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The Times

Wednesday, December 7 2016

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

Today

  • Brexit vote ‘legally irrelevant’, QC tells Supreme Court
  • Truss faces barrage from MPs over defending judges
  • Doctor ordered to pay costs in whiplash exaggeration claims
  • Newspapers launch judicial review of press regulator
  • Fresh appeal for Taliban murder marine
  • Gallafent ditched in favour of Sheldon in football abuse review
  • Law firm head accused of bullying and disability bias
  • Comment: Stop prosecuting children for ‘sexting’
  • Blue Bag diary: Brexit bundles or chambers adverts?

Plus, see our plans for Brief Premium and archive of articles so far.

Tweet us @TimesLaw with your views.

 
Story of the Day

Brexit vote ‘legally irrelevant’, QC tells Supreme Court

Theresa May has no legal power to trigger Brexit ​after a “legally irrelevant” referendum ​without parliamentary approval, the UK’s highest court was told yesterday.

Lord Pannick, QC (pictured), told 11 Supreme Court justices that ministers cannot legally use prerogative powers to invoke Article 50 to start exiting the EU. If they could, the European Communities Act 1972 – under which the UK joined the EU – would have a lesser constitutional status than the Dangerous Dogs Act, he told justices.​

The QC was opening the case for a group of claimants who want ​parliament to approve the Brexit procedure and oppose the government’s view that ministers can go ahead on the basis of the referendum ​and prerogative powers.​

Lord Pannick, on the second day of the historic hearing, said that this question of whether ministers had prerogative power to notify Article 50 to trigger the UK’s exit from the EU was the only question before the court.

​The referendum result was “legally irrelevant”, he said. Pannick went on to say: “This is not to deny any effect to the referendum. The referendum is plainly an event of considerable political significance ... but the political significance, whatever it is, is not, with respect, a matter for this court.

“It is not a matter for the court because it is irrelevant to the legal issue of whether ministers enjoy prerogative powers to set aside the 1972 Act.”

Lord Pannick told the Supreme Court justices that the case brought by Gina Miller and others was that “the prerogative cannot be used to remove rights and duties created by parliament. What parliament created only parliament can take away.”​

Earlier James Eadie, QC, closing his arguments for the government, warned the justices not to fall into the trap that parliament must approve the Brexit procedure – or they ​were risking a “highly controversial” overstepping of a constitutional line. Such a ruling would be tantamount to a new control of “the most serious kind”.

Eadie argued that the “apparent simplicity” of the case put forward by those challenging the government’s use of the prerogative “represents, we submit, a serious constitutional trap”.

Lord Keen, QC, Scotland’s advocate-general, told the court it was “perfectly clear” that the royal prerogative applied in Scotland, Wales and Northern Ireland as well as England and its use was a matter for the UK government.

With regard to Scottish devolution legislation, he added: “All foreign relations and foreign affairs, in particular all our relationships with the EU, are not within the competence of the devolved legislatures. There is no means by which you can suggest the exercise of the foreign affairs prerogative is in any way impinged or qualified by devolution legislation.”

 
 
News Round Up
Truss faces barrage from MPs over defending judges

The justice secretary Liz Truss has insisted that she often speaks out to defend the independence of the judiciary as she faced a barrage of attacks from MPs who accused her of failing in her role.

The lord chancellor was criticised for not responding quickly in defence of three High Court judges who were strongly criticised by some sections of the press after ruling that parliament must be given a vote on triggering Brexit negotiations.

The Supreme Court, which lies just across the road from parliament, is hearing the government’s appeal on the ruling. Truss said that a free press and independent judiciary were both “vital” parts of Britain’s free society. Speaking in justice questions, she told the House of Commons: “The independence of the judiciary is the cornerstone of the rule of law, vital to our constitutional freedoms. As lord chancellor, I frequently make this clear, both in private and in public.”

She faced heavy criticism from Labour and SNP MPs, who accused her of failing to do enough to publicly support the independence of the judiciary. Liz McInnes, the shadow foreign minister, said: “After the press attacks on the judiciary it took the justice secretary nearly 48 hours to release a statement.

