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The Times

Thursday, September 22 2016

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

Today

  • Problem-solving courts ‘steering mothers away from drugs’
  • Ex-soldiers to sue over Iraq inquiry ‘harassment’
  • Juncker was Brexiteers’ biggest asset, says ex-lord chancellor
  • City lawyers steering clear of ‘high risk’ clients, says QC
  • Law firms failing to provide customer service
  • Rehabilitation programme creates more offenders
  • Comment: Wolf-whistling and freedom of expression
  • The Churn: DLA scoops Toronto niche IP practice
  • Blue Bag diary: Brangelina triggers divorce lawyer clucking
  • More Blue Bag: Bar chairwoman in dirty protest against regulator

Tweet us @TimesLaw with your views.

 
Story of the Day

Problem-solving courts ‘steering mothers away from drugs’

Many more mothers are reunited with their children and do better at staying off drugs and alcohol after going through special problem-solving courts, research published today shows.

A five-year study of care cases that have gone through the pioneering Family Drug and Alcohol Court (FDAC) finds a significantly higher proportion of mothers are reunited with their children than in mainstream courts.

As a result, the London-based court, which was the first of its kind in the country, has reduced the number of children taken into care because of parental substance misuse compared with those in ordinary care proceedings.

The study found that 37 per cent of FDAC mothers were reunited with their children at the end of proceedings, compared with 25 per cent of mothers in mainstream courts. They experienced significantly less family disruption after being reunited over the three years after proceedings ended (51 per cent compared with 22 per cent).

The study also found that many more mothers who went through the Family Drug and Alcohol Court stopped misusing substances at the end of proceedings (46 per cent compared with 30 per cent), and more maintained that position over the next five years.

The FDAC model is being applied successfully in a number of courts and judges are keen to extend it further. Liz Truss, the new lord chancellor, has backed the idea but there is no immediate pledge for a national roll-out. However, Sir James Munby, president of the High Court family division, said on Tuesday that the courts should be rolled out nationally. Sir James said: “There must be no slowing down, no pulling back.”

 
 
News Round Up
Ex-soldiers to sue over Iraq inquiry ‘harassment’

Former army staff are set to take the Ministry of Defence to court over the alleged lack of support it provides when they face judicial inquiries.

Hilary Meredith, the founding partner of Hilary Meredith Solicitors in Wilmslow, has been instructed by clients who are currently subject to judicial process and investigations to consider a legal challenge. Meredith recently provided evidence at the defence sub-committee’s inquiry into the support offered by the Ministry of Defence to former and serving military personnel facing judicial process.

At the inquiry, MPs were told that investigators from the Iraq Historic Allegations Team (IHAT) are turning up on family doorsteps and at barracks gates demanding information or threatening arrest.

In one incident they appeared at an ex-girlfriend’s house and interviewed her on whether her former partner had tattoos, was abusive or talked in his sleep. In another case, IHAT officials arrived at a barracks and threatened to arrest an officer despite the fact he had been acquitted by an internal probe ten years earlier.

It was also alleged that witnesses had been threatened with arrest as part of the probe into alleged wrongdoing in Iraq, MPs heard.

“I passionately believe that the Ministry of Defence should be held to account when it fails our servicemen and women,” said Meredith. “[It] should be standing behind all our servicemen and women facing judicial process. A framework of support and assistance needs to be put in place.”

A Downing Street spokesman this week insisted that IHAT was independent; and said that anyone from the forces affected would receive support, including legal advice. While a spokeswoman for the MoD told The Brief: “We are committed to providing legal advice and welfare support for both current and former personnel with all of those interviewed after caution in IHAT investigations receiving publicly-funded legal advice and assistance. Our policy is always under review to ensure that we provide the right levels of support.”

It is understood that the ministry is seeking comments from former military personnel regarding its approach to inquiries.

Juncker was Brexiteers’ biggest asset, says former lord chancellor

A former Labour lord chancellor has credited Europe’s top bureaucrat with losing the Remain side more votes in the UK’s recent EU membership referendum “than any other figure”.

