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The Times

Wednesday, October 19 2016

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

New Brief Premium

  • Extend fixed costs in civil litigation, says Sir Rupert Jackson
  • The taxman cometh -- cracking down on evasion at home and abroad

Plus also today ...

  • Top prosecutor backs anonymity for rape suspects
  • Solicitors blamed for charities losing millions in will donations
  • Magistrates’ courts face age time bomb
  • Hammond pressed to support greater clarity over lawyer fees
  • Government ‘dodges’ issue over legality of drone strikes
  • Head to head: Was justice done in Ched Evans case? Vera Baird, QC v John Cooper, QC
  • The Churn: Clyde & Co and KWM elect senior partners
  • Blue Bag diary: Chakrabarti does Law Society an excellent deal
  • More Blue Bag: Bar Council and CPS bang the wrong drum

Tweet us @TimesLaw with your views

Story of the Day

Top prosecutor backs anonymity for rape suspects

England’s chief prosecutor backs anonymity for rape and sex abuse suspects before charge as urged this week by Sir Cliff Richard.

Alison Saunders, the director of public prosecutions, said that prosecutors were already told not to confirm or deny the identity of people before any charging decision. “And I think that is right.”

Investigations needed to be carried out as quickly as possible and meanwhile there should not be publicity, she told The Times. “You don’t shout about it before you come to any conclusion.”

Saunders also expressed concern that investigations sometimes took too long. Sir Cliff waited for nearly two years before being told that he would not face trial after widespread publicity surrounding the raid on his home.

The Crown Prosecution Service was now trying to ensure that police investigations in sex abuse cases were much speedier and more focused through working closely with police teams. “We are trying to bring this to bear. It helps if you can say ‘this is the type of evidence we need’, or ‘that won’t help, so don’t go down this road’.”

The DPP said that, after charge, there were “competing arguments” over anonymity up to trial, but publicising names encouraged other complainants to come forward, as in the case of the publicist Max Clifford and Stuart Hall, the broadcaster. “We have to be careful not to lose that – and justice is supposed to be available and open to public scrutiny,” said Saunders.

The proposals for anonymity for suspects were made by Sir Brian Leveson in his report in 2012 on press standards, and again by the House of Commons home affairs committee in March 2015 after the case involving Paul Gambaccini (pictured).

The BBC presenter was arrested on suspicion of historical sexual abuse and was on bail for a year before the case against him was dropped in October 2014.

The Law Commission, the government’s law reform advisers, did not agree when it proposed reforms on contempt of court in 2013-14 and argued that people arrested should generally be named, subject to safeguards.

News Round Up
Solicitors blamed for charities losing millions in will donations

Charities are potentially losing millions of pounds each year because solicitors are failing to provide information on how to leave legacies, research released yesterday revealed.

Responses showed that while 35 per cent of Britons said they would like to leave a charitable legacy in their wills, only 6 per cent actually did so.

That gap is attributed to solicitors being uncomfortable with raising awareness about how to leave legacies when drafting wills for their clients.

The two-year research project, conducted by the University of Bristol for Remember A Charity, surveyed about 2,600 clients to examine how solicitors raised the issue of leaving money to charity in their wills. The researchers found that people were more likely to make a legacy to a charity when their solicitors prompted them. Those who were told that many people bequeathed money to charity in their wills were 40 per cent more likely to do so themselves when writing their first will.

Also, clients with families may be more inclined to leave a legacy when asked if they wanted to leave to charities that their family had previously supported or benefited from.

Researchers asked the public for views about solicitors raising the issue of leaving to charity when helping a client to write their will. They found that nearly 70 per cent said that they would be happy for a solicitor to raise the issue, and 46 per cent said solicitors had a duty to raise the option when discussing wills.

"Many simply don’t realise that legacy giving is an option for them,” said Rob Cope, director of Remember A Charity. He said that the “role of legal professionals is crucial in making clients aware of all the opportunities they might want to consider when writing a will”.

Cope also pointed out that legacies had “become increasingly important to UK charities in recent years”, generating about £2.5 billion annually. “Its impact on charitable services is immense” he said. “But despite being a highly philanthropic nation, a relatively small proportion of people leave a charitable bequest in their will.”

