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The Times

Monday, March 20 2017

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

Today

  • Warning over move to spare rape victims court ordeal
  • Top law firms fail to promote women to partnerships
  • Brexit limbo would harm rights of parents
  • Shiner faces inquiry over pre-bankruptcy house move
  • Call for human rights protection post-Brexit
  • MPs scrutinise controversial whiplash claim reforms
  • Comment: Commercial court needs more than rebranding
  • The Churn: Complaints watchdog has a punt on Goldwag
  • Blue Bag diary: Judges adopting the ‘Truss doctrine’
  • More Blue Bag: Keeping the fizz in the property market

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

 
Story of the Day

Silk warns over Truss move to spare rape victims court ordeal

Rape defendants are more likely to plead guilty under reforms to be outlined today that will allow alleged victims to give evidence on tape in advance of trial.

Liz Truss, the justice secretary, will announce that measures to spare alleged rape victims the ordeal of live cross-examination in court will go ahead this autumn. Instead, alleged victims will be able to give evidence in pre-recorded interviews after the system was recently tested in pilot schemes in courts across three cities. But the leader of the Criminal Bar Association has warned that the system might not work.

The pilot schemes showed that defendants are more likely to plead guilty when confronted with the strength of evidence against them, removing the ordeal of a trial.

Truss has confirmed that the reforms will go ahead in September across all courts in a move that could boost rape convictions. The justice secretary and lord chancellor also announced a crackdown on grooming with a new offence of "sexual communication with a child”. Those convicted will go on the sex offender register and face up to two years in jail.

Truss will announce both measures today when MPs vote on the second reading of the Prisons and Courts Bill.

However, leading defence lawyers warned that the move could have unforeseen consequences. "No one wants witnesses in court to be needlessly stressed,” said Francis FitzGibbon QC, the chairman of the Criminal Bar Association. “That’s why the law already allows them to give evidence by live-link or behind screens.”

But the Doughty Street Chambers silk cautioned: “Trials are dynamic – the focus can shift rapidly, and those in court need to respond in real time. That creates a risk that pre-recorded cross-examination will go out of date and the witness will need to be asked more questions. To make it work, the prosecution and the defence would have to be completely ready well in advance of the trial. That should always happen but cannot be relied on."

MPs to debate radical plans for online courts

MPs will today also debate controversial government plans to move low-grade criminal trials to online courts as the legislation is given a second reading in the Commons.

The Prisons and Courts Bill plans to create a system that the government estimates will take 900,000 minor offenders a year out of the traditional court process. Transport fare-dodging and some traffic offences will form the bulk of those dealt with through a new internet-based administrative system. Other offences including TV licence evasion and fly-tipping could also be processed online.

The proposals have prompted fears from magistrates and lawyers about justice being done outside public scrutiny. They fear that some defendants will plead guilty when they should not.

In advance of the bill’s second reading today, Sir Oliver Heald, QC, the justice minister, said: “We want courts that are efficient and fit for purpose, with facilities across the entire estate that are modern, user-friendly, and work in favour of our hard working and dedicated judges and magistrates.

“The Prisons and Courts Bill underpins this vision – building on the good progress we have already made in improving the experience of all users and cementing our reputation for global legal excellence so victims get the justice they deserve as quickly as possible.”

 
 
News Round Up
Top law firms fail to promote women to partnerships

Britain’s biggest commercial law firms are failing to promote women to their partnerships, with the number of females at top tables remaining flat over the last year, figures released today reveal.

Fewer than 20 per cent of the partners at the top ten commercial practices in the City of London are women, the researchers found, showing no increase on the 19 per cent rate last year. Across the top 100 biggest commercial law firms, the percentage of women partners rises to only a quarter of the total, an increase of just one point over the last 12 months.

The figures from a poll commissioned by the London consultancy Edward Drummond & Co reflect results from a PWC survey last year. The “big four” accountancy practice found that women made up 18 per cent of partners at the top ten UK law firms, but only 17 per cent of partnerships in the firms in the 11 to 25 bracket of the league table.

