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The Times

Tuesday, May 16 2017

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


  • Official Secrets Act reform ‘threat’
  • Tory workers’ rights ‘doomed if tribunal fees stay’
  • Solicitors ‘better than barristers’ in youth court
  • Martyn Day ‘bribed Iraq fixers’ to keep cases flowing
  • London leads global effort to strengthen commercial law
  • Bar leaders back Polish judges facing crackdown
  • Comment: Without legal aid prisoners cannot get justice
  • Blue Bag diary: That’s a picture of Richard, officer
  • More Blue Bag: Sir Henry Brooke gets gonged by Albania

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

Story of the Day

Secrets act reform ‘threat’ to whistleblowers and journalists

Whistleblowers and journalists could be imprisoned for revealing documents that can be obtained through freedom of information requests, campaigners have warned.

The Law Commission is proposing to make it easier to secure convictions under the Official Secrets Act 1989 by weakening the test for proving an offence, the Campaign for Freedom of Information and the rights group Article 19 said.

Under that legislation, some offences require proof that a disclosure was likely to damage defence, international relations or law enforcement, or fall into a class of information likely to damage the security services’ work. The commission is considering how to reform the act for the digital age.

The commission has said that the current test – of assessing whether leaked material is “likely to damage” – prevents prosecutions being brought because proving this requires more damaging information to be revealed in court. It proposes that the harm test to be reduced from “likely” to cause harm to “capable” of causing harm.

The campaign groups said that the proposals would make it easier to secure convictions by weakening the test for proving an offence and might even criminalise passing on information that could be discovered using freedom of information requests.

The Freedom of Information Act exempts information about defence, international relations and law enforcement from disclosure using the threshold of “likely to harm”. Leaking information which is capable of but very unlikely to cause harm would therefore potentially become an offence, the campaigners said.

Maurice Frankel, director of the Campaign for Freedom of Information, said: “These proposals are not only oppressive but unworkable.” He predicted they “would deter officials from discussing information that has lawfully been made public. It will set the FoI Act and the Official Secrets Act on a collision course.”

Frankel criticised the law commissioners from reaching beyond their remit. “It is not the Law Commission’s job to make an ass of the law but that’s what its proposals would do,” he said.

The consultation on how to reform the Official Secrets Acts was headed by the law commissioner, David Ormerod, QC. The initiative for the review came from the Cabinet Office in 2015. Ormerod has said that he relished the opportunity to update “archaic” legislation “that was ripe for reform” in the digital age.

News Round Up
Tory workers’ rights plan ‘doomed' if tribunal fees stay

Theresa May’s plans to beef up workers’ rights are doomed unless tribunal fees are lifted to make it easier for employees to bring claims, lawyers warned.

May’s predecessor as prime minister, David Cameron, led a government that imposed what many employment specialists view as a system of tribunal fees that makes it all but impossible for many workers to access justice. Lawyers point to figures showing that since the fees were imposed four years ago, the number of employment tribunal claims has fallen by 70 per cent.

“Unless action is taken to make bringing a claim more realistic,” said Tim Goodwin, a lawyer at the law firm Winckworth Sherwood, “I can’t see that some of these new rights, such as unpaid leave to care for a relative, will add much because the reality is that, unless workers can enforce their rights, they will not be observed.”

Others suggested that taking up the new rights might not be as easy the prime minister suggested. “The statutory right to take up to a year off to care for a disabled dependant before being able to return to a guaranteed role does, in theory, extend existing rights and create some flexibility for the vast number of workers who have caring responsibilities,” Leon Deakin, a partner at Coffin Mew Solicitors, said.

But, he cautioned, “the time taken will be unpaid and therefore I suspect the take-up will not be significant and certainly not likely to last for extended periods of time”.

Crowley Woodford, a partner at the City of London law firm Ashurst, predicted that businesses would also greet May’s proposals with scepticism. “Employers already consider that they legally have one hand tied behind their back when dealing with their employees,” he said. “They will be concerned that any further material extension of employee rights in the workplace will inevitably adversely affect their flexibility to respond to the challenges and opportunities presented by Brexit."

