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The Times

Wednesday, January 11 2017

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

Today

  • Attorney-general backs lethal drone strikes
  • Ringfence criminal justice in Brexit negotiations, says QC
  • Top crime silk appointed to abuse inquiry
  • Push employee-rights burden on to bosses, MPs told
  • King & Wood Mallesons extends administration deadline
  • Comment: Trump will trigger a flood of returned passports
  • The Churn: Former financial watchdog takes reins at Justice
  • Blue Bag diary: Lowering the standard of proof

Tweet us @TimesLaw with your views.

 
Story of the Day

Attorney-general backs lethal drone strikes

Lethal drone strikes on terrorists are legal, the government’s senior law officer will say later today.

Jeremy Wright, QC (pictured), the attorney-general, will say in a controversial speech to defence and security experts that the deadly use of drones should be used only as a last resort, but there will be times that doing so will be unavoidable.

The lawyer will tell the International Institute for Strategic Studies that attacking terrorist targets with drones is legal “when there is no other option to defend the country from attack and no other means to detain, disrupt or otherwise prevent those plotting acts of terror”.

British government use of drone strikes leapt to public attention in 2015 when two Britons were killed in strikes aimed at targets near the Syrian city of Raqqa.

In his speech, Wright will say that future drone strikes must be done “in accordance with international law including international humanitarian law. And that means having a clear understanding of when the threshold is met to justify such action.”

The attorney-general will point out that four years ago, Sir Daniel Bethlehem, the former legal adviser to the Foreign Office, set out a series of factors that he argued should be considered when assessing whether a terrorist attack on a UK target was imminent.

Bethlehem included the nature and immediacy of the threat, the probability of an attack, whether the anticipated attack was seen as part of a concerted pattern of continuing armed activity, the likely scale of the attack and the injury that would be caused.

Other factors that would legally justify a lethal drone strike were the loss or damage likely to result from the threat of an imminent terror attack in the absence of mitigating action, and the likelihood that there will be other opportunities to undertake effective action in self-defence “that may be expected to cause less serious collateral injury, loss or damage”.

In his speech, Wright will say that current world events do “not always allow for the possibility of using criminal law enforcement measures to stop attacks – when attacks are planned from outside our territory and where the host state is unable or unwilling to act”.

 
 
News Round Up
Ringfence criminal justice in Brexit negotiations, says QC

The UK’s links with the EU on counterterrorism and criminal justice should be ringfenced from “bargaining chip” Brexit negotiations, a leading barrister has said.

Francis FitzGibbon, QC (pictured), who chairs the 4,000-strong Criminal Bar Association, said that the issues were too important to be put in the mix.

The vote to leave the EU has left question marks over the future of information-sharing measures used and strongly backed by UK law enforcement and security services.

The QC told the justice committee of the House of Commons yesterday that the “outward-facing part” of the criminal justice system was unlikely to look much different when the UK leaves the EU. He said: “Trials will continue much as they have done, investigations will continue much as they have done.”

However, he claimed that “it’s the hidden wiring behind it that seems to me to be at risk ... with potentially dangerous impacts on cases that don’t come to court, things that are missed”.

On the European arrest warrant, FitzGibbon, a tenant at Doughty Street Chambers in London, told MPs that he was not sure it could be “detached” from the “panoply of other mutual arrangements that exist in the law and order [and] justice field”.

He went on: “I would like to think that there is a way of detaching the whole of that sphere from the sort of bargaining chip negotiations that are plainly going to take place with regard to economic and other matters because they are too important.

“Our public safety and our protection from terrorism and other serious crime are just too important to put in the mix of poker chips that are likely to be on the table for other things.”

Altman steps into abuse inquiry counsel gap

One of the country’s most experienced criminal barristers has been appointed to the £100 million Independent Inquiry into Child Sexual Abuse.

Brian Altman, QC, who as senior treasury counsel has led some of the biggest prosecutions at the Old Bailey – ranging from murders to complex terrorist cases – will take over as lead counsel after the sudden resignation last year of Ben Emmerson, QC.

Alexis Jay, who chairs the inquiry, described Altman as “hugely experienced, having spent 16 years as treasury counsel, the last two and a half years of which were as first senior treasury counsel”.

After his appointment was confirmed, Altman said he looked forward to taking up his post. His salary was not disclosed but Emmerson earned more than £400,000 from his work at the inquiry in 2015. Altman said: “The government and the public have set the inquiry a huge challenge to investigate institutional responses to child sexual abuse in the past, and to report and make recommendations in order to prevent such abuse happening in the future.”

Observers view Altman – who is a tenant at 2 Bedford Row chambers in London and took silk in 2008 – as being a member of the top coterie of crime barristers at the English Bar. He prosecuted Levi Bellfield in 2011 for the abduction and murder of the schoolgirl Milly Dowler, and those accused of the Birmingham suicide bomb plot in 2012 and the 1982 Hyde Park bombing.

The inquiry has been plagued by controversy since it was originally launched by Theresa May in 2014 when she was home secretary. Last month it emerged that all the investigative strands will be retained after an internal review concluded that it should not be scaled back.

