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The Times
Monday November 27 2017
The Brief
Frances Gibb Jonathan Ames
By Frances Gibb and Jonathan Ames
This morning’s must-read of all things legal, including news, comment and gossip. For more in-depth coverage, read ...
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Call for special prosecutors for mentally ill defendants
Lord chancellor urged to strip paedophiles of parental rights
Ministers seek too much post-Brexit power, warns former lord chief justice
Watchdog to lower standard of proof in barrister misconduct hearings
Labour turns to controversial chambers to investigate rape claim
Football club wins breach of contract cup tie over burgers and banqueting
Blue Bag diary: My inn’s better than yours, and other top barrister anecdotes
premium Analysis: Lawyers shouldn’t fear Brexit
premium Scalp of the week: Serious Fraud Office staff lured by plum jobs in the City
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Story of the Day
Top judge calls for no fault divorce laws
Britain’s most senior judge has thrown her weight behind The Times campaign for the law to be changed to end fault-based divorce.

Baroness Hale of Richmond (pictured), the president of the Supreme Court, said that it was time to look again at proposals made when she was at the Law Commission in the 1990s.

Under the present system, husbands or wives must be accused of being at fault — usually through adultery — to end their marriage without waiting for at least two years. This has led to claims that couples are lying about each other’s conduct to expedite divorce, and it is in any event harmful to children and the relationship between the parents, Lady Hale said.

“People do not want to do it [allege fault] and it ups the ante. It is a difficult time for everybody,” she said. Her comments, in her first interview with a national newspaper since taking her role as head of the Supreme Court, come as The Times and the Marriage Foundation charity launch a campaign, Family Matters, to reform legislation.

Marriage myth leaves millions risking ruin
Millions of unmarried couples living together are at severe financial risk as a result of the current legal system, a 6,000-strong national family justice group warns today.

The number of cohabiting couples has more than doubled from 1.5 million in 1996 to 3.3 million in 2017 and is the fastest growing family type.

However, a poll published today in The Times reveals a lack of understanding about the rights available to such couples should their relationship end. It also shows huge support for reform.

Under current law it is possible to live with someone for decades, even having children together, and then simply walk away without taking any responsibility for a former partner if the relationship should break down.

The poll finds that:
  • Two thirds of people in cohabiting relationships are unaware that there is no such as thing as “common-law marriage” in the UK;
  • Four in five cohabitants agree that the legal rights of cohabiting couples who separate are unclear;
  • Nearly four fifths of the public agree that there is a need for greater legal protection for unmarried couples upon separation;
  • And more than four fifths of the public agree that the government should take steps to ensure that unmarried cohabiting couples are aware that they do not have the same legal protection as married couples.
Cohabiting couples need more legal protection, says Baroness Hale in The Times
Scalp of the week
Serious Fraud Office staff lured by plum jobs in the City
Government prosecutors are increasingly making the switch from poacher to gamekeeper, taking home bigger pay packets as they do so, writes Linda Tsang
Read in full
News round-up
Call for special prosecutors for mentally ill defendants
Specialist prosecutors should be appointed to take charging decisions in cases of mentally ill suspects, a campaign group has said as it accused the criminal justice system of “letting down” the vulnerable.

Justice, the independent law reform group, said in a report published this morning that from first contact with the police through to sentencing, “there remain fundamental problems with the English justice system’s response to mental health”.

The organisation has called for magistrates’, youth and crown courts to have a dedicated mental health judge with “enhanced case management powers and responsibility for a case progression protocol”.

Justice went on to call for “legal capacity tests”, which assess fitness to plead and to stand trial, to be placed on a statutory footing and made available in all courts.
It also said that the so-called insanity defence should be amended to “a defence of not criminally responsible by reason of a recognised medical condition”.

According to the campaigners, sentencing guidelines on mental health and vulnerability should be created and a broader range of disposals made available to judges.

“There are still fundamental problems with the criminal justice system’s response to vulnerability and too few people receive reasonable adjustments to enable them to effectively participate in their defence,” Andrea Coomber, the director of Justice said.

Sir David Latham, the chairman of the organisation’s working party that produced the report, said its broad theme was “to ensure that vulnerability is properly identified, and where identified, properly approached so that the person either receives reasonable adjustments to give them the capacity to effectively participate in their defence, or if appropriate, is not prosecuted”.
Lord chancellor urged to strip paedophiles of parental rights
Two Welsh MPs are pressing the lord chancellor to reform the law so that those convicted of sexually abusing their children are stripped of parental responsibility rights.

The move comes as a mother told of her anguish after her husband waged a legal campaign against her in an attempt “retain control over the children that he abused”.

The woman, who lives in Wales and cannot be named, has fought expensive legal battles against her husband over her desire to take their two children on holiday and change their surnames.