In producing its figures – which related to the top half of The Lawyer magazine’s UK200 league table – Edward Drummond reeled off many of the standard explanations for stagnating gender diversity at top law firms. “Clients of top tier law firms tend to have a greater need for partners and their teams to be available virtually 24-7,” the consultants said.“This contributes substantially to the deficit of women at partner level within these organisations.” They added that “women still tend to take on a greater share of childcare responsibilities than men”.

Jaidee Spear, who worked on the research, said: “The reality is that women still tend to be the ones to sacrifice their careers in order to raise their families.”

See The Churn below

Brexit limbo would harm rights of parents

The UK will be left in a legal limbo after Brexit unless cross-border disputes can be enforced as now, peers warn today.

Divorced parents living in different countries would be unable to enforce maintenance orders, secure contact with children or even seek the return of children in “tug-of-love” cases, reports The Times.

The UK’s role as the place to settle international commercial disputes would be undermined and damage the legal services market that contributes £25.7 billion to the economy, peers find in a report. Brexit has caused uncertainty over legal protections conferred on UK-based citizens and businesses and over London’s “pre-eminence as a legal market”.

Rules ensuring judgments are enforced between states underpin the UK’s legal system and are vital, says the report by the House of Lords EU sub-committee. The loss of the regulations — without any alternatives in place — would “seriously undermine the family law rights of UK citizens and would, ultimately, be an act of self-harm”.

Shiner faces inquiry over pre-bankruptcy house move

The disgraced lawyer accused of bringing baseless war crimes claims against British troops faces investigation over whether he transferred his house to his two daughters to avoid claims of up to £4 million.

Phil Shiner declared himself bankrupt this week as it emerged that his house – worth about £330,000 – was transferred to his daughters before he was struck off the roll of solicitors for misconduct last month.

The house could be recovered from Bethay, 29, and Leisha, 27, experts said yesterday, if it was found that he had deliberately transferred it to avoid debts.

It also emerged that he has sold the Birmingham offices of his defunct firm, Public Interest Lawyers, about two weeks ago, for a sum in the region of £335,000.

Shiner, 60, was struck off after being found to have acted dishonestly in bringing claims of murder and torture against British servicemen. A total of 12 charges of misconduct were proved against him.

The government and legal aid authorities have promised to pursue him for £3 million in legal aid that his firm was paid to support the claims. The Ministry of Defence is also looking at recouping up to £1 million spent on defending its lawyers in court.

The Solicitors Regulation Authority, which brought the proceedings before a disciplinary tribunal, has also been granted an interim costs order of £250,000. A declaration of bankruptcy could act as a shield to such claims. However, insolvency experts warned that Shiner could face investigation over whether he had deliberately divested himself of his assets.

Meanwhile, the National Crime Agency confirmed to The Times that it was "in receipt of a file from the Solicitors Regulatory Authority" about Shiner and was investigation. An agency spokeswoman had no further comment.

Call for human rights protection post-Brexit

International trade deals struck after Britain leaves the European Union must contain a “human rights and democracy clause” the City lawyer heading the UK’s rights quango warned yesterday.

David Isaac, the partner at Pinsent Masons, the Square Mile law firm, who is chairman of the Equality and Human Rights Commission, criticised ministers for so far demonstrating “a lack of ambition for equality and human rights standards” in the Brexit process. Isaac, a commercial outsourcing specialist, called for the government to commit to a range of steps to ensure that human rights are protected once the UK leaves the EU.

In addition to issues around trade deals, the commission wants ministers to bring into law every part of the Equality Act 2010 not yet implemented, and to introduce “a constitutional right to equality that every law and government action can be tested against”.

It also wants the government to promise to fill the gap for those UK equality organisations that currently rely on EU funding.

“Markets and trade deals are hugely important,” said Isaac, “but our vision for the future should not be narrowly economic. Both our economy and society will be stronger in a Britain where everyone is treated fairly and can achieve their potential.

“There is a great deal of anxiety about leaving the European Union and the government should go further to unite the country by setting out a positive vision for a post-Brexit Britain. That vision must be founded on pride in our shared values of tolerance and mutual respect.”

