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Joshua Rozenberg
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March 31, 2009

So what will the regulator do now?

City lawyers have warned their regulator that half-hearted reform of the way corporate firms are regulated would be a waste of time and money. This link will take you to the full story in tonight's Evening Standard.

Regular readers may be disappointed to learn that this is my last column for the Standard. The new editor has terminated my contract.


Posted at 12:29 PM | Comments (0)

March 30, 2009

Edmund Lawson QC

I was very sorry to learn of the untimely death of Edmund Lawson, QC. He was 60.

As this note on his chambers website says, he was a popular and brilliant barrister, admired greatly for his intelligence, generosity and humour.

His funeral will take place at 12 noon on Thursday April 2 at St Alban the Martyr, off Holborn.

Cloth Fair Chambers, of which he was a founder member, says that anyone and everyone is welcome to attend.


Posted at 01:46 PM | Comments (0)

March 28, 2009

Peace without justice or justice without peace?

In a new column for Standpoint magazine, I weigh up the chances that a serving head of state will be arrested and brought to trial at the International Criminal Court.


Posted at 09:12 AM | Comments (0)

Is Joshua happy?

Research commissioned by the internet bank Smile suggests that Judy and Joshua are the happiest names in the UK.

Dr David Holmes, a leading psychologist from Manchester Metropolitan University comments: "We know from our research that names can influence student marks so it follows that they also affect how we treat those so named. The associations we have with certain names, particularly significant namesakes, also shapes how we see ourselves and thus may have an effect on our confidence and assumed role in society. Names are like product brands in having a powerful effect on attitudes and should therefore be chosen with care."

Dr Holmes does not identify any "significant namesakes" called Joshua.


Posted at 08:06 AM | Comments (0)

March 26, 2009

The not-so-secret inquest

Can a secret inquest ever be justified after a person has died at the hands of the state? That's the question I discuss in this week's Law Society Gazette.


Posted at 11:35 PM | Comments (0)

March 25, 2009

Have the judges misjudged Jack Straw's sentences?

An extraordinary row has broken out between the circuit judges and the Lord Chancellor over his plans to set up a sentencing council. The plans are contained in the Coroners and Justice Bill, which completed its Commons stages last night and starts in the Lords on Friday.

The argument is over how much discretion judges will have once the new council is set up. As I say in tomorrow’s Law Society Gazette, the Conservative MP Edward Garnier argued this month that “resource guidelines” to be published by the new council would prevent courts from sentencing offenders to prison or ordering expensive community sentences if there was no money left.

Today, the Council of Circuit Judges described the proposals as “unnecessary, costly and unwelcome”.

Speaking for the 652 Circuit Judges in England and Wales, the council said that the Bill sought to create a sentencing “matrix”. Judges would be required to identify whether individual cases fall within restricted categories within each offence in the matrix.

“Sentencing decisions are then linked to those arbitrary categories. The Bill seeks to remove the discretion of the sentencing guidelines body by requiring it to structure guidelines in a rigid way. The discretion of the sentencing judge is thereby severely limited by the introduction of what are mandatory guidelines which the court must follow or apply in reaching the sentencing decision.”

In the judges’ view, “the imposition of mandatory guidelines may result in injustice to both offenders and victims in individual cases. For example the position of some female offenders, young offenders and those in minority or disabled groups may be prejudiced.” They were therefore “firmly opposed to the introduction of a sentencing matrix and mandatory guidelines” as set out in the Bill and amendments.

“The stated intention of these proposals is to facilitate prediction of the number of custodial sentences," the judges said. “We do not believe that this legislation will achieve that purpose when the sentencing process alone is not the sole driver and comprehensive statistics for prediction are currently available.”

These comments produced an instant response from the Ministry of Justice. “We are not proposing a sentencing matrix or any mandatory guidelines,” a spokesman said, “nor does the Government have any intention of removing judicial discretion from sentencing in individual cases.”

That was followed up within hours by a courteous but firm statement from the Lord Chancellor.