Solicitor-advocates better than barristers in youth court, says QC

Junior barristers “cut their teeth” in the youth courts and as a result they perform far worse than experienced solicitor-advocates, a leading criminal law QC has claimed.

Angela Rafferty issued some tough words to her junior colleagues when she told a conference on youth justice last week: “The Bar often aren’t very good in the youth court – specialist solicitor-advocates are better.”

Rafferty, the vice-chairman of the Criminal Bar Association and a tenant at Red Lion Chambers in London, added to the rumbling row between barristers and solicitor-advocates. Senior barristers routinely claim that their solicitor-advocate counterparts are inferior courtroom lawyers. Rafferty’s comments will confirm some suspicions that the jibes are borne more from commercial fears as the Bar feels increasing competition from the growing cadre of solicitor-advocates.

However, the Solicitors Journal reports that Sue Green, a district judge at Camberwell Green court in London, argued there were problems across the legal profession. “There are poor advocates on both sides who appear in front of me,” she told the conference.

Martyn Day ‘bribed’ Iraq fixers to keep cases flowing, tribunal told

Martyn Day, who led claims that British soldiers tortured and murdered Iraqi civilians authorised “bribe payments” to fixers to keep the cases flowing, prosecutors told a disciplinary tribunal yesterday.

The solicitor denied that he and his firm, Leigh Day, made improper payments, despite acknowledging that the word “bribe” was used several times in email correspondence between him and one of his partners. Day told the hearing in London that he dismissed the use of the word “bribe” in an email from Sapna Malik because he thought she was “fed up”.

Leigh Day pursued damages claims against the Ministry of Defence over the alleged mistreatment and unlawful killing of captives at Camp Abu Naji in Iraq following the Battle of Danny Boy in May 2004. In December 2014 the al-Sweady inquiry dismissed the allegations as false.

Day and Malik each face 16 misconduct charges, while their fellow solicitor Anna Crowther faces four, including an allegation of destroying a key document, and the firm faces 11 charges. All deny the charges.

Giving evidence to the Solicitors Disciplinary Tribunal for a fifth day, Day was questioned over the “work leave” payments, which the Solicitors Regulation Authority (SRA) alleges were improper. Timothy Dutton, QC, for the SRA, told the tribunal that Leigh Day’s accounting records showed there had been “work leave” payments to 10 Iraqi police officers. They also showed Leigh Day had paid $2,715 to seven al-Sweady clients and another 10 payments of $400 to individuals, five of whom were Iraqi police officers.

The barrister told the tribunal that Malik, in an email sent to Day in October 2008, detailed expenses for the case. In that correspondence, she mentioned an allowance of $75 a day for some clients that another solicitor, Phil Shiner, had agreed with the lead claimant, Khuder al-Sweady.

Malik wrote: “Khuder has Phil, us round his little finger re money.” She went on to say that the firm would probably have to pay daily allowances to “the whole group” and that “Khuder has put in a bill for $3,000 for various expenses … Again, to keep things smooth, I guess we have to agree to pay this”.

Shiner was stuck off for dishonesty and breaching solicitor practice rules earlier this year.

Day told the tribunal he added he had been busy with other cases and he had only briefly read the email. "At this stage I was receiving 300 or 400 emails a day,” he said. "The issue of disbursements in relation to costs I absolutely devolved to Sapna.

"When the SRA raised this email I did not remember it in the slightest. I have no recollection of the word bribe at all ... It was a total surprise to me the word bribe was in there."

London leads global effort to strengthen commercial law

London’s commercial court is at the heart of an initiative to create multi-national agreement on creating more efficient measure for the mutual recognition and enforcement of judgments.

Yesterday Mr Justice Blair, the head of the English commercial court, and Mr Justice Knowles, launched an initiative “that explains how, under current rules, judgments of one commercial court may most efficiently be enforced in the country of another”. They also signalled greater judicial co-operation among participating jurisdictions. Judges from New York, Delaware, Australia, Singapore, Ireland, Hong Kong, Dubai, Qatar, Abu Dhabi and Bahrain attended a meeting at the Rolls Building in London to discuss the initiative.