MPs scrutinise controversial whiplash claim reforms

MPs are to launch an investigation into whether the government’s proposed crackdown on inflated claims for whiplash in motoring accidents will be effective.

The justice committee of the House of Commons announced on Friday that it is taking evidence until the end of the month to assess ministers’ proposals to raise the small claims limit for personal injury.

Lawyers have warned that the move would potentially force many injury victims to seek compensation without legal advice. The committee said it will assess the definition of whiplash and the prevalence of motoring-related claims, as well as whether fraudulent whiplash claims represent a significant problem.

They will also look at the impact of raising the small claims limit to £5,000 for road traffic-incurred whiplash claims, and of raising the small claims limit to £2,000 for personal injury claims more generally.

MPs said they would also analyse the role of claims management companies regarding motoring accidents and whiplash claims. The deadline for submissions is March 31.

In Brief

Whistleblowers to be able to take hospitals to court for discrimination – The Times

Motorists face ‘£2bn boost to premiums’ after PI discount rate rise – The Times

Libel cases rest on opinions of ‘right-thinking’ people, but there aren’t many of them on Twitter -- The Times

 
 
 
Byline
Comment

Commercial court needs more than rebranding Simon Bushell

Complex commercial disputes are big business and the market among courts and tribunals around the world is fierce. Litigators in London have been concerned for some time that the English courts risk losing ground to their various global competitors.

The lord chief justice’s latest response, revealed last week, is to rebrand the specialist civil courts within the High Court, creating the umbrella of the Business and Property Courts of England and Wales. Lord Thomas said that “the judiciary is committed to maintaining Britain’s reputation as the best place in the world for court-based dispute resolution”.

It remains to be seen how successful this rebranding is.

October 2015 saw the birth of the financial list, the much-heralded specialist banking and financial markets dispute resolution forum at the Rolls Building in London. It has showcased judicial expertise in complex financial disputes, creating a specialist, focused environment in which sophisticated users can have confidence.

Does introducing a further concept embracing “business” and “property” potentially water down or blur the message sent when introducing the financial list?

At present, High Court judges are appointed into the specific divisions, and then in some cases to the various specialist courts. Historic barriers prevent judges from moving from one court to another where, in all the circumstances, that might make sense.

The new umbrella will seemingly flatten the structure. All of the specialist civil courts will be able to draw on the judicial resources available in the other specialist courts where that might be appropriate. This has potential to work especially well in relation to the overlap between chancery and the commercial court.

The second key aspect to the announced change relates to disputes outside the capital. The message is that the Business and Property Courts will cater to parties in the regions so they do not have to issue claims in the High Court in London to benefit from the specialist judges.

From June, those judges will travel as appropriate, or those from the quota of “business and property” judges in any particular district will sit in one of the specialist courts as appropriate.

This is likely to have two consequences. First, the district registries of the High Court will develop their own versions of the specialist courts presently seen as focused in London.

Second, specialist cases that are based in one of the other commercial centres in the UK do not need to travel to London unless it makes sense to do so. This will lead to a better distribution of resources around the UK’s business centres. There is a clear political driver here: decentralising the UK’s business focus and embracing the regions.

However, in furthering that objective we must be careful not to disrupt London’s pivotal position in serving the financial and other markets and the international business community, which are large-scale users of the English commercial law.
To that end, the Rolls Building is intended to take centre stage in projecting the UK’s Business and Property Courts to the rest of the world.

Simon Bushell is a partner at Signature Litigation, a law firm in the City of London

 
 
Tweet of the Day

It is time for Osborne to apply for one more position: Crown Steward and Bailiff of the Chiltern Hundreds. https://t.co/mDt3h9Wyfa

SillySod QC @SillySodz

 
 
Blue Bag

Opinionated judges adopting the ‘Truss doctrine’

Perhaps senior judges have already taken to heart the lord chancellor’s recent plea for them to speak out more and are implementing what will soon be known as the Liz Truss doctrine.