“I share the objections of the Council of Circuit Judges to what they describe as mandatory guidelines ‘which the Court must follow in reaching the sentencing decision’,” Jack Straw said. “But this is not what is contained within the Bill. Only last evening I moved a series of amendments to the original proposals better to underpin judicial discretion, and to ensure greater necessary flexibility for the sentencing court. These were agreed by the Commons.

“In any event the Bill spells out that the sentencing court can depart from the already flexible guidelines ‘where it is in the interests of justice to do so’.

“All through, in what is an important and complex area of the law, I have been seeking to implement the unanimous and majority recommendations of the working group under the chairmanship of Lord Justice Gage.”

Mr Straw said he would be happy to see council members and discuss their concerns.

Sounds like a good move for both sides.


Posted at 05:01 PM | Comments (0)

March 24, 2009

Not such a brave new world in the family courts after all

Journalists are mistaken if they think they will be allowed to report full details of family cases when restrictions are lifted next week, a High Court judge said at the weekend.

Sir Andrew McFarlane, who sits in the Family Division as Mr Justice McFarlane, told the family lawyers’ association Resolution at the weekend that although journalists would be able to attend family courts, sit in on cases and cover the legal process, it would not normally be possible for them to report the detail of cases, even after they were over.

“Whilst accredited journalists can now expect to be permitted to sit in on a private court hearing relating to children,” Sir Andrew said, “they will face tough sanctions if they report any detail of the particular case that they are observing. Reporting will be limited to the process and the gist of proceedings, rather than the detail of any particular case. In other words the reporting will be about system rather than substance.”

The Times journalist Camilla Cavendish had given her readers the impression that the press would be able “to attend and freely report upon family court proceedings, and parents will be at liberty to discuss their case before a wide public audience”, the judge noted.

“This view seems to be widely shared by the media in general with the result that, from an early stage after the Lord Chancellor’s announcement, court offices have been receiving calls from journalists seeking information about any newsworthy family cases that are due for hearing after the beginning of April.”

I am relieved to discover that my own coverage was more restrained. Writing in December of Jack Straw’s decision to allow reporters to attend all family courts from next month, I pointed out that coverage “would be subject to current reporting restrictions, which currently protect the identity of children involved in proceedings”.

Sir Andrew feared that these changes would “do little to address the very real difficulty that journalists face when confronted, for the first time, after the end of the court case, with a parent who is complaining about a miscarriage of justice.” It was highly unlikely that parents like these would tip a journalist off before the case started and invite them to exercise their right to attend and observe the proceedings.

“Under the new scheme, the journalist is in no better position than they are now to evaluate the validity of the complaints that they are hearing.”

In his view, it was “not really a question of whether the family court should be opened up, but how that can be achieved whilst at the same time meeting all the conflicting and valid reasons for maintaining the essential confidentiality of the process as a whole”.

He called for “a mechanism that permits accredited journalists, MPs and others to have access to such material from past court proceedings as would enable them to audit the family justice process against the complaints that they are hearing from the parent.

This “might simply involve the receipt of an anonymised copy of the judgment” which would do no more than give journalists in writing what they had heard in court.

He concluded that the “brave new world” starting next month would be “far more sophisticated and restricted than may at first sight have been understood by some journalists, the public at large and, for that matter, the legal profession”.


Posted at 04:30 PM | Comments (0)

Unconvicted fraud suspects won't be struck off

Tonight's Evening Standard column explains why the Government's fraud-busting measures don't go quite as far as the Attorney General had hoped.


Posted at 03:48 PM | Comments (0)

March 23, 2009

A Bill of hopes and aspirations

In recent years, we have grown used to the idea of legislation that is not intended to have any effect.

A recent example is to be found in the Compensation Act 2006, section 1 of which is supposed to deter the so-called compensation culture by merely “reflecting” the existing law. Similarly, the Government says that a clause in its current Coroners and Justice Bill making it an offence to encourage or assist suicide “does not change the scope of the current law”.

Now, it seems, we are to have a whole Act of Parliament that is not going to change the law. On that basis, as the Government frankly admits, we might be better off not having legislation in the first place.

I speak, of course, of the Government’s proposed Bill of Rights and Responsibilities, unveiled in a Green Paper today.

