations found that they were pessimistic over the five-year outlook after Brexit. Of all the businesses surveyed, about two thirds forecast that Brexit would negatively affect their profits. About one in six said that they expected the drop in profits to be more than 5 per cent.

According to the research from the Anglo-US firm Hogan Lovells, more than half of British businesses support some form of transitional agreement with the remaining EU bloc that would allow for a “soft Brexit”. However, the survey still found a significant number of businesses on both sides of the channel adopting a “let's get on with it” attitude, despite the concerns and uncertainty they had expressed about the impact.

The researchers found that companies in the US were more positive about potential trade agreements resulting from Brexit than other non-EU countries. Still, only a third of US companies predicted that Brexit would be positive for their business. Slightly more than a quarter of US companies described Brexit as a threat to their profits.

Pupil barrister wins Times-One Essex Court law award for Brexit essay

A 25-year-old pupil barrister has won first prize at this year’s Times-One Essex Court Law Awards for her essay on whether MPs should be able to overrule the Brexit referendum result.

Genevieve Woods -- a pupil at Three Raymond Buildings chambers in Gray’s Inn, who aims to practise human rights and public law when she qualifies -- picked up a first prize cheque for £3,500.

The 200-plus entries for this year's competition were judged by a panel headed by Lord Reid, Supreme Court justice and including Lord Grabiner, QC, head of One Essex Court chambers; John Witherow, editor of The Times and Derek Spitz, a barrister at OEC.

In her winning essay, she argued that “it was parliament which decided to subject itself to EU law in 1972, and parliament has always had the power to repeal that legislation. Whether to do so is a choice that cannot be forced upon it by a referendum or subverted by a desperate executive.”

Ms Woods told The Brief that she aspired to become a lawyer “because I believe that justice is the foundation of peace, on both an international and an individual level”.

The pupil barrister, who is applying for a placement at the International Criminal Court in The Hague, added that “good lawyers don’t just interpret the law, but also shape it, and, in a divided society, the law can be used to ensure equality and protect values. I want to be part of that process, to strive for fairness and help those who need an advocate in adversity.”

The second place award of £2,500 went to Leo Kirby, a 23-year-old student at Fitzwilliam College, Cambridge University, who has also studied at Stanford University in California.

Third place -- worth £1,500 -- went to Yuan Yi Zhu, a 23-year-old Oxford University student.

The three runners up were: Dominic Behar, 24, a student at the Bloomsbury branch of the University of Law in London; James Kirby, 28, a student at the City branch of the University of London; and Krishan Nadesan, a 24-year-old trainee at Clifford Chance, one of London’s five international “magic circle” law firms. The were awarded £1,000 each.

  • The awards were to have been presented at a dinner in Whitehall last night, which was cancelled because of the Westminster attacks.
In Brief

In today’s Times Law …

Elsewhere …

  • Millionaires go to court over parking space -- The Times
  • Thames Water fined £20m after flooding river with sewage -- The Times
  • Welsh law officer vows to defend 'integrity' of devolved justice – Law Gazette
  • Lawyer for Russian whistleblower’s family falls from window – Wall Street Journal
  • Judge who blocked Trump travel ban gets police protection – Hawaii News
  • Germany to officially pardon 50,000 gay men convicted under Nazi-era law criminalising homosexuality – The Independent
 
 
 
Byline
Comment

A judge can't spend your money when you’re dead James Aspden

In 2015 the Court of Appeal decided to award almost a third of Melita Jackson’s estate to her estranged daughter, Heather Ilott, despite heartfelt pleas to Mrs Jackson’s executors to abide by her will and leave most of her estate to three animal charities.

The Ilott case touched a nerve for those who were worried at how wishes expressed in a will could be overturned. Perhaps this explains the outpouring of relief that followed the Supreme Court’s ruling last week that the Court of Appeal got it wrong.

The case brought into focus the tension between what we do while we are alive, and what is expected of us when we die.

We can, if we want to, make like George Best and spend our money “on booze, birds and fast cars” — and squander the rest. There is no voice in our ear reminding us that we are spending our children’s inheritance — and if there is we can ignore it.

Indeed, what you propose to do with your money may be more worthwhile than supporting consumer culture. Perhaps you want to make a large donation to charity, conservation, or a local hospice. Are you not free to do that with the money you have built up during your lifetime?