Robert Bourns, the president of the Law Society, which represents solicitors in England and Wales, said: “Solicitors have a vital role to play in this process, using our legal knowledge and experience to give our clients the reassurance that their wishes will be properly carried out.” He said the research “makes an important contribution in helping solicitors think about how we give our clients the best possible support and service in the will-writing process”.

Magistrates’ courts face age time bomb

Only one in 25 magistrates in England and Wales is younger than 40, and 80 per cent are older than 50, MPs reported yesterday.

Well over half of all magistrates in England and Wales are within ten years of the retiring age of 70. At the same time, the number of serving magistrates has almost halved in a decade, the parliamentary report revealed.

Magistrates handle more than 90 per cent of criminal cases and urgent action is needed to tackle their “serious” recruitment, diversity and workload problems, the House of Commons justice committee report concluded. The MPs’ report found that ministers had no “meaningful strategy” for developing the role of the magistracy within the criminal justice system and calls for it to be addressed “as a matter of urgency”. There is also “sufficient evidence of low morale within the magistracy to cause concern”, the MPs added.

Bob Neill, MP, the Conservative chairman of the committee, said: “It is unfortunate that the government’s evident goodwill towards the magistracy has not yet been translated into any meaningful strategy for supporting and developing it within a changing criminal justice system.”

The MPs also strongly back a doubling of magistrates’ sentencing powers from six to 12 months, which would bring many more cases into their courts. Ministers should provide a timetable for implementing that proposal, they said.

Malcolm Richardson, chairman of the Magistrates Association, said: “The select committee’s report is a vindication of our calls for magistrates to be given greater scope to do their job via 12-months sentencing jurisdiction. It represents a victory for common sense and a signal of confidence in the magistracy. “We now hope the government will heed what the committee has said by enacting dormant sentencing legislation. This will help magistrates free up the Crown Court by delivering timely and proportionate justice for victims much more quickly at the magistrates’ court level.”

A Ministry of Justice spokeswoman said: “We welcome this report and will consider its recommendations carefully.”

Government ‘dodges’ issue over legality of drone strikes

Ministers have “ducked” charges that the use of lethal drone strikes outside armed conflict is illegal, MPs said yesterday.

The joint committee on human rights said it was “disappointed” by the government’s response to its report on the use of drones for targeted killing, in which it described the issue as merely hypothetical.

The committee chairwoman, Harriet Harman, a former solicitor-general, commented: “The government has chosen not to answer the most important questions raised by our report concerning its understanding of the legal framework which governs the use of lethal drone strikes outside armed conflict.

“It is simply not good enough for the government to refuse to answer this on the grounds that it is a hypothetical question, when in the course of our inquiry it stated that it would be prepared to resort to such use of lethal force for counterterrorism purposes even outside of armed conflict.”

Watchdog presses Hammond for backing over lawyer fee clarity

Philip Hammond should use his autumn statement next month to boost efforts to create greater transparency over lawyers’ fees and to streamline legal education, the solicitors’ watchdog said yesterday.

In the first lobbying effort of its kind, the Solicitors Regulation Authority issued a public call for the chancellor to include four themes for the legal profession in his statement on November 23.

On the list, said the authority, was the need for the Treasury to “recognise the importance of opening up data and information in the legal market, so the market is better understood and businesses and consumers can make better, more informed choices, helping to meet unmet need and to grow the market”. That will be viewed as a thinly veiled reinforcement of the SRA’s view that law firm fee structures should be clearer and simpler.

Hammond should also “highlight work already underway to create the conditions that help regulators and firms to reduce unnecessary bureaucracy and barriers to entry so that law firms can grow, innovate and compete”, said the authority. That translates as pushing Hammond to back the SRA’s plans for a standardised entry exam for qualifying as solicitors.

The chancellor should, said the SRA statement, “acknowledge the wider support throughout government of measures being developed within the sector to support diversity and social mobility through the creation of different routes into the profession, as well as ensuring the high consistent standards that are fundamental to both the public interest and the solicitor brand”.