That sentence requires some clarification. First, there was no draft Bill in the Green Paper — only a broad discussion of what might be in one. And, secondly, Jack Straw published the Green Paper unveiling his proposed Bill of Rights and Duties — as it was then called — nearly two years ago.

“A Bill of Rights and Duties could provide explicit recognition that human rights come with responsibilities and must be exercised in a way that respects the human rights of others,” the Lord Chancellor said in July 2007. “It would build on the basic principles of the Human Rights Act, but make explicit the way in which a democratic society’s rights have to be balanced by obligations.”

There has been no discernable change in Mr Straw’s thinking on this subject over the past couple of years. But the passage of time allows him to say that it is now impossible to bring forward legislation before the next general election. Normally, ministers promise to legislate when Parliamentary time allows. This must be the first time a minister has promised not to.

Today’s Green Paper is called Rights and Responsibilities: developing our constitutional framework. It is a superbly written piece of work, its stirring phrases brimming with history, philosophy and jurisprudence.

The occasional jarring notes must surely represent ministerial amendments to an official’s well-crafted draft: otherwise, how are we to explain why “treating National Health Service and other public-sector staff with respect” is listed ahead of safeguarding children and living within environmental limits as one of the key responsibilities we all owe as members of society?

For a lawyer, though, the key section is chapter 4, which discusses the legal effect that a Bill of Rights and Responsibilities might have.

“The possible range of approaches to a Bill of Rights and Responsibilities represents a continuum,” it says. “At one end, it might take the form of a declaratory and symbolic statement. At the other lies a set of rights and responsibilities directly enforceable by the individual in the courts. Along the continuum there are options including some form of statement of principles which, endorsed by Parliament, might inform legislation... while not necessarily giving rise to enforceable individual rights.”

The paper makes it clear that giving individuals “justiciable” rights — ones that can be enforced in the courts — is the last thing the Government wants to do. That would involve empowering the judges.

“The further along the spectrum towards directly justiciable rights, the stronger is the likelihood that the courts assume a more important role in protecting individual freedoms,” it says. “Conversely, creating any Bill of Rights and Responsibilities as a purely declaratory instrument emphasises the cultural: empowering people by making them more aware of their rights and responsibilities.”

There are three options along the continuum, it seems.

1. A declaration of rights and responsibilities
“Such a declaration would be intended to have no legal effect in the courts,” the Government says. “It would enable Parliament to set out a common and explicit understanding of the values underpinning reciprocal rights and responsibilities, including the rights of individuals, the responsibilities of public authorities to respect rights and the mutual responsibilities we owe each other as members of society.”

But if it has no legal effect, why bother introducing legislation?

“Such a charter or declaration could be fully debated in Parliament but would not necessarily need the statutory force of an Act of Parliament. A non-statutory declaration could be readily amended and updated over time. Its effect would be intended as primarily political and symbolic rather than legal.”

And if the declaration didn’t really mean anything, you wouldn’t have to worry so much about what it actually said. “It would provide an opportunity to express rights and responsibilities in inspiring and motivating language, without the constraints placed by the careful drafting needed in legislative provision.”

The Government sees advantages in bringing together existing rights, even doing so would have no legal effect. “A non-justiciable declaration could include broad aspirations (for example, to the resolution of disputes by peaceful means; to tolerance and respect for others; and to safeguarding of the environment for future generations), where traditional legal sanctions would not be appropriate. Some rights, such as the rights of victims of crime to be treated with respect and dignity may also be better achieved by training and education than through legal action.”

2. General interpretative provisions
“A Bill of Rights and Responsibilities could set out general interpretative principles to be taken into account by courts when considering challenges to decisions by public authorities,” the paper says. “It could, for example, expressly refer to the principle of proportionality and the need to balance certain individual rights against the public interest and the rights of others, to the values of dignity and respect or to the fundamental principles underlying the welfare state.”

This, says the Government, would be one way of giving the new document “more legal force than a declaration without encouraging an increase in litigation” — clearly the one thing ministers are keen to avoid.