“The former lord chief justice, Lord Judge, said of this statement: ‘I think it was a little too late, and I think it is quite a lot too little.’ Does she agree with Lord Judge, and if so will she now take the opportunity to apologise?”

Joanna Cherry, the SNP justice spokeswoman, said that Tory MPs “deprecate the judges of the European Court of Justice and the European Court of Human Rights simply for doing their jobs”. She said that this “scant respect for the rule of law” had engendered a climate that led one major newspaper to describe judges as “enemies of the people”.

Richard Burgon, the shadow justice secretary, said that Truss had not “done her duty” and spoken out early enough to defend the judiciary.

Truss defended herself, telling MPs: “It is not the job of the government or the lord chancellor to police headlines. The process is working absolutely as it should.
People have a right to bring a case to court. The government has the right to defend its position in the court. The judiciary are independent and impartial, and the press can scrutinise the process within the law.”

Doctor ordered to pay costs in whiplash exaggeration claims

A doctor has been ordered to pay insurers £40,000 in costs amid allegations that she exaggerated medical evidence in hundreds of road traffic accident whiplash claims in the first case of its kind in the UK.

Grace Kerali, a GP and medico-legal expert, was alleged to have provided “misleading or inaccurate” reports involving so-called soft-tissue injuries resulting from motoring collisions.

A leading insurance company told a judge that the evidence of exaggerated claims came to light after it reviewed more than 1,000 whiplash cases in which Kerali had provided evidence.

That review, claims Ageas, found that the average prognosis of recovery from whiplash injuries provided by Kerali was 14 months, while that of hundreds of her peers during the same period was eight months.

Lawyers for the doctor dispute those claims, maintaining that “this is an instance of an insurance company trying to shoot down a medical expert whose reports they don’t like”.

At a hearing earlier this month at Liverpool county court it was alleged that in 126 cases involving Kerali, no adult claimant received a prognosis of less than 11 months unless they had already recovered by the date of examination. The insurance company said that a claimant’s average damages in cases involving Kerali was significantly higher than cases involving her peers.

Kerali defended her reports but on the third day of the hearing in Liverpool both parties agreed to drop proceedings if Ageas’s costs were paid. The insurance company claimed £100,000 in costs and an interim award of £40,000 was made by the court. The trial judge described the case as unique, the first in which an expert witness had been ordered, or agreed, to pay the costs of an action.

Ruth Graham, a partner at BLM, the law firm that acted for Ageas, said: “The amounts being claimed in damages and treatment based on cases where Kerali was the medico-legal expert were huge, in some cases easily tripling what we would expect to see.

“When the effects of whiplash are exaggerated, it means the insurance industry can’t accurately price risk and the price of premiums goes up for everyone.”

Kerali’s legal team disputed the finding. Her law firm, Campbell & Co in London, issued a statement saying that she “decided on a commercial basis to simply bring matters to a close by agreeing to pay costs”.

The firm continued: “It is very unfair, which is why the other side are pushing the narrative, to utilise that commercial decision as a springboard to make untrue allegations about Dr Kerali being found guilty and/or suggesting there was any finding about her exaggerating anything.”

Newspapers launch judicial review of press regulator

Newspaper publishers are preparing to launch a judicial review against the decision to approve the press regulator Impress, which is funded by Max Mosley, reports Jill Sherman.

The News Media Association, which represents most national, regional and local papers, including The Times, The Daily Telegraph and the Daily Mail, claims that the decision was “unlawful”.

In a pre-action protocol letter to the press recognition panel – which approved Impress as the UK’s first state-backed press regulator in October – the association said that the new body did not meet the criteria that were set out in the Leveson inquiry into the press.

The association’s letter said that Impress, funded for the next four years by Mosley, the former motor-racing tycoon, did not fulfil the criteria that it should be an independent self-regulatory body. Mosley’s involvement made it unlawful, it said. In addition, says the letter, Impress still has only about 30 members, and therefore it did not represent the majority of the newspaper industry as set out by Leveson and it also lacked its own code of standards.

The association says its letter followed legal advice from its solicitors RPC and its counsel, Lord Pannick, QC, of Blackstone Chambers. “The NMA has been advised that it has a powerful case that the Press Recognition Panel made serious and fundamental legal errors in its recognition of Impress.”

