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The Times

Thursday, November 3 2016

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

In court today … Ruling on MPs’ right to vote on Brexit

The Lord Chief Justice and two other senior judges will rule later this morning on whether Parliament’s approval is required before the prime minister triggers the process for withdrawal from the EU. Whichever way the ruling goes, there is expected to be an appeal straight to the Supreme Court, leapfrogging the Court of Appeal, which is allowed in decisions of national importance.

Plus, new Brief Premium

  • Employment law focus: Workers’ rights post-Uber – the new revolution
  • Pensions law focus: Age concerns

Also today ...

  • Juries 'don’t understand scientific evidence'
  • Extradition under threat post-Brexit, warns top prosecutor
  • Green gets final demand in BHS pension scandal
  • Average wage of employed barristers scrapes £70k mark
  • Matrix silent on alleged Emmerson investigation
  • Prosecutors ‘must co-operate more’ with defence lawyers
  • Comment: Brexit – in-house lawyers must seize strategic adviser role
  • Blue Bag diary: No one’s laughing in the courtroom

Tweet us @TimesLaw with your views.

 
 
 
Story of the Day

Juries don’t understand scientific evidence, say expert witnesses

Nearly two thirds of expert witnesses say juries are not equipped to understand their scientific evidence, exclusive research released today shows.

Many of the experts – 40 per cent – also argue that technical trials should be heard by judges sitting on their own because of juries’ failings. Nearly half also reveal that some expert witnesses act still as “hired guns” and give the opinion that their instructing lawyers require; while one in three felt pressured to change their report in a way that damaged their impartiality.

That finding comes despite concerns expressed by Lord Woolf, then Master of the Rolls, in new civil court rules introduced in 1999 that an expert’s duty was to the court and not the paying side.

The findings are contained in a national annual expert witness survey for this year conducted by Bond Solon, a leading expert witness training company, in association with The Times. They also show that expert witnesses are increasingly anxious about giving evidence after a series of cases where experts have come under fire or even been disciplined.

Next week the outcome of the appeal by Dr Waney Squier against being struck off by the General Medical Council is expected. Squier disputed the existence of shaken baby syndrome. The GMC panel found her expert evidence “dishonest” and “deliberately misleading”. Two other pathologists, Dr Irene Scheimberg and Dr Marta Cohen, who are also critical of shaken baby syndrome, no longer give evidence in court because they say they are afraid of the possible consequences.

Two thirds of experts in the survey thought that such cases would deter experts from giving evidence in the future and more than a quarter said they had considered stopping work as an expert witness over the past 12 months.

Mark Solon, chairman of Wilmington Legal and founder of Bond Solon, said: “These findings are worrying. They show there is a real risk that courts may not reach the correct conclusions as a result of juries either not understanding expert evidence; or experts themselves compromising their evidence at the behest of their instructing lawyers.

“There is a real risk of miscarriages of justice and a need for extra vigilance and strictly-enforced codes of practice on the part of judges and professional bodies to ensure high ethical standards and clarity in the way evidence is put before the court.”

 
 
 
 
News Round Up
Extradition under threat post-Brexit, warns top prosecutor

England’s chief prosecutor has warned that the extradition of criminal suspects could be seriously hampered unless existing arrangements are replicated after Brexit.

Alison Saunders, the director of public prosecutions, said that pulling out of the European arrest warrant (EAW) could add significant delays in the extradition of criminals as well as increasing costs.

It was “absolutely vital” that similar arrangements continued after Brexit or the process could be slowed down from days and weeks to months and years, she told peers. “It’s three times faster to use an EAW and it is four times less expensive for us to be able to do that as well,” Saunders told the Lords’ EU home affairs sub-committee.

She said that the package of justice-enforcement measures enjoyed with the EU was of great benefit as “pretty much all” organiased crime had an international element, with people traffickers and drug smugglers using routes through Europe. “A substantial majority of our cases have some sort of international connection. The crime which we prosecute tends to be more and more global,” Saunders said.

However, there were other equally important measures such as the use of Eurojust, an EU agency that facilitates cooperation on crime, where the UK had 31 joint investigations pending. “There are a package of measures we think are really important and not just the obvious ones such as the European arrest warrant, which is absolutely vital and which we make a great deal of use of,” she added.

The question was whether similar arrangements could be negotiated with all the different EU states, she said. On extradition, it was not just a matter of reverting to the arrangements before the EAW took effect as some countries would no longer have that legislation in place and there would have to be new legislation.

Green gets final demand in BHS pension scandal

Sir Philip Green and his wife face a demand for hundreds of millions of pounds to fill the BHS pensions hole after the regulator took unprecedented action, The Times reports this morning.

Talks between the retail tycoon and the Pensions Regulator broke down before a deal could be reached to rescue the retailer’s pension scheme and the retirement plans of 20,000 members.

The watchdog began formal enforcement action as a result. It issued warning notices, each more than 300 pages long, to Sir Philip and Dominic Chappell, the former bankrupt entrepreneur who bought BHS for £1 with his consortium Retail Acquisitions.