Her husband, who pleaded guilty in June to sexually abusing the two children, received a 15-year prison sentence. Earlier he had also pleaded guilty to possession of indecent images of children. Some months before sentencing, his lawyers had sent letters to his wife in an attempt to prevent her from legally changing their children’s surname.

Then, weeks after beginning his prison sentence, he instructed lawyers to invoke his continuing legal parental responsibility rights to attempt to prevent his wife from taking their children overseas on holiday.

“The children want nothing more to do with him,” the mother told The Brief, “and they wanted to change their names. Yet he fought me for six months in a very expensive legal battle.” The husband relented days before the dispute over the change of name was to be heard by the family court.

Lawyers for the mother also advised that she could be arrested on return from her holiday with the children, but that it was unlikely. She went was not arrested when she came back from her holiday.

She is now leading a campaign to reform the law with backing from two Labour MPs with constituencies in Wales. On Friday they wrote to David Lidington, the lord chancellor and justice secretary, demanding that he launch a consultation on reforming the law governing parental responsibility rights.

But a family law specialist warned that convincing the lord chancellor to legislate could be difficult. Jo Edwards, the former chairwoman of the family lawyers group Resolution and a partner at the London law firm Forsters, pointed out that current legislation gave the court wide discretion.

“The Children Act 1989 covers disputes in this area, and my view is that these issues are best left to judges rather than legislating for an automatic extinguishing of the rights of parental responsibility,” she said.

Ministers ‘slow to close’ loophole in sex-grooming law
Britain’s leading children’s charity has accused the government of making a “hollow promise” about closing a legal loophole to prevent sports coaches and youth leaders from grooming young people for sex, reported The Sunday Times.

The law governing adults working in “positions of trust” at present covers teachers, hospital workers and carers, who can be prosecuted if they have a sexual relationship with a 16, 17 or 18-year-old despite the legal age of consent being 16.

The NSPCC has been campaigning for the position of trust legislation to be extended to sports coaches, Guide and Scout leaders, youth group leaders and church groups, among others. Campaigners fear that children under 16 can be groomed by predators who begin a sexual relationship once the child has passed the age of consent.
Ministers seek too much post-Brexit power, warns former lord chief
Ministers will gain “extraordinary powers” to create criminal offences carrying ten-year prison sentences with minimal scrutiny if a post-Brexit international financial crime bill is passed, a former lord chief justice has warned (writes Sean O’Neill).

The Sanctions and Anti-Money Laundering Bill proposes that ministers use secondary legislation to enshrine new crimes in law, declare what legal defences are available to anyone charged and dictate the rules of evidence that would apply in a trial.

Lord Judge (pictured), who was the lord chief justice of England and Wales between 2008 and 2013, told The Times that the bill was “a very worrying piece of legislation” and a “serious inroad” on the constitutional principle that new criminal law should be created by legislation subject to full debate in parliament.

The parliamentary website says that secondary legislation, in the form of statutory instruments and regulations, means “parliament’s room for manoeuvre is limited”. Parliamentarians are reluctant to oppose such regulations and the House of Commons has not voted one down since 1979.

Lord Judge said that the bill went further than the so-called Henry VIII powers that are being invoked in much of the EU withdrawal legislation. “You’re vesting powers in the minister today but you never know who is going to be in government in five, ten or twenty years’ time,” he said. “Henry VIII never got this power in the 1539 Act of Proclamation; they were a subservient parliament but they did not give him the power to declare new criminal offences.”

The bill seeks to set out how Britain will comply with international sanctions, anti-money laundering and terrorist financing regimes after Brexit. Lord Judge’s concerns about it have been echoed by the former Supreme Court judge Lord Hope of Craighead and the leading public law barrister Lord Pannick, QC, of Blackstone Chambers in London.
Watchdog to lower standard of proof in barrister misconduct hearings
Prosecutors of barristers accused of breaching professional rules will no longer have to meet the criminal standard of proof, the watchdog for the profession has announced.

The Bar Standards Board said that it would amend the standard of proof applied when barristers face disciplinary proceedings for professional misconduct.

It had held a public consultation on the proposal, which still needs to be approved by the Legal Services Board, the overarching regulator of all lawyers in England and Wales.

If the proposal is approved, the standard of proof will change from the criminal definition, beyond reasonable doubt, to the civil standard of on the balance of probabilities.

Board officials said that the move “will bring the Bar’s disciplinary arrangements in line with most other professions”.

It will also provide a boost to the Solicitors Regulation Authority, the watchdog with direct responsibility for the largest branch of the legal profession. The authority has for some time been battling with the Law Society, the body that represents 130,000 solicitors in England and Wales, over its aim to make the same change.

The Law Society has argued that because solicitor disciplinary tribunals can strike off lawyers and effectively bring an end to their careers, the highest standard of proof should remain in place.