Emmerson resigned shortly after being suspended amid concerns about his leadership. His deputy on the legal team had resigned days earlier.

Push employee-rights burden on to bosses, says solicitor chief

Employers should have to prove that they comply with the law rather than their staff being forced to fight for their rights in tribunals, senior solicitors told MPs yesterday.

The law should be changed so that the onus of compliance is reversed in relation to employment standards, the president of the Law Society told a committee of MPs.

In submissions to an inquiry into the future of work and the rights of workers conducted by the House of Commons business, energy and industrial strategy committee, Robert Bourns said that employment legislation needed urgent reform.

“The current system, where employees must take legal action against their employer when they are denied their rights at work, such as minimum wage rates, is clearly not working,” Bourns said.

The society, which represents solicitors in England and Wales, maintained that “bad employers” are currently “encouraged” to break the law because few enforcement actions are taken. “They assume they will get away with it,” Bourns said. “This leaves employees suffering abuse, and good employers suffering from unfair competition from those who flaunt the rules.

“Placing the relatively small responsibility on employers to show that they comply with employment laws would be an important step forward to ensuring our employment laws work for everyone.”

King & Wood Mallesons extends administration deadline

Lawyers at the City of London office of King & Wood Mallesons added yet another act to the firm’s drawn-out drama yesterday by filing with the court a second notice of intention to appoint administrators.

Officials at the Square Mile outpost of the Sino-Australian practice confirmed that the notice had been lodged with the High Court, which buys the practice another ten working days before having to file for administration.

That final hurdle, when it comes, appears to have been ramped up higher because it is understood that AlixPartners, the restructuring specialist business, had declined to be named as administrators in the second court filing.

A report in The Lawyer magazine said that Alix had expressed “concerns about funding” as it dropped KWM. The report said that another restructuring company, Quantuma, had stepped into the breach.

Regardless of when the London office slips into administration, the mood among lawyers and employees left in its Queen Street Place offices was understandably grim.

A leaked memo to staff from the firm’s managing partner, Tim Bednall, blamed the firm’s bank, Barclays, for reneging on a promise to produce weekly pay packets in January. In the memo, Bednall says that he made no fewer than three proposals to the bank in an effort to ensure that staff salaries could be paid, but all were rejected.

In Brief

Corbyn calls for maximum wage on top earners – The Times

Judge condemns Leigh Day for “deliberate disregard” of court order in £50m costs battle – Litigation Futures

Blacker set for High Court appeal against strike-off – Law Gazette

 
Byline
Comment

Trump will trigger a flood of returned passports Nita Upadhye

The election of the businessman and reality TV star Donald Trump as the 45th president of the United States sent shockwaves across the world. Nevertheless, Trump was nominated by his party, elected by the American people, and on January 20 he will be sworn in.

Will this result in more Americans mumbling an ironic sayonara to the US and surrendering their passports for good? My prediction is yes.

More than 4,250 US citizens renounced their citizenship in 2015 and a total of 1,158 names for the first quarter of 2016 has been listed in the federal register. Although these are small numbers compared with the eight million US citizens living in 160-plus countries, the figure has been rising over the years and is likely to rise significantly under the Trump administration.

Driving the rising tide of returned passports washing up on the shores of US embassies will be Trump’s controversial ideology and unpredictable leadership style. But that is not the only factor. There are also increasingly onerous rules on tax reporting that are not likely to change any time soon.

The decision to renounce US citizenship involves careful considerations of tax, legal and personal ramifications. The tax burden of keeping citizenship while living abroad can be significant – all Americans, regardless of where in the world they choose to live and work, face tax compliance rules. Renunciation is often the logical step for those who are troubled by the prospect of incurring significant compliance costs and fearful of potential penalties for lapses or missteps for the sake of holding on to their US passport.

The drawback is that the person is giving up rights to reside freely and work in the US, transmit US citizenship to offspring born abroad, or sponsor a spouse for green card status.

If dual nationals have been contemplating giving up citizenship, but have wanted to maintain ties to the US way of life with its spirit of openness and opportunity, the election of Trump could push them over the edge. The president-elect is perceived by many as propounding an ideology of hostility, which has arguably resulted in a rise in hate crimes against immigrants, homosexuals, women and others.

Trump has indicated that he plans to focus inward, on making life better for the average American. But he is not likely to make life any easier for Americans residing abroad.

Many dual-national Americans are no longer proud to be American. Some see it as an embarrassment and disgrace to have a leader who is compared to dictators and boasts about sexual conquests. On January 20, the world will change indelibly and, as a result, Lady Liberty will wave goodbye to many Americans she once welcomed with open arms.

Nita Nicole Upadhye is the founder of the London law firm NNU Immigration

 
 
Tweet of the Day

#Corbyn wants to set a maximum wage. <1% of workers earn as much as he does (£138,000). He doesn't see why people should earn >£50k. Uh? Eh?

SillySod QC @SillySodz

 
 
Blue Bag

Lowering the standard of proof

A prognostication to send shivers down the spines of solicitors – momentum seems to be gathering for the profession’s disciplinary authorities to amend their disciplinary standard of proof.