“One variation on setting out general interpretative principles,” says the paper, “would be to place a duty on public authorities to have regard to relevant principles when exercising their functions and in making decisions, thus adding an extra degree of legal effect to the type of provision or principle set out... The advantages of doing so would need to be weighed against the potential disadvantages of placing more legal duties on public authorities.”

An “extra degree of legal effect”? But public authorities are required to follow these principles anyway. What difference would this make? What difference would the Government want it to make?

3. Specific provisions enforceable in the courts
“At the far end of the spectrum of justiciability would be an approach whereby any new provisions expressed in legislation would be intended to be legally enforceable.” However, we are told, “the Government does not consider that a generally applicable model of directly legally enforceable rights or responsibilities would be the most appropriate for a future Bill of Rights and Responsibilities.”

So we know where we stand. And the Government insists that there would be no change to police powers of detention, anti-terrorism legislation, citizenship, immigration status and so on. “Any new Bill of Rights and Responsibilities should make it clear that ... the courts would have no power to strike down or re-write future legislation in these areas,” the Government adds, perhaps a trifle nervously. Nor can the judges be allowed to get their hands on resource allocation; that’s a matter for ministers and Parliament.

Curious, is it not, that the Government should feel the need to re-state the traditional division between the legislature, the executive and the judiciary in this way. Surely ministers don’t think the new Supreme Court will upset the apple-cart when it starts work in little more than six months’ time?

Little chance of that. Far from being a Bill of Rights and Responsibilities this is likely, in the words of the Liberal Democrat MP Sir Alan Beith, to be merely a Bill of hopes and aspirations.


Posted at 11:11 PM | Comments (0)

The Criminal Mind

This half-hour documentary on BBC Radio 4 examines new medical insights into the criminal mind. I join scientists as they examine the brains of violent criminals and see startling evidence of physical brain damage caused by neglect and abuse during infancy. Should offenders who suffer from this kind of brain dysfunction can be held responsible for their behaviour?

Readers who missed the broadcast tonight may listen to it again during the next seven days. Go to this page and click on "listen".


Posted at 10:00 PM | Comments (0)

March 22, 2009

Does Google’s Street View service breach privacy law?

Taking photographs of people and buildings from public roads is not, as such, illegal. But there are specific restrictions, of which the most recent is section 76 of the Counter-Terrorism Act 2008.

This now makes it an offence to publish information about current or former members of the police, armed services or intelligence services “which is of a kind likely to be useful to a person committing or preparing an act of terrorism”. It is also an offence to elicit or attempt to elicit such information.

I suppose it is just conceivable that a photograph identifying the home address of a potential terrorist target might breach this section. But simply publishing a picture of a house without identifying its occupant would surely not be unlawful. And surely the message to be drawn from recent terrorist attacks in Great Britain — though not, sadly, Northern Ireland — is that we are all terrorist targets now?

Google, though, is sufficiently worried to offer to blur people’s faces and vehicle number plates by default. People can also ask to have pictures of their homes removed, though this might draw attention to vulnerable locations. And Google seems more than willing to remove other images that appear to breach personal privacy.

It therefore seems unlikely that anyone would need to sue Google for breach of privacy. But how would the courts decide such a claim?

The modern law of privacy dates back to 2004, when Naomi Campbell, the model, and Caroline of Monaco, the princess, both successfully challenged newspapers that had published pictures of them without consent.

The effect of these and subsequent decisions on English law is that it is for a judge to decide, on the facts of each case, whether there is an overriding public interest in giving freedom of expression priority over a claimant’s reasonable expectation of privacy.

It was in the Naomi Campbell case that one of the law lords, Baroness Hale, famously remarked that there was nothing to stop anyone photographing the fashion model as she walked down the street: “readers will obviously be interested to see how she looks if and when she pops out to the shops for a bottle of milk”.

But even that simple pleasure was denied to us a month later when the European Court of Human Rights found for Princess Caroline. “The court considers that the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life — even if she appears in places that cannot always be described as secluded and despite the fact that she is well known to the public.”

It is not yet clear whether the English courts will follow this ruling and ban photographs of celebrities in public places unless they make a contribution to a public debate.