The Bar Standards Board said that the revised approach would require “a period of preparation” at the Bar Tribunals and Adjudication Service. Therefore, it anticipated that the reform would not come into effect until the end of March 2019. “The revised standard will complement other changes that we have made recently to improve our rules and processes,” Sara Jagger, a BSB director, said.
Labour turns to controversial chambers to investigate rape claim
A barrister from a chambers riven by rows over its handling of internal allegations of sexual harassment is to investigate claims that a Labour Party official warned a female activist against making public a claim that she was raped.

Karon Monaghan, QC, is said to have been instructed by Labour to assess claims by a party activist, Bex Bailey.

Monaghan is an employment law specialist silk at Matrix Chambers in Gray’s Inn. She was called in 1989 and took silk in 2008. The chambers bill the lawyer as having appeared in “numerous cases at appellate level”, including at the Supreme Court.

The Sunday Times reported that Monaghan would be charged with the investigation after it emerged that a second member of the Labour Party had died from an apparent suicide amid allegations of sexual misconduct.

Her appointment is potentially controversial as Matrix is at the centre of an internal row over its handling of allegations of sexual harassment. The Times reported last month that there was disquiet among some lawyers at the chambers over the handling of an internal investigation into an alleged assault by Ben Emmerson, QC.

The barrister denies any wrongdoing and an investigation commissioned by Matrix last year and conducted by a retired High Court judge, Sir David Calvert-Smith, exonerated Emmerson, who was the former lead counsel to the independent inquiry into child sexual abuse.

Matrix has not published the report but said in a statement in December last year that it “concluded ‘without hesitation’ that Emmerson had not committed any act of sexual assault or sexual harassment”.

However, within the last fortnight, emerged that an independent review of how Matrix handled the allegation of serious sexual misconduct found “institutional failings”, including a lack of support for the woman in the case when she was distressed and in ill health.
Football club wins breach of contract cup tie over burgers and banqueting
Gillingham may be near the bottom of the League One football table, but at least the club’s supporters can get a cup of tea and a sausage roll on match days thanks to a court victory over a “bullying” American catering company.

The Times reports that the Kent side was awarded £2.4 million in damages and legal costs last week after suing Centerplate UK when the American conglomerate suddenly broke a deal to provide everything from “burgers to banqueting” at the 11,500-capacity Priestfield stadium.

In a traumatic battle with as much tension as any cup tie, the club was understood to have sold one of its top players earlier this year to ensure that it had enough cash to cover Centerplate’s legal costs in case the High Court ruling went against the Gills. But in the end, when the man in black, Judge Alistair MacDuff, blew his final whistle he found in favour of the plucky Kent side, and lambasted Centerplate’s UK players for “bullying, blackmailing and breaking undertakings”.

The David and Goliath clash — Gillingham’s best performance came in 2002-03 when the Gills finished 11th in the second tier of the league — dates back to a contract signed in 2012. The catering contract to cover everything from “burgers to banqueting” was meant to run from 2013 until 2021, but the judge agreed with the club’s lawyers, who argued that in March 2015 Centerplate decided that it could not make a profit on the deal and broke the contract.

Judge MacDuff said bluntly that Centerplate “did what may only be described as a moonlight flit, albeit that it was done during the hours of daylight”. The judge said that documents disclosed during the trial included evidence that “on the day that Centerplate exited the stadium, there was a recognition that they were repudiating the contract and that they would likely be sued”.

The judge described the company’s behaviour as “wholly unprofessional and something of which it should be ashamed”. In contrast he described Gillingham’s chairman, Paul Scally, as “admirable”. Last week the club said in a statement that “we value all of our client relationships and are disappointed by the tenor and course that this particular contract has unfortunately taken, but we are relieved to finally have resolution and to focus on our other valued partnerships”.
In Brief
  • Slavery laws will be used against gangs grooming child drug mules – The Times
  • Don't betray EU court red lines, Theresa May warned – Sunday Telegraph
  • Warning that revised dishonesty test could cause delays in trying solicitors – Legal Futures
  • Ex-police chief instructs lawyers in possible action against deputy PM – The Sunday Times
  • Iran has ‘new evidence’ against Nazanin Zaghari-Ratcliffe – The Times
  • Macron reforms French rape laws – The Times
Lawyers shouldn’t fear Brexit
Despite talk of the end of globalisation, foreign direct investment continues to grow — and the amount of legal work grows with it, says Tony Williams

Brexit has the potential to disrupt investment in and trade with the UK, but once any transition is complete, the UK has the opportunity to be a leading proponent for free trade and capital movement. If that is the case both the UK and its lawyers will be winners.
Read the full story >
Law schools should take inspiration from trainee medics
Simulated clients, lay people who test a lawyer’s bedside manner, would be a welcome addition to legal training, writes Nigel Hudson
Read in full
Tweet of the day
Counsel before me just received an unexpected #blackfriday deal: a red book. Hurled from the bench at his head afte…
Blue Bag
My inn’s better than yours, and other top barrister anecdotes
Chambers may be increasingly ditching the cramped and old inns of court for more modern offices in the City of London, but barristers still retain a romantic affection for the inn of call.