Those wretched souls appearing before the Solicitors Disciplinary Tribunal are currently subject to the criminal standard of beyond reasonable doubt. But Iain Miller, a partner at the London law firm Kingsley Napley, points out in a recent blog that only barristers and vets share that privilege, with all other professional regulators working to a civil standard of proof.

Chuntering has been building for some time – not least in the corridors of the Solicitors Regulation Authority, the body that prosecutes allegedly wayward solicitors – that the bar for conviction is set too high.

Miller reminds solicitors that the tribunal and the Legal Services Board are set to review disciplinary rules. “It is difficult to see how the criminal standard can be maintained for much longer,” he warns.

Law Society smells the coffee

Credit to the Law Society for ploughing on in the face of adversity as its chief executive last week became the latest senior figure to flounce out of Chancery Lane in disgust at the organisation’s Luddite approach to corporate governance.

Despite the turmoil at the top, the society has relaunched its modern engagement with lawyers through its SolicitorHour Twitter account. Every Thursday, the feed hosts an hour-long advice session for punters under the #SolicitorHour banner.

This week’s topic is advertised as doling out advice for first-time homebuyers. And as an inducement to participate, the great Twitter public is being offered a chance to win £10 of Starbucks vouchers.

Which suggests that the subject matter should have been tax advice rather than conveyancing, but perhaps the Law Society has enough troubles …

Lawyers could tell the Beeb much about Clementi

BBC execs pay attention … Back in the early 2000s, those in charge of the various branches of the UK’s legal profession lay awake at night tormented by nightmarish visions of David Clementi. The Labour lord chancellor, Lord Falconer, had wheeled in the banker to conduct an independent review of legal services in England and Wales.

Clementi’s report in 2004 paved the way for greater independence for the Solicitors Regulation Authority and the Bar Standards Board, as well as providing a blueprint for the creation of alternative business structures and outside capital investment in law firms.

The profession in England and Wales is now effectively fused, with barristers and solicitors allowed to form partnerships. There is also a growing marketplace in regulation, with the SRA and the BSB soon to be competing with accountancy bodies and even the regulator of legal executives for the affections of multidisciplinary partnerships.

And all of this, many would say, is thanks to Clementi.

 
 
The Churn

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

Former financial watchdog takes reins at Justice

Walter Merricks – the former financial services ombudsman and present chairman of the nascent press regulator Impress – has added the top slot at the campaigning group Justice to his expanding CV.

Merricks qualified as a solicitor in 1970 and spent more than a decade in the 1980s and 1990s as head of communications at the Law Society. He spent ten years in the ombudsman role and more recently has been in the spotlight as the lead claimant in a £14 billion action against the credit card business MasterCard.

Justice was founded in 1957 “to promote the rule of law and the fair administration of justice”.

Elsewhere on the greasy pole …

The two latest lawyers to find a safety raft as the London office of King & Wood Mallesons continues to sink are Cindy Valentine and Jen Yee Chan. The two join the partnership at Simmons & Simmons, where they will jump aboard its international financial markets practice.

Three other KWM refugees – Christophe Humpe, Tom Usher and Cameron Firth – will launch a competition practice for Macfarlanes in Brussels.

Also around the Square Mile, Patrick Sarch has joined the London office of the US firm White & Case as a partner. The mergers and acquisitions specialist jumps from Clifford Chance, one of London’s five “magic circle” elite.

CC started the new year with another defection as Ruby Giblin ditched the Docklands-based firm for the partnership at Winckworth Sherwood, where she joins the social housing finance team.

In the litigation funding firmament, the US and UK company Woodsford Litigation promoted Steven Friel to its chief executive slot. Friel did stints at Brown Rudnick, a Boston law firm, and the London practice DAC Beachcroft before joining the third-party funder.

 
 
Closing Statement

Judging the put-down

Judge Patricia Lynch showed great restraint in the face of considerable provocation, and her final words – “Take him down” – left her in full possession of the field.

In contrast, writes John Bromley-Davenport, QC, a less robust approach to dealing with a disgruntled defendant was demonstrated by Judge David Owen at Burnley crown court. After receiving an immediate custodial sentence, the defendant shouted: “You’re a f***ing c***.”

Judge Owen (bristling with indignation): “What did you say?”

Defendant: “You’re a f***ing c***.”

Judge: “How dare you speak to me like that!”

Defendant: “’Cos you’re a f***ing c***.”

Judge: “You’re an impudent little squirt.”

The defendant repeated his insult as prison staff hustled him down the stairs.

Ignoring abuse is probably the best tactic, but if unable to exercise absolute restraint, those on the bench would do well to note the reaction of an Old Bailey judge to a prisoner who called him a stupid bastard.

“This evening I shall leave court and drive home to my beautiful wife. We will drink gin and tonic and talk whilst she prepares a delicious dinner and I open a superb bottle of claret. After dinner we will retire for the night. You, on the other hand, will go to Wormwood Scrubs. Now you tell me which of us is a stupid bastard.”

John Bromley-Davenport, QC, is a criminal law specialist at 1 Gray’s Inn Square chambers in London