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The Times

Thursday, February 2 2017

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

Breaking: Former QC at centre of Church of England abuse apology

A retired QC is at the centre of allegations of child abuse and the Church of England. The Times reports that the Archbishop of Canterbury issued an unreserved apology last night after a former colleague at a Christian holiday camp – John Smyth, QC -- was accused of grooming and sadistically abusing young men.

Smyth, 75, once acted for Mary Whitehouse against the Gay News newspaper. According to the Daily Telegraph he was appointed as a part-time judge in 1978. He now lives abroad, having founded the Justice Alliance of South Africa. Smyth declined to comment to Channel 4 News.


  • Reforms limit police bail to 28 days
  • Eversheds in £600m transatlantic merger
  • System for disclosing convictions is ‘unclear and confusing’
  • Muslim lawyers lobby ministers to reject Trump travel ban
  • Lords calls for unified EU sanctions regime
  • Ministers rebuffed over employment tribunal fees
  • Lord chancellor casts net wide to recruit crown court judges
  • Comment: Prepare for Article 50’s ugly big brother
  • Blue bag diary: 'Foul-mouthed' barrister back in the Twitter saddle

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

Story of the Day

Reforms limit police bail to 28 days

The biggest reforms in 30 years to the police’s use of pre-charge bail – including a limit of 28 days without authority – have reached the statute book.

Under the revised system, the police would make the initial decision to release a suspect on bail. That decision would be reviewed by a superintendent after 28 days, at which point further bail could be authorised up to a total of three months in exceptional circumstances.

Any application to extend pre-charge bail beyond three months would have to be approved by a magistrate.

The reforms come after widespread criticism of extended periods of police bail, highlighted in cases such as that of the broadcaster Paul Gambaccini (pictured), who was bailed for a year before being told that there was no case against him.

Jenny Wiltshire, a partner at Hickman & Rose, a London law firm, said that the revised legislation was “a step in the right direction but does not go far enough”.

The lawyer said that the reforms “do nothing for the large number of suspects who are not on bail and who have no idea where they stand. The police are under no obligation to update them as to what they are doing or when it might end. Many wait well over a year for an outcome while their lives are in limbo.”

News Round Up
Eversheds in £600m transatlantic merger

Eversheds – the English law firm that has gone from domestic franchise to European and international expansion in less than 30 years – yesterday became the latest transatlantic legal practice as it cut a £600 million merger deal.

The Times reports that senior partners on both sides of the Atlantic announced a “combination” with Sutherland Asbill & Brennan, a nationwide US practice based in Atlanta and Washington.

The deal will create a firm of some 2,000 lawyers, including more than 530 partners, spread over 61 offices in 29 countries.

The brand, which has gone through several incarnations since Eversheds was launched in 1988, will predominantly be Eversheds Sutherland in jurisdictions around the world. However, owing to the practice’s complicated franchised partnership arrangements, some historic names will continue to feature in several European jurisdictions.

The English firm is arguably the dominant partner in the merger. Eversheds’ most recent annual revenue figure was £405.5 million, a 7 per cent increase on the previous year.

In contrast, Sutherland’s turnover stood at slightly more than £237 million. However, on sterling’s current low position relative to the dollar, the US firm has posted a better average profit per equity partner figure: £810,000 compared with £742,000 for Eversheds.

The merger will create the 39th biggest international law firm, according to The Lawyer magazine’s Global 200 list.

Lee Ranson, a commercial litigation lawyer and Eversheds’ managing partner, will become joint chief executive of the firm with Mark Wasserman, Sutherland’s managing partner.

Meanwhile, The Lawyer magazine reports that Norton Rose Fulbright, another transatlantic firm, has ditched merger talks with Henry Davis York, an Australian practice.

System for disclosing convictions is ‘unclear and confusing’

Ex-criminals who should disclose their previous convictions to employers may be “slipping through the net”, ministers have been warned.

There are “large-scale” problems in the regime governing the disclosure of criminal records in England and Wales, a government-commissioned report concludes.

Confusion over what offences should be disclosed means people may be wrongly ruled out of jobs – and others who should be excluded may be slipping through the net, the report from the Law Commission says. The report described the law governing the system as unclear and confusing and possibly in breach of human rights, concluding that there was a compelling case for a wider review.

Home Office officials asked the commission last year to examine the effectiveness of a specific aspect of the system known as “filtering”. This is the framework that regulates when someone has to disclose convictions and cautions even though they are spent.

Before 2013 all convictions and cautions recorded on the Police National Computer, spent or otherwise, had to be disclosed in answer to certain questions such as those aimed at safeguarding children.

The “filtering” scheme was then brought in so that an individual who otherwise had to disclose all criminal offending history would not have to do so if the convictions were for old and minor offences.

The report says that inaccuracies in an operational list of “non-filterable” offences – crimes that always have to be revealed – mean that some convictions and cautions “could well be wrongly disclosed or wrongly withheld”.