The English judges said that a structure would be created “for judges of the commercial court of one country to be able to spend short periods of time as observers in the commercial court of another”. They will also consider issues such as practical arrangements for liaison with other institutions such as arbitral bodies.

Bar leaders back Polish judges facing crackdown

English Bar chiefs backed their counterparts in Poland yesterday by criticising attempts in Warsaw to “weaken the independence” of the judiciary and the legal profession.

Speaking from Warsaw yesterday, Andrew Langdon, QC, the chairman of the Bar Council of England and Wales, told The Brief that he had “given my reassurance to Mikołaj Pietrzak, dean of the Warsaw Bar, that the Bar Council stands in solidarity whenever there are attempts to weaken the independence of the judiciary or that of the legal profession or indeed any other initiative which would diminish the rights of all the people in our countries to have fair and effective access to justice”.

Concern has been building over recent conflicts between judges and the Polish government. A week ago the Judges’ Council of England and Wales highlighted draft legislation in the country that would make it easier for ministers to sack judges.

Langdon was taking part in an English-Polish law conference in Warsaw. He told the event: “Both in the UK and Poland, we have had reasons to be concerned in recent times about the commitment of some of our politicians to upholding all the elements which make up a functioning rule of law system.

“It is important that, as lawyers, we stand up for the rule of law and defend it vigorously. I am proud to say that both the Bar Council and the Warsaw Bar are effective defenders of the rule of law and of the fundamental right of our citizens to benefit from its protections.”

In Brief

Bank litigation soars by 37 per cent in Q1 2017 – The Lawyer

Fraud investigators step up probe over Quindell – Law Gazette

Trump's lawyer defends posting photo of daughter in lingerie – ABC News

Marriage laws are failing vulnerable Muslim women -- The Times


Without legal aid prisoners cannot get justice Kate Maynard

Penal reformers won a landmark judicial review of the legality of the government’s cuts to legal aid for prisoners last month.

Now Liz Truss – or whoever might replace her as lord chancellor after the general election – must find a mechanism to implement the judgment and grant prisoners legal aid in the three areas the court identified. Failing to do so risks a massive tranche of judicial reviews and civil claims by prisoners who go on to suffer.

The court decided that the high bar for systemic unfairness had been met in relation to three of five decision making areas: pre-tariff Parole Board reviews, category A reviews – where prisoners seek a lower risk rating to move out of one of the handful of often remote and austere high security prisons – and placement in close supervision centres.

Lawyers for the Home Office argued that legal aid was only one of several ways to ensure fairness in all the areas under scrutiny by the court and that there were adequate alternative means of keeping vulnerable prisoners effectively engaged in decision-making, such as support from prison officers. The Court of Appeal agreed, but went onto say that the state of prisons “at present” was so bad that the gap left by the cuts to legal aid was not being met.

The government still has a chance to appeal, but the chief fear of prisoners hoping to benefit from this ruling is that when parliament resumes in June new legislation may explicitly override the common law to deprive prisoners of legal representation.

That approach would sink prisons into an even deeper crisis, so it is hoped that MPs understand that legal representation is required for adequate standards of justice, a point Lord Woolf identified as essential following widespread disorder in prisons in the early 1990s. Prison officers can no more deliver adequate legal support in a dispute with the prison service than employers can in an industrial dispute or banks on a misselling claim.

In response to the ruling, the Ministry of Justice might be tempted to extend the exceptional case funding regime that was established to avoid contravention of the European Convention on Human Rights in situations where legal aid is necessary. However, that has proved to be expensive to administer and has controversially helped only a tiny proportion of those who have needed assistance, resulting in further legal aid-related litigation.

Ultimately, no remedy can put right the unfairness sustained over the last three and a half years, during which prisoners have not had access to legal advice. Affected prisoners will expect past decisions to be reviewed and to receive the support that the Court of Appeal recognises that they need in respect of future decisions. It is hoped that the ministry gives the same level of attention to achieving procedural fairness that it has done recently to implementing budget cuts.