One clue — though it is only that — was a decision by the Court of Appeal last year. The judges refused to strike out a case brought by the parents of a 19-month-old toddler called David Murray against a photographer who took a picture of him while he was being taken for a walk in his buggy. It was hard to see what contribution the picture could make to a debate of general interest, the court said, even if the baby’s mother was JK Rowling, the author.

Max Mosley’s important victory over the News of the World last year does not help us very much because the newspaper did not photograph him in a public place. Rather more useful, though, is a decision of the European Court of Human Rights, delivered in January.

The court decided that Greece had breached the rights of a new-born child by permitting a profession al photographer to take photographs of the baby in the sterile area of a clinic. This happened in 1997 and the child’s parents had been trying since then to get hold of the negatives in order to prevent the photographs from being published.

Even though no photograph had been published, the Greek courts had not taken sufficient steps to guarantee the child’s right to protection of his private life. The Strasbourg judges said that the right to control one’s image required consent from the person concerned (or his parents) at the time the picture was being taken and not just at the time of possible publication.

So the only answer one can give with any certainty to the question I posed in my headline is “nobody knows”. That’s why it’s wise for Google to keep blurring its pictures.


Posted at 12:50 PM | Comments (0)

March 19, 2009

Supreme Court to become supremely powerful?

A leading judge has predicted that the law lords will become more powerful after they move from the House of Lords to the new Supreme Court in October.

Lord Neuberger, who joined the United Kingdom’s highest court in 2007, recalled in Oxford at the weekend that this had not been the Government’s intention when it decided to create a new final court of appeal for the United Kingdom.

“Ministers have emphasised that the legislation introducing the Supreme Court is not intended to alter our role or our powers in any substantive way,” he said in a speech at the Trinity College Law Society Beloff dinner.

“However, after 35 years’ experience in the legal world, there is only one law in which I have complete faith: it is the law of unintended consequences.

“More seriously, there are good empirical reasons for believing that the introduction of the Supreme Court will make a difference. Changing an institution tends to give its members an added sense of power and legitimacy — look at the consequences of the recent changes to the membership of the House of Lords.”

Lord Neuberger said that he and his fellow law lords had already reviewed their rules and procedures in preparation for the opening of the new court in little more than six months’ time.

“On top of this, resources are going into increasing public awareness and interest in the new court. New legislation; new name; new [judges’] titles; a new building; new procedures; discussions and publicity suggest to me that substantive changes may well be round the corner.”

The legislation setting up the new court reflected a change that was already occurring for other reasons, he continued.

“The balance of power between the three branches of government, legislature, executive and judiciary, seems to me to have shifted over the past few decades. The judges of the United Kingdom may be becoming rather more powerful and, indeed, more political — in the sense of being concerned with policy, not in the sense of being party political.”

European Union law enabled — and sometimes required — judges to overrule Acts of Parliament if these were in conflict with Community law. And the Human Rights Act enabled judges to declare legislation incompatible with the Human Rights Convention, leading to amendment by Parliament.

Lord Neuberger thought the “massive increase” in judicial review cases since 1970 had affected the balance of power between the executive and the judiciary.

“Of course, that is in part attributable to human rights which, when compared with more classic challenges to decisions, requires a more intense scrutiny of government action and decisions, and a scrutiny directed more to the decision and less to procedure. However, there has also been an enormous growth in traditional judicial review cases.

“And judges have been more prepared to speak out in public than in the past. The Kilmuir rules, promulgated in the 1950s, used to prevent judges from courting any sort of controversy out of court. That is now history, as evidenced by Lord Steyn’s ringing excoriation of Guantanamo Bay when he was still a serving law lord.

“The increase in judicial review and judicial outspokenness is perhaps partly attributable to the fact that judges educated in the rebellious and liberated 60s and 70s are replacing those who were brought up in the conventional and respectful 40s and 50s.”