In Brief

Briggs urges barristers to embrace direct access – Legal Futures

Clifford Chance ethnic diversity in London hits six-year low – The Lawyer

Law students play system to manipulate degree results – Legal Cheek


Justice was done in Ched Evans case John Cooper, QC

The footballer Ched Evans was acquitted of rape last week by a jury of seven women and five men, who considered the evidence over two weeks at Cardiff crown court. They came to a proper verdict according to law and took little more than two hours to do so.

It is an aspect of that evidence, deployed by the defence, that has caused some controversy, fuelled by a dangerous misrepresentation of precisely what this case represents.

Let us be clear firstly what it does not represent. It does not deliver “a coach and horses” through protections carefully put in place by the criminal justice system to ensure best evidence and, more particularly, preventing the jury from being prejudiced by irrelevant material relating to the complainant’s previous sexual behaviour.

It remains the norm in the criminal courts that judges will rule inadmissible any defence attempt to introduce evidence for that purpose, an approach that has existed since the turn of the century and implemented by section 41 of the Youth Justice and Criminal Evidence Act 1999.

Those commentators suggesting otherwise are misrepresenting the reality of what goes on in courtrooms and are unnecessarily frightening complainants, who may as a result hesitate to report sex allegations to the police.

The Evans case is exceptional. Those are not my words, but those of Lady Justice Hallett in the Court of Appeal. The fresh evidence introduced by the defence team, in essence, was deployed to demonstrate similar behaviour by the complainant that could not be explained by coincidence.

As such, it tended or may have tended significantly to support the specific defence case, that of consent. It was not, as some suggest, an indiscriminate attack on the complainant’s character and had absolutely nothing to do with the assertion that the complainant had had sexual intercourse previously with other people.

We should pause for breath and remind ourselves that trial judges will not permit such evidence to be introduced without extensive legal argument, predicated on the protections inherently afforded by section 41.

It also seems to have been forgotten that the Criminal Cases Review Commission considered this case for more than ten months, concluding that there was a real possibility that the Court of Appeal might quash Evans’ conviction. They did and a jury of peers, having listened to all of the evidence, found him not guilty.

The morals of Ched Evans may be for discussion elsewhere, but as for the law, it got it right.

John Cooper, QC, is a criminal law barrister at 25 Bedford Row chambers in London


Justice was far from done in Evans case Vera Baird, QC

Fear that complainants will be accused of having sex with other men is a huge deterrent to reporting rape.

Rape defendants could bring men to testify to the complainant’s consensual sex with them to argue that she consented with him. “She’s a tart and you can’t believe a word she says” were the “twin myths” that flowed from the use of previous sexual history and in 1999 the Labour government curtailed it.

The clause in the Evans appeal was added towards the end of that bill’s parliamentary progress. It excepted from exclusion sexual history evidence if what was alleged was sex with another so similar to the rape allegation that it could not be explained by coincidence.

Lord Williams of Mostyn told the House of Lords in 1999 about the intention in enacting the clause: “The complainant’s previous involvement in sexual activity of this nature should only be introduced where it is so unusual that it might affect the jury’s view of the complainant’s behaviour at the time of the events in question.”

In the Evans case, the court determined “relevant and admissible” sex between the girl and two men when she had consumed alcohol, seemed enthusiastic, used similar encouraging words to the partner and, once with each man, used a particular, not uncommon position. Evans said she behaved similarly with him. His counsel argued that merely using similar words would have triggered the clause.

But these “similarities” are a long way from “the sort of behaviour that is so unusual that it would be wholly unreasonable to explain it as coincidental”, as set out by Lord Williams.

There is now a danger that defendants claiming consent will pursue the Evans defence. Why would a defendant not look to find whether the woman has had sex with somebody else, similar in some way, to that with the defendant? The potency of the “twin myths” is still well understood; about one in five trials has an application for sexual history to be heard, even now.

Consider the impact of such an intrusive investigation. Anonymity could not protect the Evans complainant. Consider the deterrent effect on reporting of expecting such questioning in court.

The easiest solution would be for parliament to reassert its original intention by clarifying the exemption by inserting the words “and so unusual” before “that the similarity cannot reasonably be explained as a coincidence”.

Vera Baird, QC, is a former Labour government solicitor-general and current Northumbria police and crime commissioner

Tweet of the Day

The very fact that we allow 'paid McKenzie friends' is utterly unbelievable in my view.