On each occasion that the Ilott case has been in the news, a spread of views has emerged. Some people feel that charity begins at home; others feel that inherited wealth is wrong. Some feel that inheritance should depend on how a would-be beneficiary has behaved; others think that being a blood relative is reason enough to inherit. Some even think your choice of charity should matter — that some are more worthwhile than others.

There may be a debate to be had about this — indeed Lady Hale invited it in her additional judgment in Ilott — but before the debate, there is a more fundamental question: should we, as a society, even be trying to agree on a single set of rules to decide what we must do with our property when we die?

Or should we stick with the principle that this is something for each of us to decide according to our own beliefs and values — even if that means allowing people to take decisions we find difficult to understand, or that seem wrong?

For now, the answer is that we are entitled to make that choice. A judge might not have done with their money what you have decided to do with yours, but that does not mean that they may overturn your wishes.

As has been the case for almost 80 years, the court can still carve out a portion of your estate for a child, your other half, or someone who was financially dependent on you, but the Supreme Court’s ruling in Ilott has confirmed that this is as far as it goes — and that your wishes do matter.

James Aspden, a partner at Wilsons Solicitors, acted for the three animal charities in the Supreme Court ruling on Ilott v Mitson

 
 
Tweet of the Day

My favourite instructions from many years ago. In full: " Counsel is instructed to wing it on this one".

John Cooper @John_Cooper_QC

 
 
Blue Bag

60-year-old white men are ‘bench-blockers’

It may be 18 months since Lord Sumption suggested that it will be another half century before there is gender parity in the UK’s senior judiciary, but his controversial remarks are still causing ripples.

They washed up most recently at conference on judicial diversity held in the plush lecture theatre at City of London law firm Simmons & Simmons. Sumption took a lot of heat at the time of his remarks, but several high profile women lawyers have agreed with him since.

The latest was Karon Monaghan, QC, a deputy High Court judge as well as a tenant at Matrix Chambers in Gray’s Inn. She told the event, organised by the London Solicitors Litigation Association and the campaigning group Justice, that she reluctantly agreed with the flamboyant Supreme Court judge.

However, she claimed that the Supreme Court “could be half filled by women if they didn’t just look for people over 60 from the bar”.

Barrister judges don’t do their paperwork

On the same panel, Mr Justice Hickinbottom, only the fourth solicitor High Court judge and second solicitor Court of Appeal judge, made the case for more from his branch of the profession to apply for bench positions.

“Solicitors bring a different skill set to the party,” the judge, who was a partner at McKenna & Co (as was) before joining the ranks of the senior judiciary, said. He pointed out that changes to judicial practice, with more case management and written decisions. meant a solicitor’s skill set “qualifies them better than barristers”.

“If you go to any court where a barrister has been sitting you will see how much box-work is left,” he said wryly.

 
 
In The House

Global bank refuses to pay for junior lawyer time

One of the world’s biggest banks has shocked the legal profession by announcing that it will not pay for work done by trainees and even newly-qualified lawyers at its panel law firms.

The groundbreaking move from Deutsche Bank came in the wake of the business’s latest panel review, which saw leading UK and US firms reappointed.

According to a report on the website Legal Week, the top-ten global bank is the first time a financial institution in Europe has issued an edict that it will not pay for time allocated to trainee or junior lawyers.

It is understood that all five London “magic circle” players – Allen & Overy, Clifford Chance, Freshfields Bruckhaus Deringer, Linklaters and Slaughter and May – are on the bank’s panel along with the English firms Simmons & Simmons and Ashurst, and the transatlantic practice Hogan Lovells. Two US firms — Latham & Watkins and White & Case — are also believed to be on the list.

One unidentified City partner told the website that the bank’s new rule regarding trainee and junior lawyers “has annoyed a lot of people”. The lawyer went on to describe Deutsche’s latest panel tendering process as “more aggressive” than it had been in the past.

 
 
Quote of the Day

“To … say that … we should pull out of that post-World War II settlement which is the [ECHR] … that’s a very radical departure from previous policy. We don’t think that’s a departure that’s supported by the Conservative party and we think it will be incredibly controversial if it goes into the [2020] manifesto. That’s the next big fight …”