Fresh appeal for Taliban murder marine

A Royal Marine jailed three years ago for the murder of a Taliban insurgent in Afghanistan has won the right to a fresh appeal after a campaign led by his wife, reports Deborah Haynes.

Sergeant Alexander Blackman, 42, faces the “real possibility” of seeing his murder conviction overturned, an independent review of the case concluded yesterday.

The Criminal Cases Review Commission said that it was referring the murder conviction back to the courts martial appeal court in a victory for Claire Blackman, who has campaigned continuously to raise money and support to free her husband. Blackman, also known as Marine A, was given a life sentence in 2013 with a minimum term of ten years – reduced to eight on appeal – for the “battlefield execution” of the insurgent.

He was the first serving member of the military in modern times to be convicted on such a charge. The marine, who was serving with 42 Commando, based in Plymouth, shot dead his wounded prisoner in Helmand province in September 2011.

Gallafent ditched in favour of Sheldon in football abuse review

Blackstone Chambers declined to comment yesterday evening on suggestions that the Football Association embarrassingly ditched Kate Gallafent, QC, as leader of an internal review into child abuse because of conflicts of interest.

Gallafent, an experienced lawyer in child protection issues, is also a well-known sport specialist lawyer. She has acted both for and against the FA in the past.
Her appointment to lead the review was trumpeted only last week but yesterday the FA said that she was being replaced by Clive Sheldon, QC.

In a statement, the association said: “For clarification, the FA had originally intended that Kate Gallafent, QC, would lead the review but in the light of the increased scope of the review since it was announced, and with respect to her other professional commitments, the decision was taken to appoint Clive Sheldon, QC.” Sheldon is a public law specialist at 11KBW in the Temple. He was called in 1991 and promoted to silk 20 years later.

Media reports pointed out that the FA had been criticised last week for appointing Gallafent, as not only she, but also other Blackstone barristers, routinely acted for the association.

A chambers spokesman would not comment on the FA’s change of heart.

Law firm head accused of bullying and disability bias

The head of a law firm in London bullied employees and made openly sexist comments to fellow lawyers, an employment tribunal heard yesterday as part of a discrimination claim.

Nicholas Rosenfeld, the chief executive of Leslie Franks, a specialist criminal defence firm in Kentish Town, allegedly harassed a female solicitor who was suffering from a long-term gynaecological illness. Judith Snowball alleges constructive dismissal against Rosenfeld, and has instructed one of London’s most prominent barristers to bring the claim.

Francis Hoar played a pivotal role last year in bringing an end to the regime of Lutfur Rahman, the discredited former mayor of Tower Hamlets in east London. He represented four voters in successfully prosecuting the longest election petition in English legal history that found Rahman guilty of election fraud.

In the current case against the law firm, Hoar’s client alleges that she was treated less favourably by not being allowed to conduct crown court trials, and that she was targeted and bullied because of her disability.

Although not part of Snowball’s disability claim, Hoar told the tribunal that there was a wider atmosphere of discrimination at the firm. The barrister told the three judges at the London Central employment tribunal that Rosenfeld was “prone to sexist behaviour”.

It was alleged that the senior lawyer – who launched the law firm in 2003 – once remarked to Snowball about another employee: “I fancy her; she’s a fox.” It was also alleged that Rosenfeld on one occasion gestured to another female employee and said in a suggestive manner: “She’s a very upfront girl.”

Rosenfeld strongly denies the allegations. He dismissed the suggestion of sexist remarks as “fantasy nonsense” and went on to tell the tribunal that his only interest was in ensuring his legal practice was profitable.

In response to allegations that he obsessively monitored his employees’ movements, the lawyer said that after the government’s reforms to the legal aid system, he needed to ensure his firm was run as efficiently as possible. “I was committed to protecting the staff’s salaries,” he told the tribunal. “But the flipside of that was that they had to be well supervised.”

The hearing continues.

In Brief

Brexit uncertainty prompts 800 English lawyers to join Irish roll – The Lawyer

CMS, Nabarro and Olswang offer £10,000 to future trainees if they defer – Legal Business

Solicitor who “misused” £3m is struck off – Legal Futures

 
Byline
Comment

Stop prosecuting children for ‘sexting’ David Corker

As part of hate crime awareness week in October, the Crown Prosecution Service published much-anticipated guidelines stating that “it would not usually be in the public interest to prosecute the consensual sharing of an image between two children of a similar age in a relationship”.