Karl Turner MP @KarlTurnerMP

Blue Bag

Chakrabarti does Law Society an excellent deal

With charming old-school manners, the Law Society recently sent an email “pour mémoire” reminding those invited of the date of its forthcoming “excellence awards”. While this year the bash has traded down in terms of its principal sponsor – swapping the flashiness of Maserati for the far more practical Volvo – there is still some glamour attached to the occasion, and we’re not talking about the swanky Park Lane venue in London.

Baroness Chakrabarti, CBE – currently the star attracting the most attention in the Westminster political firmament – will be the guest speaker on the night. The barrister and former director of Liberty, the human rights campaigning group, has been all over the front pages in the past few months: conducting an investigation into allegations of antisemitism in the Labour Party, then picking up a peerage (while emphasising that the two are not connected) and rounding it all off by being appointed as Labour’s shadow attorney-general.

Hardly time to pause for breath. But Chakrabarti does have time to charge up to £5,000 for speeches at corporate and public sector events, according to The Times. Her booking agency lists her as a “C”-grade act; so how much of a financial hit did the society take for bagging the star for its awards bunfight?

Nought, apparently. The Brief understands that sensibly the noble baroness did not instruct her agency to squeeze out a fee for the Law Society gig and will be appearing at the Park Lane Hilton on a pro bono basis.

Bar Council and CPS bang the wrong drum

Latest to fall into the should-have-known-better trap over the inaccurate use of gavels to depict any part of the UK legal system is … the Bar Council and the Crown Prosecution Service.

Purists have been waging a losing battle against film and television directors, the popular press and just about everyone else to hold the line against the creeping Americanisation of judicial iconography. For those who obsess about the fact that gavels are not used in UK courtrooms, it will have been especially galling to see one of the pesky critters on the programme for the Bar Council’s annual conference last weekend.

When the clanger was pointed out on social media, organisers scrambled to suggest that it was all right, really, because the shindig had an international theme – in other words, one or two lawyers from abroad were floating about.

To be fair, the Bar Council’s programme gavel was small. But the CPS had no excuse for whacking a massive gavel on, of all things, a careers guide distributed at the event. “Fight terror. Argue the case,” was the rather obtuse strapline. Perhaps it was a reference to the terror of ignorance.

The Churn

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

Clyde & Co and KWM elect senior partners

Two top-slot vacancies at City of London law firms were filled yesterday as practices with vastly different recent fortunes elected senior partners.

On the upside is Simon Konsta, who was elected in an uncontested process to take the reins at Clyde & Co, taking over from James Burns, who has become head of Americas. Clyde & Co has been riding a recent wave of considerable expansion, not least in the US, where it is viewed as arguably the only Square Mile legal practice making an impact.

With a more difficult task ahead is Michael Cziesla, who was elected as senior partner for Europe and the Middle East at King & Wood Mallesons. The Frankfurt-based partner succeeds Stephen Kon as the firm wrestles to overcome continuing integration problems resulting from the landmark deal in 2013 that saw the Sino-Australian practice take over SJ Berwin.

Elsewhere on the greasy pole …

Eight of the 40 new partners appointed recently at White & Case, the New York law firm, are based in London: Paul Brumpton, an arbitration specialist; Katja Butler in the mergers and acquisitions practice; Amanda Cowell in commercial litigation; Ben Davies in insolvency; Joanna Dimmock in fraud; Emma Foster in banking; Gareth Hodder in project finance; and Jarlath McGurran in M&A.

Also at White & Case in London, James Greig has joined the partnership from the in-house team at BNY Mellon.

Alison Fagan has moved from Addleshaw Goddard to the partnership at the City office of DLA Piper; she specialises in litigation and regulation.

Felicity Robinson has joined the specialist pre-publication law firm Reviewed & Cleared, which is part of Wiggin, the media law firm.

Further afield, Lada Shelkovnikova has moved from Al Tamimi & Company, a leading practice in Dubai, to join the partnership at Withers in the London-based firm’s Singapore office. She specialises in the hospitality sector.

Quote of the Day

“I have driven for many years now and I definitely see more people using mobile phones whilst driving than I ever have before, and to be honest the offenders seem to be older rather than the younger inexperienced drivers. What kind of example are we setting?”