Kate Maynard is a partner at the London law firm Hickman and Rose

Tweet of the Day

A little Monday #legalhumor

Nebraska State Bar @nebrbar

Blue Bag

That’s a picture of Richard, officer

Caroline Adams, a Sussex police officer, came over all coy as she was updating lawyers at last week’s Youth Justice Summit in London on the evolving approach to “sexting” by young people.

Readers of The Brief readers are doubtless aware that sexting – or creating or sharing explicit images of a child under 18 – is a criminal offence, even if the person doing it is a child. The down-with-the-kids copper told delegates at the inaugural conference – organised by the Youth Justice Legal Centre – that the boys and girls in blue have moved from using the word sexting to describe the practice to the not quite so catchy phrase “youth produced sexual imagery”.

Senior rozzers must have taken the view that business managers and politicians should not have exclusive use of the principle of using four words when one was perfectly adequate. Adams told the conference that the phrase was used to “reflect more what we are talking about”.

A delegate pressed the point. What lingo did the yoof of Britain themselves employ? Adams was reluctant to say for fear of turning blue the rarefied air of Allen & Overy, the City of London law firm hosting the event. “Nude pics,” was the best the increasingly flustered police officer felt able to say, leaving it to the vice-chairwoman of the Criminal Bar Association, Angela Rafferty, QC, of Red Lion Chambers in London, to elucidate. “They call them dick pics,” clarified the learned silk.

Sir Henry Brooke gets gonged by Albania

Sir Henry Brooke, the former vice-president of the civil division of the Court of Appeal in England and Wales, is scheduled to receive an unlikely award today. The octogenarian, who has taken to blogging with the enthusiasm of a teenager, is to be bestowed with the title of Skanderbeg Order’s Knight, which, for those who are not familiar with European gongs, is one of the highest medals doled out in Albania.

The Albanians are awarding Sir Henry – a long-time campaigner for court modernisation and improved technology in the justice system – for his work through the Slynn Foundation and its efforts to improve access to justice in the country. And they are not just popping the gong in the post. Bujar Nishani, the Albanian president, will be in London to make a personal presentation.

Presumably, Brooke will gently raise with Nishani and his entourage that while it is jolly decent of them to honour him, not everything is rosy on the rule of law front back in Albania. Amnesty International’s most recent country report for the central European state points uses worrying terms such as “enforced disappearances” and “forced evictions”. It also highlights issues around judicial independence and points out that over the last year, 20,000 Albanians have sought asylum in the EU.

Brooke says the Albanians are making progress. He tells The Brief: “I have paid 18 visits to Tirana since February 2010, and there are many fine people within the Albanian justice system who have welcomed the help we have been giving.”

Justice tiptoes through Scottish independence

“In these times of political and constitutional change, we face significant questions about the nature of our democracy and the foundation of the United Kingdom,” said the legal reform think tank Justice as it released a “pocket guide for Scottish lawmakers”.

“This guide doesn’t provide answers to those questions,” it continues somewhat disappointingly. Instead, it is a handy reference for members of the Scottish parliament to assist in their “understanding how our constitution, our government and our society is regulated and how the rights of individuals are protected or enforced”.

One would think that considering the Scottish Nationalist Party is particularly keen on independence, they would have those concepts fairly well nailed down in their collective cerebral cortex. But the Justice mob seems keen to provide belt and brace certainty.

“We are at a crucial point in the development of the Scottish legal system,” intones Lord Carloway, the president of the court of session, in the foreword. “Political uncertainty over the United Kingdom’s departure from the European Union, and the place of Scotland in the future world order, are only two of the important issues which the Scottish Parliament will have to grapple with in the coming months and years.

“The legal consequences of the anticipated political change may be very significant. They will require legislative alterations to the substantive law, especially in those areas which have been heavily influenced by the EU. As law-makers, Scottish Parliamentarians will be responsible for many of these alterations.”

Let’s hope they’ve been genning up.

Quote of the Day

“Doctors are human. Even good and conscientious doctors may, from time to time, fall short. That is not a reason to lose heart or (even worse) to abandon medical practice. Those who have learnt from past mistakes often have even more to offer.”