Muslim lawyers call on ministers to reject Trump travel ban

Lawyers are leading a group of British Muslim professionals in calling on the UK government to “stand up” to Donald Trump’s recently imposed travel ban.

The Association of Muslim Lawyers said yesterday that it had brought together groups representing Muslim doctors and engineers to press ministers to take a firm line with the new US president.

Called MASS, the group said that the British government must “stand up for the rule of law and human rights and uphold age-old British values of decency and humanity instead of appeasement, and above trade deals and our shared history”. The group described the Trump executive order as triggering a “pivotal moment of history upon which we will all be judged”.

The MASS statement went on to argue that the executive order – which has banned travel to the US from seven countries with predominantly Muslim populations – “will provide a rubber stamp for the far right to not only increase but justify attacks on Muslims in America, Europe and other parts of the world”.

Lords calls for unified EU sanctions regime

Standards of proof when imposing economic sanctions should be codified across the EU to reduce the number of cases struck down by the bloc’s court, peers will argue later today.

EU ministers should be obliged to ensure that member states have uniformly robust procedures to allow the EU courts to assess confidential evidence underpinning sanctions listings, the EU justice committee of the House of Lords will say in a report.

According to the peers, the EU’s council should “urgently reduce the time taken to respond to correspondence from targeted individuals and companies, especially when mistaken identity is alleged”.

The committee recommends that the council of ministers should consider creating an ombudsman for EU sanctions. It argues that the scheme could be similar to the role of the UN ombudsman for the al-Qaeda sanctions committee, and that it would “improve the fairness of the sanctions listing procedure”.

The committee also said that the UK should align itself with an EU sanctions regime after it leaves the bloc.

“The sanctions listing process has improved considerably and the UK has led in achieving this,” said Baroness Kennedy of The Shaws, QC at Doughty Street Chambers in London and the committee chairwoman.

“In the past, targeted individuals or companies were neither informed that they had been listed nor provided with a statement of reasons for the listing. However, there is much more to be done to make the process fairer.”

Ministers rebuffed over employment tribunal fees

Lawyers and trade union leaders reacted angrily to the government’s claim earlier this week that employment tribunal fees were succeeding in cutting claims and shifting disputes to arbitration.

“Employment tribunal fees have had a chilling effect on the number of people able or willing to bring a case against their employer,” said Robert Bourns, president of the Law Society, the body representing solicitors in England and Wales.

The society maintained that sexual discrimination and equal pay claims were particularly affected. Bourns argued that the reduction in tribunal cases was not offset by an increase in claimants using Acas’s early conciliation service, as maintained on Tuesday by Sir Oliver Heald, the justice minister.

“Solicitors working in this area also report that the reduced number of claims has altered the behaviour of employers and we will address this concern in our consultation response,” Bourns said.

Carolyn Brown, a solicitor-partner at RSM, formerly the accountancy practice Baker Tilly, pointed out that in the immediate aftermath of the imposition of fees in 2013 there was a “massive drop of around 80 per cent in claims”. Brown said that “female claimants losing pay or jobs during maternity absence were particularly badly affected”.

Paul Maloney, southern regional secretary of the GMB union, described the fee regime as “draconian and oppressive”, and called for it to be scrapped. He blamed the present government and previous coalition for having “systematically undermined employment protections for ordinary working people”.

Lord chancellor casts net wide to recruit crown court judges

Efforts to widen the net for crown court judges kicked off yesterday as a competition to fill 100 recorder places began.

The process – overseen by the Judicial Appointments Commission – aims to place 100 judges to hear criminal trials from beyond the pool of candidates normally canvassed in an attempt to create greater social, ethnic and gender diversity on the bench.

Commissioners will recommend for selection the “candidates of the highest ability from all jurisdictions and backgrounds”. In a statement yesterday the commission said that training and support would be offered to those without jurisdictional experience normally required for applications to the part-time bench.

The move comes after the lord chancellor and the lord chief justice, the highest ranking judge in England and Wales, approved a programme of recommending potential recorders “without regard to their current jurisdictional experience or geographic location”.

Liz Truss, the lord chancellor and justice secretary, said: “We are determined to open up our exceptional judiciary to more exceptional people from every walk of life. My message is clear – when you widen the pool of talent from which lawyers and judges are drawn, you better reflect the society they serve and make the justice system stronger.”

In Brief

In today’s Times Law

Elsewhere …

  • EU law will continue to affect Britons even after Brexit, former attorney general warns – The Sun
  • Watchdog could force Tesco to sell 635 stores – The Times
  • Brokenshire offers 'clear and unequivocal' support for Lord Chief Justice and Director of Public Prosecutions – The Irish News
  • Swearing isn’t a criminal offence, says judge – The Times
  • Democrats vow to fight choice for Supreme Court – The Times

Prepare for Article 50’s ugly big brother David Golten

Most people have never heard of Article 127 – the trigger to leaving the European Economic Area – but it is Article 50’s bigger and uglier brother. And potential litigation about Article 127 will make the Article 50 case look like a walk in the park.