For evidence of a new breed of outspoken judges, we look to the criminal division of the Court of Appeal in London, where our spy reports on the comments of Lord Justice Davis. He and two wingers, Mrs Justice Cheema-Grubb and the marvellously named recorder of Sheffield, His Honour Judge Goose, QC, heard an attorney-general's reference regarding a youth who had been sentenced for various offences committed during a jolly evening of japes and mayhem.

There was uncertainty over whether section 142A of the Criminal Justice Act 2003, amended in 2008, concerning the principle aims of sentencing those under 18, was in force. Lord Justice Davis became increasingly agitated, remarking that it was “so thumpingly unhelpful” of parliament to change sentencing provisions and then wait ages before implementation. It was “very annoying for lawyers” too, he said in a rare moment of bench-practitioner collegiality.

Ultimately, an exasperated Lord Justice Davis asked the lawyers with laptops to invoke a well-known online search engine to see if the provision was in force.
Defence counsel muttered; “There's no wifi, my lord” before a representative of the Crown Prosecution Service eventually managed to find the answer: the provision is not yet in force.

Keeping the fizz in the property market

Cynics might suggest that only lawyers could get excited about a commercial property conference. Which is presumably the reason for the big annual industry event being held in Cannes – it’s an attempt to afford an otherwise dry field with a bit of movie-making-style glamour.

Sources at this year’s Mipim (what’s that, ed? See our own newspaper for details), which wound up its four days of champagne-fuelled deal-making on Friday, report that the 2017 gig was “the most lawyered up for years”. All the big City of London firms were on hand, arguably in an attempt to send a “Brexit? Schmexit” message to the international property world.

They had some work to do, warns Bruce Dear, a partner at the recently merged Eversheds Sutherland. Wiping the foie gras from his lips, Dear told The Brief that UK real estate deals plummeted by 25 per cent last year – and “some of that,” he reckons, “was referendum driven”.

Dear also warns that the London property market has failed before in the not too distant past, so complacency is to be avoided. “I remember the vacant sites of the 90s recession,” says Dear. “As a newly qualified lawyer, I had nothing on my 1991 desk except one licence to assign – value £750. We don't want to go there – though I wouldn't mind my youth back”.

 
 
The Churn

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

Complaints watchdog has a punt on Goldwag

Britain’s head gambling watchdog is being put forward to lead the independent office that handles complaints against lawyers.

Wanda Goldwag, the current chairwoman of the Senet Group, the three-year-old body created by the country’s largest bookmakers, has been nominated to take over the Office for Legal Complaints.

The Legal Services Board, the overarching regulator of the legal professions in England and Wales, said on Friday that Goldwag had the backing of its chairman, Sir Michael Pitt and the lord chancellor, Liz Truss. She now awaits approval by the justice select committee.

Goldwag will replace Steve Green at the complaints office; the former chief constable of Nottinghamshire Police finishes his term at the complaints office at the end of this month.

Over in law firm land, Gowling WLG, the Anglo-Canadian practice, was the latest firm to peg its most recent partnership promotion round to International Women’s Day. The firm boosted four women to the partnership table: Sarah Galvin, Felicity Lindsay, Elizabeth Gane and Samantha Holland. They were joined by one man: Mark Stephenson.

The firm also pointed out that it only lost its private client team to Forsters, the London law firm, this month and that the move did not include its property team, as we incorrectly reported.

 
 
Closing Statement

Cops rolled over Berry

Chuck Berry’s death reminded me that the rock and roll pioneer had been one of those unfortunates prosecuted under the US’s infamous 1910 Mann Act, which was designed to prevent women being trafficked for the purpose of prostitution, writes James Morton.

It was an offence to transport a woman across a state line for the purpose of sex and Berry was one of a number to fall foul of the legislation, which was often used to prosecute black men who travelled with white women; the world heavyweight champion Jack Johnson was another.

It was also used to deal with those the authorities saw as undesirables. In 1942, Marco Reginelli, the renowned Atlantic City mobster, was missing his long-term girlfriend and paid for her fare from Philadelphia to join him in Miami. He got six months’ porridge for the privilege – which was twice as long as Berry received in 1960.

The Act is still in force and is now gender neutral.

James Morton is a former criminal law solicitor and now author