Taveta Investments would also be pursued by the regulator, it said. Sir Philip’s wife, Tina, is the ultimate controlling party behind Taveta Investments, the Jersey-based company that owns Arcadia, the group whose stores include Topshop, Burton and Dorothy Perkins. It was taken over by Sir Philip in 2002.

See: We're all pensioners now -- Pensions focus in Brief Premium

Average wage of employed barristers scrapes £70k mark

Employed barristers earn average annual salaries of nearly £70,000, a comprehensive analysis of the sector reveals today.

Remuneration at private companies outstripped average pay for barristers at law firms. The survey showed that the average salary for an employed barrister at a corporate legal department was just short of £91,000, about £9,000 more than the average figure for those employed by solicitors.

The average pay for barristers employed in Whitehall was also significantly better than the average earnings of those employed as prosecutors. The average for barristers at the Government Legal Service was slightly more than £65,500, while average annual pay for those at the Crown Prosecution Service was just shy of £57,400.

The figures – released by the Bar Council of England and Wales – showed that 16 per cent of employed barristers had gross salaries of more than £100,000, while 6 per cent logged salaries of more than £150,000.

The researchers said that none of the respondents reported an annual salary of less than £20,000 among employed barristers. However, the council pointed out that some respondents did not supply salary details.

The report also found that respondents continued to feel that the self-employed bar took the view that employed barristers are less capable. In addition, the researchers said, “several participants observed that their role as an employed barrister is often confused with that of a solicitor, and that the title creates a mistaken belief that the barrister is no longer practising, or is less qualified to undertake particular work”.

Matrix silent on alleged Emmerson investigation

Senior barristers at Matrix Chambers have gone to ground amid suggestions that they have launched an internal investigation into the behaviour of Ben Emmerson, QC, during his time as counsel to the independent inquiry into child sexual abuse.

BBC Two’s Newsnight programme reported on Monday that Emmerson – who resigned from the inquiry several weeks ago – was the subject of an allegation of sexual.

However, Lindsay Scott, the chambers’ chief executive, told The Brief that Matrix had “no comment at this time”. Neither Helen Mountfield, QC, joint head of chambers,nor Hugh Southey, QC, responded to requests for comment.

Emmerson has denied any instance of sexual assault, bullying or other misconduct.

Lisa Nandy, the Labour MP for Wigan, raised the issue in parliament, telling the House of Commons: “Newsnight reported serious allegations of sexual assault by the most senior lawyer on the child abuse inquiry, Ben Emmerson, QC. The disclosure was made in early September, but no action was taken until 29 September. The Home Secretary’s predecessor hand-picked Mr Emmerson for the inquiry. Can she therefore tell us why it took so long for action to be taken, why the investigation into his conduct was dropped, and why he is still reportedly being paid £1,700 a day even though he no longer works on the inquiry?"

The latest twist in the saga involving the benighted investigation came as it emerged that the inquiry had lost yet another lawyer. Toby Fisher, a public law junior of eight years’ call, was reported to have quit after letting it be known in August that he wanted to leave the inquiry.

Prosecutors ‘must co-operate more’ with defence lawyers

Prosecutors must improve their correspondence with defence lawyers before hearings, the watchdog overseeing criminal processes said yesterday.

Inspectors accused the Crown Prosecution Service of having “inconsistent” pre-hearing engagement with defence lawyers, saying that there was a need for “significant improvement” if recently imposed case management systems were not to fail.

Officials for Her Majesty’s Crown Prosecution Service Inspectorate also called on prosecutors to engage with digital case management systems. In the report, inspectors said that after a first hearing and before plea and trial preparation hearings, prosecutors should “promptly” add the prosecution bundle of evidence, the indictment and the pre-trial hearing form to the digital case system.

Inspectors said that they found “that all of these aspects need to be carried out more efficiently”.

They also told the CPS that cases should be reviewed within 72 hours of the first hearing, pointing at figures showing that currently 56.5 per cent received a “proper and proportionate” review with a further 28.8 per cent having received “some sort of review”. Only 13 per cent were reviewed within the prescribed time.

A CPS spokesman said that the inspection took place within a few months of implementation of the beefed up case management initiative. “We will study the findings carefully as we continue to make further improvements,” he said.

In Brief

In today’s Times Law …

Elsewhere …

  • Hillsborough legal bill topped £100m -- The Times
  • Diesel drivers fear £10 city centre bill after High Court orders government to clean up -- Daily Telegraph
  • Norton Rose Fulbright sued by London associate – The Lawyer
  • City boss sues for £1m over claims of 'unrelenting' homophobic abuse – London Evening Standard
  • Lawyer hanged herself after arrest for drink-driving -- The Times
  • Mansfield isn’t a fighter for truth and justice, argues David Aaronovitch -- The Times
 
 
 
Byline
Comment

Brexit – in-house lawyers must seize strategic adviser role Chris Newby

The latest in our series of general counsel comments produced in partnership with Winmark.