At last week’s annual dinner of the London Solicitor Litigation Association, Lady Justice Gloster, the Court of Appeal judge, noted that both she and the other speaker, Sir Paul Jenkins, the former Treasury solicitor, would be treasurers of their respective inns, Inner and Middle, next year. That coincidence prompted some competitive joshing.

Middle might have the older and more beautiful hall, the Lady Justice said, but Inner had other things, most notably that it had had "given me two husbands and Middle has not given me any. Not yet, anyway”.

Her current husband, the former High Court judge Sir Oliver Popplewell, who was in the audience, looked bemused but unconcerned.

Praising Ed Crosse, chairman of the association and a partner at the City of London law firm Simmons & Simmons, Lady Justice Gloster said that she could not find anyone who had a nasty word to say about him. “So all I can say is that he is really sweet, demonstrated by the fact that he has brought his mother and father, sister and brother here this evening, which is really cute.”

Not to be outdone on the anecdote front, Sir Paul related the tale of when Tony Blair was interviewed by the police regarding the so-called cash for honours scandal.

Sir Paul’s job was to keep a young detective constable happy until the prime minister could see him, and the lawyer duly laid on a great pile of pastries. They went untouched, but the copper managed to drink his weight in tea.

The interview got underway but after just ten minutes, and to Sir Paul's consternation, the constable appeared. “I was wondering what the prime minister had said,” he recalls — and wondering if the rest of the interview would now be under caution. To his relief the constable asked: “Is there a toilet?”
Law firm as safe space
Dominic Bray, a partner at the London law firm Lee & Thompson, was not taking calls last Friday, but before jumping to conclusions about the pub, he had a jolly good reason.

“Sorry about the delay,” he finally told Linda Tsang, a correspondent for Times Law, who had been trying to reach him, “we've been rather disrupted by this incident at Oxford Circus. We have helicopters overhead, and an office full of Selfridges staff who have fled the store.”

Bray was referring to the panic in London’s busiest shopping street that was triggered by false claims of a shooting during rush hour. “So far as I know they fled the store en masse when there were rumours of an incident, ran down to St Christopher's Place and jumped into our entrance which looks like a bit of a haven off the busy street. Brought a few shoppers with them.”

Perhaps even some potential clients …
The Churn
Former King & Wood Mallesons chief jumps to accountants
Stuart Fuller has proved that some lawyers can bounce back from almost anything — the former managing partner of King & Wood Mallesons has jumped to the top legal slot at one of the “big four” accountancy practices.

The Australian lawyer was global managing partner during arguably the firm’s most disastrous run — an 18-month stretch at the end of 2016 and beginning of this year that resulted in the firm’s London-based Europe and Middle East branch going to the wall. The London office went into administration in January, reportedly owing at least £35 million to its bankers.

Now he is said to have taken the role of head of law at KPMG Australia. “Stuart is an exceptional executive with vision, capability and a depth of connectedness in Australia and Asia that is unparalleled,” Gary Wingrove, KPMG Australia’s chief executive, enthused to the Australasian Lawyer magazine.

“We believe that his energy will not only ensure an acceleration of our success in legal advisory, but add depth and capability across a broader range of our practice areas,” Wingrove said.

London refugees from KWM will take special note of the appointment. Legal Week points out that Fuller played a crucial role in that firm’s takeover of another Square Mile fixture, SJ Berwin, in 2013.
Closing Statement
Is that a candle, sir, or are you just pleased to see the expert?
There was something of a fashion in the 1970s and 80s for prosecuting shop owners and exhibitors of films and other objects — which today would pass as harmless — for indecency and asking for their destruction (James Morton writes).

Out were trotted people who had been shocked by the objects on display and in turn the defence trotted out experts to say the objects were helpful rather than harmful.

I was waiting for a case at Marylebone magistrates’ court one afternoon when I looked in on court 2, where a former prosecutor, Edmund McDermott, was sitting. The defence had called a professor of Anglo-Saxon literature as an expert.

“And what medical qualifications have you, professor?” McDermott asked, knowing the answer full well. When the poor man replied that he had none, McDermott slowly and surely enunciated: “No … medical … qualifications,” as he wrote it down.

When pushing a purple candle in the shape of a phallus at the professor, he asked: “And what therapeutic qualities do you say this has, professor?”
I knew I need not wait for the inevitable end.

James Morton is a former criminal law solicitor and now author

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