Now that the Supreme Court has decided MPs need to vote before Article 50 can be triggered, attention has turned to the Brexit bill, which has been rushed through parliament to make sure the government is able to meet the March deadline for service of the UK’s “Dear John” letter to the EU.

Naturally, there are attempts to thwart the legislation. Between them, the Scottish Nationalist Party, the Greens and rebel Labour MPs tabled more amendments than there were words in the bill.

Having gone through the Commons we will see what damage the Lords tries to inflict. If peers throw it out then that would represent the biggest constitutional crisis since 1909, when they refused to approve a budget.

The proposal made then by David Lloyd George, the prime minister, was that if they did not make the law he would create 400 new peers to do his bidding. The law went through.

But if you think you are witnessing a battle now, think again. Once Article 50 is triggered the fighting will really start. It will be about the type of Brexit we have: hard or soft. Are we going to stay in the single market or do we come out or will we be somewhere in between?

Most Brexiters and the government want a hard Brexit. If they get their way and we come out of the single market, we will need to consider how we do that.

The legal structure of the single market is contained in a treaty called the European Economic Area Agreement. Membership is open to all EU members and also to Norway, Liechtenstein and Iceland. The UK joined the EEA by signing the agreement and by enacting the European Economic Area Act.

The process by which a country leaves the EEA is set out in Article 127, similar to Article 50. Article 127 provides “each contracting party may withdraw from this agreement provided it gives at least twelve months’ notice in writing to the other contracting parties”.

The government could argue that it can trigger Article 127 under the royal prerogative. The strength of feeling in parliament and in the country about whether the UK should stay in the single market seems deeper than the feeling about membership of the EU.

When we reach this point there will be litigation over Article 127, and if the court decides as it did for Article 50 that parliament must vote then that will be the biggest political fight since the English Civil War.

David Golten is a partner at Wedlake Bell, a London law firm

Tweet of the Day

This Admin seems to have less respect for the rule of law than any in recent memory & challenges the Constitution in unprecedented ways.

Chuck Schumer @SenSchumer

Blue Bag

'Foul-mouthed' barrister back in the Twitter saddle

Twitter has its fair share of eccentric lawyer participants, and up there with the best of them is Barbara Hewson.

The 1 Gray’s Inn Square human rights specialist – who came to public prominence during the Jimmy Savile scandal, when she called for the age of consent to be lowered to 13 and for an end to “the persecution of old men” – has a robust approach to the social media site.

In the past she has fired off volleys of opinions and even vitriol at specific targets or anyone who will listen. Legal Cheek, the gossip website, named her the Bar’s most foul-mouthed lawyer after she tweeted at Martin McGuinness, the former deputy first minister of Northern Ireland, “grow up you c***”.

More recently, Hewson has been back in the public spotlight regarding a rumbling row with Sarah Phillimore, a family law junior at St John’s Chambers in Bristol. As part of that “handbags at dawn”-style dust-up, Hewson’s Twitter account was suspended.

But there’s no keeping down a barrister who is addicted to social media – and The Brief can reveal that Hewson is back in the saddle. Those who have been going through Hewson cold turkey for the past few days should immediately rush to @barbara_hewson.

A word of warning, however – prepare for initial disappointment. Hewson’s tweets are protected, with only confirmed followers allowed access to her finely honed and other thoughts.

Supreme deal for Article 50 QC winner

David Pannick’s family all rushed out to order a job lot of the “You say De Keyser, I say De Geezer” T-shirts produced after the Supreme Court hearing on Article 50, but the QC himself has bagged an even bigger prize.

Blue Bag understands that the Blackstone Chambers QC and peer – who was on the winning side in the application – managed to sharp elbow his way to the front of the queue for the original copy of the Peter Brookes cartoon that ran in The Times on the day after the court handed down its landmark judgment.

Readers will remember that Brookes highlighted three of the justices in full bottom wigs and gowns – which, while not strictly speaking accurate, is what we call poetic licence – and labelled them “The Supremes”. They were singing an adapted version of the 1965 Motown hit, You Can’t Hurry Love with the lyrics: “You can’t hurry Brexit/ No, you just have to wait …”

Elsewhere in the world of legal profession and memorabilia, Michael Gove, the former lord chancellor, made his usual spirited rallying cry in favour of leaving the EU at a Times Law debate this week on the implications of the Supreme Court ruling.

Earlier in January Gove had bagged a scoop for The Times (he is now an occasional columnist) by interviewing Donald Trump on the eve of his inauguration as US president. Keen observers at the panel session noted that Gove was decked out in a pair of Trump cufflinks.

Were they a gift from the new leader of the free world? No, they weren't even from the Trump Tower gift shop. We understand they came from a friendly group of senators.

Quote of the Day

“When Neil came to our firm in 1995, he had grey hair. In fact, he was born with silver hair, as well as an inexhaustible store of Winston Churchill quotes.”