Jack Straw, who was justice secretary and lord chancellor for three years until 2010, lambasted Jean-Claude Juncker, the president of the European Commission, for making inflammatory statements during the Brexit campaign in the summer.

Speaking at this week’s International Bar Association annual conference in Washington DC, Straw said: “Juncker probably lost the Remain campaign more votes than any other figure. Every time he spoke, you could see votes for the Remain campaign drain away.”

While many on the Remain side have forecast serious economic suffering for the UK in the wake of the vote to leave the EU, one senior German lawyer at the conference predicted that disaster was not inevitable.

“It’s not the end of history,” said Alexander Ritvay, a partner at the law firm Noerr. “We have to get over it. Brexit might even have a positive impact.”

Ritvay told conference delegates that he expected rising interest in UK companies from foreign buyers, specifically Asian companies. And he acknowledged that choice-of-law clauses in contracts currently being drafted were unlikely to include English law for the time being. “I don’t think it will last,” he said, “but it is the case for now.”

City lawyers steering clear of ‘high risk’ clients, says QC

Lawyers and bankers are becoming so wary of falling foul of regulators that they are declining to act for “high risk” clients even though those clients are not involved in crime, a leading white-collar crime QC says.

Writing in The Times today, Jonathan Fisher, QC, of Red Lion Chambers, points out that last year lawyers and bankers filed more than 380,000 “suspicious activity reports” to the authorities on prospective clients.

“The threshold for making a report is low and many suspicions are not borne out following investigation,” writes the silk, who is also a visiting professor at the London School of Economics. Fisher goes on to claim that “a customer may suffer enormous prejudice while his innocence is being determined”.

Law firms failing to provide customer service

Nearly 40 per cent of lawyers have had no customer service training, researchers have found, amid claims that traditional law firms will lose ground to new-breed competitors because they are complacent about client satisfaction.

The survey showed that while 42 per cent of firms insisted that their fee-earners received some form of customer relations training, an equal percentage did not.
Perhaps more worrying, the survey revealed that about 19 per cent of firms had no idea whether their lawyers had received any customer relationship training.

The research – conducted by First4Lawyers, a personal injury claims handling business – did not unearth wholesale worrying results for the UK’s legal profession. About three quarters of firms said that they sought feedback from clients after completing their matters. And more than 60 per cent of respondents said that they were trying “to better understand our customers, but recognise we have some way to go”.

Third-party online feedback sites were not popular with lawyers, according to the research. Only about a quarter of respondents used sites such as TrustPilot and Feefo.

Qamar Anwar, First4Lawyers’ managing director, said that there was a “very good reason to address” issues around customer relations. He said: “The regulatory agenda is pointing very strongly towards forcing greater transparency around lawyers’ fees and quality markers with the aim of helping consumers looking for legal advice and more generally to encourage them to shop around more.”

Rehabilitation programme creates more offenders

Criminals sent on a special £1 million programme designed to cut reoffending ended up committing more crimes than others not on the scheme, a Ministry of Justice study has found.

The Times reports that 81 per cent of offenders sent on the 180 Degree scheme by organisations including police or probation services reoffended within a year compared with 69 per cent who were not on it, the study showed.

It also found that those on the scheme committed more offences – on average 4.56 each – than the 3.25 offences per person found in the control group. The 64 offenders who were sampled on the programme committed 456 offences within a year compared with 325 offences committed by the control group who were not on the scheme.

At any one time, there are between 280 and 290 offenders on the scheme. Each is given a “bespoke management plan” based on their needs.

The Ministry of Justice said that both those on the scheme and the control group were “similar offenders” and added that its findings were “statistically significant”. The ministry’s Justice Data Lab said: “The overall results show that those who took part in the scheme were more likely to reoffend and had a higher frequency of reoffences than those who did not.”

A spokesman for the police-led 180 Degree scheme, which covers Norfolk and Suffolk, said that the findings might reflect the fact that its clients were more closely watched than other offenders.

Inspector Danny Kett, of Norfolk Constabulary, who manages the 180 Degree programme, told BBC News online that although the report has only just been published it was based on “old data”.

The 64 offenders in the treatment group, who took part between 2012 and 2011, were aged between 16 and 43.