The impact of Brexit will vary depending on business sector, corporate structure and how important access to the European market is to a business – but ultimately it is an opportunity for general counsels to become strategic advisers to senior executives and boards of directors.

Concerns range from additional tariffs on imports, continued access to the single market for financial services or simply concern about the health of the UK economy.

However, there are some common themes. Crucially, the GCs should take a central role in analysing and assessing the impact of Brexit, and planning how to address the difficulties and opportunities. Although many different departments may be involved in this planning process, legal should be at the forefront.

GCs should identify the top three areas of focus. This will also involve understanding the extent to which a business is currently reliant on access to the EU single market or reliant on specific areas of EU legislation. Consider legislation and regulation specific to the business – employment law, corporate governance and corporate structure, as well as tax and human resources issues.

The key to successful Brexit planning is stakeholder management and ensuring that advice goes beyond the strictly legal impact. Chief executives at global businesses will be watching for signals, reading the press, and talking to contacts. They will need reassurance that there is a clear and robust strategy for Brexit planning at local entity level.

By establishing early a cross-departmental group to lead Brexit planning – co-ordinated by the local (ideally UK-based) GC – it is easier to make this group the channel for activity. Doing so will reduce the likelihood of different functions initiating multiple channels into the board, with the potential for confusion, duplication and mixed messages.

Similarly, within the European and UK executive team, it is important that there is a co-ordinated and clear channel of information and advice into the board assessing areas of impact, establishing ownership of different areas of impact, and being clear about what decisions are required and when. Independent non-executive directors will take a keen interest and are likely to have their own network of contacts.

GCs must also engage with clients and customers with timely, clear and reassuring messages communicating that any impact is being planned for and mitigated. Clear messages to staff can be tricky, but the role for the GC is to ensure that employee communications is in line with the overall strategy and that as much transparency is given as possible.

The main step GCs must take is to identify areas of impact, establish ownership and set up a cross-functional working group that is co-ordinated by the legal team. Prepare carefully for what can be predicted and then consider the unknown – identify a worst case scenario and work back from there.

And keep the board informed. Identify where board input is needed and ensure board members are clear on the likely impact and steps needed to address that impact.

Chris Newby is general counsel at AIG Europe, the multi-national insurance company; he is a member of the Chief Legal Officer's network at Winmark, the C-Suite networks organisation. Contact the chief executive for more information at John.jeffcock@winmarkglobal.com.

 
 
Tweet of the Day

"The tendency to over-complicate... is the besetting sin of all but the most luminous legal minds" Lord Bingham (whose mind was luminous)

James Lee @jamessflee

 
 
Blue Bag

The not-so-laughing experts

Expert witnesses are not a jolly lot, if the results of a recent poll are anything to go by. The national annual expert witness survey, published today by Bond Solon, a training company, asked more than 750 specialists to describe their “most amusing incident in court”.

Remarkably, a theme that ran through the answers was typified by the respondent who, through pursed lips, no doubt, said: “I have not found any ‘incidents’ in court to be amusing.”

Another replied: “Can’t think of one. Usually most court cases are conducted in a serious way.” Another was outright offended that the subject of amusing incidents should even be raised. “You must be joking,” was the ironic response. “What a stupid question.”

To be fair, some respondents managed to dig deep to produce the odd amusing anecdote. One related that counsel asked a witness “How far can you see at night?” and responded: “On a clear night, several million light years.” Another cited a professional Kafaesque experience. “I was summoned as a witness for the prosecution in the morning session; I was discharged at lunchtime. I was then summoned again on the same afternoon as a witness for the defence.”

And at the complete opposite end of the spectrum from the po-faced majority that claimed not to be amused by anything in court, came this response: “Too many to select one.”

Bulls*** science

The annual Bond Solon conference itself is tomorrow when it takes over Church House in Westminster. Bishops used to be the arbiters of truth and now it is “experts”.

However, the authority of experts is increasingly being challenged. So a key presentation at the event will come from Clive Stafford-Smith, the anti-death sentence lawyer, speaking about the Waney Squier case, whose appeal against being struck off the General Medical Council register for her evidence in shaken baby cases is high profile this week.

Stafford-Smith, who regards shaken baby syndrome as being devoid of any scientific merit, is a passionate defender of Squier describing her as the “Galileo of our time”. “Shaken baby syndrome has been accepted by the courts as a scientific fact,” says Stafford-Smith.“In fact, it is just scientific bull-s***.”

 
 
Closing Statement

Luv a duck …

In the politically incorrect 1970s, writes James Morton, I had a client who spoke almost wholly in Cockney rhyming and other slang and did not realise it. Arrested for receiving stolen goods, his verbals ran something like this: “I was having a pony in the karzi when a pikey schmo flashes me his groin and we're swagged by the filth down the peter over some smutter tom.”

When presented with the transcript, my client was incandescent. “It's all porkies, Mr M. You know I don't spiel like that.”

James Morton is a former criminal law solicitor and now author