But Lord Neuberger thought that another reason was the increase in the power of the government over Parliament. “The power of the House of Commons appears to have shrunk over the past 40 years, although not quite as much as would appear if one overlooks the work of the committees. The decline is, I think, partly due to large majorities for all but five of those years, partly because of the increase in prime-ministerial patronage, partly because of the sheer volume of legislation, and partly because of our somewhat antiquated governmental structures.

“In a healthy body, when one limb or one sense weakens, another often strengthens to compensate. The same seems to be true of non-totalitarian governments. So the decline of the House of Commons (which I hope will be short-lived) is, I suspect, being balanced by an increase in the power of other entities, most notably, I think, by the judiciary and the press.”

However, Lord Neuberger hoped that increased judicial power would not lead to increased judicial politicisation along US lines or to increased judicial arrogance.


Posted at 04:05 PM | Comments (0)

March 17, 2009

Why US litigation is top class

My piece in tonight's Evening Standard explains why US class actions are more attractive to lawyers and investors than litigating in London.


Posted at 02:01 PM | Comments (0)

March 16, 2009

Cherie to rescue RBS investors?

Today’s Times story that Cherie Booth QC has been briefed on behalf of British pension funds who are bringing a class action against Royal Bank of Scotland in the New York courts seems to have taken her colleagues by surprise.

Matrix Chambers referred press calls to Cherie Booth’s office which, in turn, referred them back to Matrix Chambers. One of Miss Booth’s clerks then referred calls to her instructing solicitors, who put all calls through to voicemail. Eventually the solicitors put out a statement that added little to the sum of human knowledge.

Miss Booth’s office then suggested calling a spokesman for Coughlin Stoia, the California law firm involved in the case. The spokesman did not ring back — understandably, since it was the middle of the night — but by mid-afternoon the firm’s London spokesman was returning calls.

Fortunately, the firm had put out a statement last month from which it was possible to work out what was going on.

In a class action, the court must decide which claimant has “lead plaintiff” status. It’s usually the single claimant that has suffered the greatest loss, though it’s possible for a handful of claimants to be designated jointly. The lead plaintiff will appoint a team of lawyers as lead counsel. They are the lawyers who run the litigation and stand to pick up between 10% and 30% of the settlement amount, assuming that the claim is successful.

So US claimants’ firms do whatever they can to attract the biggest losers. Having a former prime minister’s wife as “special adviser” must surely help to bring in potential clients.

Couglin Stoia say they have been retained by “a group of UK, Dutch and US investors and pension funds”. On the strength of these clients, they applied for co-lead plaintiff status on Friday, shortly before expiry of the court-imposed deadline.

The firm’s application will be heard by the Southern District Court of New York and the process can take two to three months. Over the course of the next few weeks, all investors who filed their applications for lead plaintiff status within the deadline may argue that they should be appointed to this key role — either alone or with other groups of investors. The court will either approve an agreed lead counsel or select the lead counsel to bring the claim.

Since everyone in the class of investors will benefit from the legal action, the choice of lead plaintiff should make little difference. For the law firms, though, it’s the difference between picking up millions of dollars and receiving nothing.

My piece in tomorrow’s Evening Standard will explain more about US class actions.


Posted at 03:20 PM | Comments (0)

March 15, 2009

Are cyclists’ helmets really compulsory?

Cyclists are partly to blame for their injuries if they fail to wear a helmet, the Sunday Times reports today. Because of a High Court ruling, riders without head protection could have their damages cut by 15%.

But a closer look at the judgment delivered by Mr Justice Griffith Williams as long ago as January 22 shows that the cyclist who brought the case, Robert Smith, 55, from Brightlingsea, Essex, will not have his compensation reduced. This is because the judge found that Mr Smith’s serious brain injuries would not have been reduced or prevented if he had been wearing a helmet when he was hit by Michael Finch, 30, a doorman, who was riding a 600 cc sports motorcycle at “excessive speed” and “too close” to the cyclist.

More generally, though, the judge did say that “the cyclist who does not wear a helmet runs the risk of contributing to his/her injuries”. He added: “As it is accepted that the wearing of helmets may afford protection in some circumstances, it must follow that a cyclist of ordinary prudence would wear one, no matter whether on a long or short trip or whether on quiet suburban roads or on a busy main road.”