That much has been part of CPS rhetoric for some time, but has not until now been laid down in the guidance and its inclusion is welcomed.

However, the guidance also reserves the wide discretion of prosecutors to pursue criminal proceedings in “other scenarios, such as those involving exploitation, grooming or bullying”.

As to the practical application of this discretion, the guidance unhelpfully advises that “care should be taken”. There is no guidance as to the indicative features or the level of seriousness to be taken into account during the exercise of this care.

The vagueness leaves the door wide open for cases in which aggravating features are present. Those mentioned are in addition to cases where the conduct could fall into the scope of “causing or inciting” a child to engage in sexual activity or pornography.

These offences do not require a high evidential threshold; it is sufficient to show that the suspect contemplated or desired a particular action to take place – for example, sending an image – and it was done on the suspect’s express or implied authority or as a result of exercising control or influence. That threshold in relation to sexting could be held to be persuasive or persistent message requests for pictures from one teenager to another. Such a situation is not difficult to imagine taking place during the course of adolescent relationships. While ill advised and potentially harmful, it is questionable whether a criminal record is the appropriate solution.

Despite the promise of a move towards a more coherent strategy for dealing with this complex and highly sensitive area, it is disappointing that nothing seems to have progressed at all within the CPS. Instead, it appears to have been left to the College of Policing, in its expanded guidance note on youth-produced sexual imagery published last week, to advocate a commonsense approach.

While there is no concession on the recording of the investigation itself, it instructs officers to “consider the long-term impact of investigation and prosecution, such as labelling a child a ‘sex offender’ and potential disclosure as part of a disclosure and barring service process”. In cases where there is no evidence of “exploitation, grooming, profit motive, malicious intent or persistent behaviour”, it is considered by the College of Policing that no further action may be the most appropriate outcome.

It is hoped that these guidelines will help to ensure that a reasoned and rational approach is taken at the earliest stages of an investigation, resulting in cases of teenage misadventure never crossing the prosecutor’s desk.

David Corker is a partner at Corker Binning, a London law firm; Danielle Reece-Greenhalgh, an associate solicitor at the firm, contributed to this article

 
 
Tweet of the Day

Guaranteed to be completely wrong https://t.co/B5bSEkSNtG

Adam Wagner @AdamWagner1

 
 
Blue Bag

Brexit bundles or chambers adverts?

James Eadie, QC, will certainly be on the Christmas card list – electronic of course, in the name of environmental friendliness – at 11KBW chambers.

Eadie was front row and centre at the Supreme Court on behalf of the government on the first two days of the great Brexit Article 50 trigger case. While the attorney-general, Jeremy Wright, QC, opened proceedings, he handed over after about 15 minutes to let Eadie do the heavy lifting.

And for some reason during his submissions, the Blackstone Chambers silk mentioned his rival set no fewer than four times. One of the silks for the other side, Jason Coppel, QC, is at 11KBW, and several of the bundles required by the participants bore that high-profile logo. But did Eadie have to namecheck the opposition quite so often?

Eadie and the gee-gees

While the attorney-general made a creditable fist of his opening submissions for HMG, no one in court or watching on the telly was under any illusion that he was Mr Dynamic.

James Eadie, on the other hand, seemed acutely aware that the nation was watching and that he ought to turn in as polished and compelling a performance as possible for the punters.

“I will bear clearly in mind what I have been told,” he told the 11 justices early in his submissions, “which is that in order to maintain the broader interest, if there is any in the issues in this appeal, these submissions have to be marginally more entertaining than the one that Serenade The Stars is about to make in the 11.50 Maiden Stakes at Lingfield Park.”

And to be fair, if the government loses this action and Eadie’s career takes an unlikely turn south as a result, the silk could easily become a racing pundit.
Serenade The Stars finished a poor seventh in that race, having been pulled up before finishing.

 
 
Quote of the Day

“What a sad loss, fond memories of his anecdotes and legal academia. A talented individual that will be sadly missed.”