In Brief

In today’s Times Law …

Elsewhere ...

  • Transatlantic law firm restarts delayed pay reviews after Brexit vote -- The Lawyer
  • Record £4m fine for level crossing death -- The Times
  • War crimes lawyer holds meditation classes to combat stress in the workplace – London Evening Standard

Correction

The Trial of Hamlet, in which top flight barristers will wrangle over whether the Prince of Denmark should be convicted of the murder of Polonius, is on at the Wyndham's Theatre in London on November 27, 2016 and not November 21 as we reported yesterday.

 
Byline
Comment

Wolf-whistling and freedom of expression Laurence Wilkinson

Nottinghamshire police recently announced it was the first force in the country to class misogyny as a “hate crime”.

While the announcement generated a lot of interest, it didn’t amount to a technical change in the law – instead it changed the way in which incidents are recorded.

Standing up for women’s safety is a good thing. Women should feel safe everywhere. And yes, cat-calling is despicable, and the subsequent social media attacks against those who initiated the changes are completely unacceptable.

However, the updated police measures are anything but a good idea, particularly from a legal perspective. The extension of the hate crime regime is a cause for concern. For lawyers, legal certainty is crucial. Laws must be clear; if not, they are open to misapplication, exploitation and injustice.

Hate crime in the UK is not straightforward. It is defined as a crime committed that the victim or any other person perceives to have been motivated by hostility or prejudice towards a particular aspect of their identity.

This can involve criminal activity – such as assault – that is committed with an apparent bias towards a person’s race. Such a motivation may be clear, but is often heavily disputed – with “perception” acting as the trump card.

The most concerning aspect of the wider hate crime regime is so-called hate speech – unlawful speech against a person’s identity alone, which can be prosecuted as a public order offence. There are five “protected strands” which are actively monitored and reported on: disability, race, religion, gender identity and sexual orientation. Nottinghamshire police has now added misogyny to its list.

Violence against a person based on prejudice is rightly illegal. But is it right that a person should be held criminally responsible when someone perceives their spoken opinion to be offensive? Despite the European Court of Human Rights ruling that speech that is offensive, shocking or disturbing is legally protected, there is an ever increasing inclination in the UK and many other European countries to make criminal what is often termed “indecent” or “grossly offensive” speech.

The first difficulty comes in trying to define that line. Who gets to decide what speech is simply rude or ignorant, and what is deemed a hate crime?

The most effective way to prevent offence is to silence the potential offender – but at what cost? Hate speech legislation fosters an environment where fear of reprisal stifles debate, particularly on those controversial issues that most warrant discussion.

Such an approach is destined to have a chilling effect that will stop people from expressing their opinion, which is the closest you can get to outlawing someone from holding an opinion.

Laurence Wilkinson is a solicitor and legal counsel for the UK branch of ADF International, a conservative think tank based in the US

 
 
Tweet of the Day

#IBAWashington #rightnow https://t.co/j0bidjl426

Meg Strickler @Megstrickler

 
 
Blue Bag

Brangelina triggers divorce lawyer clucking

One of the great certainties in life is that the moment a couple of Hollywood stars announce they are splitting, a gaggle of lawyers will start clucking as though it was the first time in history that anyone has filed for divorce.

Brad Pitt (of Thelma & Louise and the Ocean’s franchise fame) and Angelina Jolie (now more famous for being William Hague’s best mate) are to call it quits, citing irreconcilable differences.

Hardly had The Brief had time to get over the shock before the family law brigade was on the march. First up was Ayesha Vardag, the glamorous founder of Vardags in London, who promoted her own marriage several years ago via a bespoke website.

“If it's true that Brad’s approach to disciplining the couple’s offspring is one of the reasons behind the divorce,” she said, addressing the rumour mill head on, “this could prove an extremely sensitive issue.

“It's always difficult to manage differing parenting styles when couples separate – Brad and Angelina must understand that alternative approaches don’t mean different levels of love and concern for the children.”