That said, it was for the defendant to prove not only that the claimant had failed to take such care of himself as would be reasonable by wearing a helmet, but also that this failure contributed to his injuries. This was what Mr Finch could not establish.

Martin Porter QC, a specialist in personal injury work and a keen road-racing cyclist, argues here that there are “reasons why a rational cyclist will, either occasionally or habitually, wish to exercise his right not to follow the optional advice that the highway code provides”.

But the QC also says that Mr Justice Griffith Williams’s comments are “arguably obiter” — which means they are not binding on other judges.

If I may offer advice as a non-cyclist and a non-lawyer, it would be that all cyclists should wear head protection. A helmet will reduce the risk of injury; it will also reduce the risk that any damages for injury are reduced because another judge has decided to follow this ruling.

It is also fair to say that this case was about an accident in 2005; helmets are more widely worn than they were four years ago, making failure to do so less excusable.

But the ruling is not quite as clear-cut as you might think from reading the newspapers.


Posted at 02:44 PM | Comments (0)

March 12, 2009

Lord Judge wants to bring back assistant recorders

I am surprised that nobody has yet reported the most important announcement to come out of the Lord Chief Justice’s conference on judicial diversity yesterday — and one, incidentally, that was not included among the many suggestions put forward by those taking part in the meeting.

If you want to become a full-time judge in England and Wales, you are expected to begin by sitting part-time for about four weeks each year. This makes good sense: you can decide if you like the work and “they” can decide whether you are any good at it.

This is particularly important for the sort of people who would not think of themselves as potential judges — especially women and those from minorities.

Until 2000, there were two types of part-time judges — recorders and assistant recorders. Assistant recorders were appointed for a fixed period of about five years, sitting for a minimum of 20 days a year. If their work was good enough, they could become full recorders after three to five years. If it was not, that was the end of their judicial careers.

Recorders are also appointed for an initial period of five years. But their appointments are automatically extended for further successive terms of five years, subject to the individual’s agreement and the upper age limit, “unless a question of cause for non-renewal is raised or the individual no longer satisfies the conditions or qualifications for appointment”.

Although one of the grounds for non-renewal is “structural change to enable recruitment of new recorders”, it’s much harder to get rid of a new part-time judge who’s just not very good at the job than it was when that person’s job would simply lapse after five years.

Why, then was the post of assistant recorder abolished in April 2000, with all assistant recorders being promoted to recorder? It was because of a ruling the previous November 1999 by the High Court of Justiciary in Edinburgh.

The Scottish court decided that temporary sheriffs — criminal judges — were not sufficiently independent of the government because their appointment was subject to renewal every year. That meant they were not the impartial tribunal required by article 6 of the Human Rights Convention. The convention, incidentally, was already enforceable in the Scottish courts at that time because of devolution: the English courts had to wait until October 2000, when the Human Rights Act took effect.

Although the decision in Starrs v Ruxton was not binding in England and Wales, the Lord Chancellor, Lord Irvine, thought it wise to follow it. One of the consequences has been that lawyers continue to sit as recorders long beyond the age when they might be considered for a full-time appointment. That means there are fewer opportunities for younger lawyers to be tried out. And it’s the younger lawyers who tend to be from minority groups.

At the conference yesterday — lavishly supported by Clifford Chance — the Lord Chief Justice announced that he would be inviting the present Lord Chancellor, Jack Straw, to reinstate the post of assistant recorder. “Having listened to the debate,” Lord Judge said at the end of the conference, “I do intend to write to the Lord Chancellor to ask him whether the rules in relation to assistant recorders — which were abolished because of the decision in Scotland — really should apply to us.”

This strikes me as a good idea. I am not for a moment suggesting that people who do not come from traditional backgrounds are not going to be as good at judging as white middle-class male barristers. It is simply that those who appoint part-time judges can afford to be more adventurous in their choices if they are not going to land us with someone who, for entirely proper reasons, has substantial security of tenure. Who knows: they could find a future black woman Lord Chief Justice working in a community law centre.


Posted at 12:33 PM | Comments (0)

Great Britain to become a democracy

My column in this week's Law Society Gazette analyses the Government's little-noticed plans to introduce individual voter registration in England, Wales and Scotland.


Posted at 10:12 AM | Comments (0)

March 10, 2009

Press setback on limitation rule

Bad news for The Times today and for all the other journalists who were hanging on its coat tails: the European Court of Human Rights has thrown out the newspaper’s challenge to a loophole in the Limitation Acts.

Under the rule, which goes back 160 years to the case of Duke of Brunswick v Harmer, an item is republished every time it is downloaded from the internet.

Times Newspapers complained that the internet publication rule breached its freedom of expression under article 10 of the Human Rights Convention by exposing journalists to ceaseless liability for libel.

But the court decided that there was no breach of Article 10 on the facts before it.

“Having regard to this conclusion,” the judges said, “it is not necessary for the Court to consider in detail the broader chilling effect allegedly created by the application of the internet publication rule in the present case.”

Pity. Still, at least the court emphasised that libel proceedings brought against a newspaper after too long a period might well give rise to a disproportionate interference with the freedom of the press under Article 10.


Posted at 05:26 PM | Comments (0)

Tesco law beats the competition

Sorry that this website has been looking a little empty recently. Tonight's column in the Evening Standard is about how Britain's biggest grocery retailer successfully challenged potential planning restrictions which, if upheld, would have limited its ability to build or extend large out-of-town supermarkets.


Posted at 01:31 PM | Comments (0)

March 04, 2009

The bright side of Sir Hugh Laddie

Friends and family of Prof Sir Hugh Laddie, the former High Court judge who resigned from the Bench and died last year at the age of 62, crowded into Middle Temple Hall tonight for what was described as a service of thanksgiving for his life and work.

Appropriately for a Jew who professed not to believe in God, it was an entirely secular occasion — so secular, in fact, that it ended with a mass whistle of Always Look on the Bright Side of Life, from Monty Python’s Life of Brian and Spamalot.

Given that Sir Hugh was the leading intellectual property lawyer of his day, it was not surprising that copies of the lyrics distributed to those present carried a request from the copyright holder that all copies should be destroyed after the singalong. Sir Hugh would have been delighted at the number of guests who unaccountably forgot to comply with this request.


Posted at 11:28 PM | Comments (0)

No genocide charge for Bashir, just as I said

The International Criminal Court has just issued an arrest warrant for the Sudanese President, Omar al-Bashir, on charges of war crimes and crimes against humanity in Darfur.

But the judges decided, by a majority of two to one, that there was insufficient evidence to support a charge of genocide.

That was what I predicted here last September. But I do not claim any particular foresight.

Everyone said at the time that genocide charges were not justified. Everyone, that is, except Luis Moreno-Ocampo, the prosecutor.


Posted at 01:26 PM | Comments (0)

Neat move by Law Society

The Law Society has avoided paying a fine of £275,000 to the Legal Services Complaints Commissioner by promising instead to spend the money on good works.

Zahida Manzoor, the commissioner, announced last June that she would be imposing the penalty because she regarded a plan submitted by the Legal Complaints Service as “inadequate to secure the effective and efficient handling of complaints”. The Legal Complaints Service is run by the solicitors’ professional body.

Today, the Law Society and the complaints commissioner announced what they called a “regulatory settlement”. Instead of paying the money into public funds, the Law Society would spend it on measures designed to improve client care:

• £100,000 will be spent on recruiting 20 consultants to work with firms that need help with complaint handling.

• £30,000 will go towards a new helpline for solicitors.

• £40,000 will be spent on a newly-recruited project manager.

• £105,000 will fund two additional places a year for five years on the diversity access scheme, enabling 10 people to become solicitors who might not otherwise have been able to join the profession.

Neat move.


Posted at 10:55 AM | Comments (0)

March 03, 2009

A €1 billion fine? Cheap at the price

There can't be many businesses that regard being fined €1 billion for endemic corruption as a successful outcome. To find out which one does, read my column in tonight's Evening Standard.


Posted at 01:13 PM | Comments (0)