Zahra Pabani, from Shakespeare Martineau in Birmingham, a city that Brad and Angie are likely to associate with the one in Alabama, dashed the hopes of those eagerly anticipating a public washing of laundry. “It is likely that the now-split couple will seek to settle out of court in order to shield the children from an unpleasant divorce,” she predicted yesterday.

But the prurient could take heart from the thoughts of Sally Pike, a partner at Coffin Mew, a south coast law firm. “It appears from early press reports that [dispute over the children] is already an area of possible conflict, as Angelina is purportedly seeking sole custody of the children with a request that Brad only has visiting rights.

“This is a far cry from the joint residence arrangements that are becoming increasingly common in the UK, where neither party has sole residence and the child arrangements are focused on the children spending time with both parents. Words like ‘custody’ have been banned from the vocabulary of the divorce courts, as each parent then considers they should have the legal status of sole residence of the child.”

Claire O'Flinn of Keystone Law agreed: “The Jolie-Pitt divorce looks set to be highly acrimonious … They have shot straight to the nuclear button.”

But Jo Edwards, at Forsters, and a former chairwoman of Resolution, the family law campaigning group, attempted to lower the temperature. “Absolutely appropriately, the Jolie-Pitts will wish to protect their children from the glare of the media and the inevitable speculation there will be in coming days and weeks, and reach an agreement through a process such as mediation or arbitration which is private and enables them to tailor the outcome to their family.”

To be fair, none of these lawyers really matters, as they will be sitting in the cheap seats with the rest of us for the show. One lawyer who does matter is Laura Wasser, the so-called Disso Queen, who will be acting for Jolie.

A named partner at Wasser Cooperman & Mandles in Los Angeles, Wasser graduated from the University of California, Berkeley in 1991 before attending Loyola Law School, a private Catholic university in Los Angeles.

Three years ago Wasser published the book It doesn’t have to be that way: How to divorce without destroying your family or bankrupting yourself. Presumably, both Brad and Angelina have bedside copies.

See Quote of the Day below

Bar chairwoman in dirty protest against regulator

The war of words between the Bar Council and the Legal Services Board has gone global – and turned dirty.

Chantal-Aimée Doerries, QC, the Atkin Chambers tenant who also chairs the council, the body that represents some 15,000 barristers in England and Wales, earlier this week treated delegates at the International Bar Association’s annual conference in Washington to a detailed criticism of the umbrella regulator.

In a speech to the conference, Doerries noted that the board had recently compared its own position with other UK regulators including Ofwat – “water and sewers” – and Ofgem, which oversees gas and electricity.

“It is, to my mind,” Doerries told the conference, “evidence of the challenges that legal professionals face in the 21st century that the regulation of their profession is compared to the task of sewage regulation.” Ouch.

“Of course,” she continued, “if the sewage providers, privatised as they are, fail, government can step in. It is so obvious as to go without saying, and yet apparently not: if there is no longer a strong independent legal profession, there will be no one to step in to uphold the rule of law.”

 
 
The Churn

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

DLA scoops Toronto niche IP practice

DLA Piper, the transatlantic law firm, has taken over a niche intellectual property practice in Canada, it was revealed yesterday.

Dimock Stratton will fall under the large DLA banner from the beginning of November, according to a report on the website Legal Week. The Toronto-based firm was formed 22 years ago and is currently home to 16 lawyers.

The move comes several days after another transatlantic practice, Norton Rose Fulbright, also did a deal in Canada -- linking with Bull Housser, which is based in Vancouver.

Meanwhile, Clyde & Co, the City of London maritime, aviation and insurance specialist practice has joined an international employment law network. The firm announced yesterday that it had become the UK member of L&E Global, which was launched five years ago.

On the greasy pole …

Signature, a litigation specialist law firm in the City of London, announced that Ioannis Alexopoulos joined its partnership from September 5. He moves from the City office of Bryan Cave, a US law firm. Prior to that, Alexopoulos was the London head of litigation.

And Emma Davies, a family law specialist, has been promoted to the partnership at Nelsons Solicitors in Leicester.

 
 
Quote of the Day

“This generation's realities have evolved greatly since the previous generation's in almost every way, and that they want to get divorced cheaply and efficiently and maintain control of the process …”