Month: September 2020
Obiter was shocked this week to hear some sad news about the legal profession. Apparently lawyers are the ‘least happy’ professionals in the UK, according to recruiters Badenoch & Clark. In a survey of thousands of (pretty grumpy) professionals, only 52% of lawyers said they were content. That means that even if you are not feeling down in the dumps yourself, the chances are the poor sod sitting opposite you will be. Mind you, thinking about it, solicitors do have quite a bit to be depressed about at the moment. There are the sky-high professional indemnity premiums, legal aid cuts in criminal and civil, a faltering property market making conveyancers redundant… hang on, doesn’t 52% seem a bit high?
The justice secretary launched a review today to examine the way cautions and on-the-spot fines are used by the police and Crown Prosecution Service. It follows reports that they have been inappropriately used to punish more serious offences which should be dealt with by the courts. The review will consider how the number of out-of-court disposals used by the police and the CPS has changed in recent years as crime has fallen and convictions have remained stable, and the variations in their use between areas. It will examine whether criminal justice agencies are complying with guidance on their use, including whether they are being inappropriately used for serious offences and persistent offenders. Evidence on the effectiveness of out-of-court disposals, including their effect on re-offending and on promoting public confidence, will be looked at, together with the extent to which they are complied with by offenders and how effectively they are enforced. Out-of-court disposals, such as cautions and on-the-spot fines, are intended to tackle low-level offending and anti-social behaviour that is of concern to local communities but not serious enough to merit prosecution. The review will be led by the Office for Criminal Justice Reform (OCJR) and will report jointly to the Ministry of Justice, Home Office and Attorney General’s Office. Justice secretary Jack Straw said out-of-court disposals were introduced principally to address cases where no effective action was being taken, rather than as an alternative to court. ‘However, I have been increasingly concerned about some of the reports of what seem to me to be inappropriate use of out-of-court disposals. These disposals are intended for dealing with antisocial behaviour and low-level offending that would previously have gone unpunished and not for serious, persistent or violent offenders who should always be brought before a court.’ Home secretary Alan Johnson said: ‘Out-of-court disposals are an important tool for the police and can often be the most appropriate sanction when dealing with low-level offences. However, it is vital they are used appropriately and consistently by police forces across the country.’ Attorney general Baroness Scotland QC said: ‘This review is an opportunity both to tighten up on any poor practice but also to improve public understanding of the role and value of out-of-court disposals.’ ‘Out-of-court disposals such as fixed penalties, cautions and other interventions have been available for a long time. Provided the right safeguards are in place, they provide a simple, speedy and fair way to respond to minor, uncontested offences and free up time for the police and courts to focus on more serious offences.’ Ministers will make a statement to parliament on the review in March 2010.
Mike Kennedy, Chief operating officer, CPS Your story ‘”Justice on the cheap” sparks outcry’ (See  Gazette, 18 March, 1) paints a wholly inaccurate picture of Crown Prosecution Service associate prosecutors (APs). Our cadre of APs have consistently shown that they are very effective in dealing with more straightforward criminal cases in the magistrates’ courts, freeing up lawyer-prosecutors to deal with more complex cases and associated hearings. The increased use of these valued members of staff makes best use of our skilled and experienced workforce, and allows the CPS to use its resources efficiently. APs are exercising powers granted to them by parliament and the quality of their work was commended by the independent HMCPSI report on advocacy in 2009. It is inaccurate to suggest that APs require no legal training to perform the role. To be selected each must go though a competitive exercise and show experience of casework within the criminal justice system, an aptitude for presentation, and a knowledge of criminal law, magistrates’ court practice and procedure, or possess a law degree or equivalent qualification. And before APs can become members of the Institute of Legal Executives, they must complete training and pass an independent competency assessment. Those APs selected to prosecute trials complete even further training. It is important to note that APs do not have the statutory power to prosecute trials in imprisonable offences and the CPS has no plans to seek such powers from parliament.
David McCluskey is a partner, and Catherine Fischl a trainee solicitor, at Peters & Peters Solicitors In just a few weeks the new Solicitors Regulation Authority Handbook will be released and in less than eight months the new regulatory regime comes into force. Many law firms, and alternative business structures, are only just beginning to consider what outcomes-focused regulation will really mean for their daily practices. The answer owes much to form and only a little to substance. The SRA’s outcomes-focused Handbook follows the example set by the Financial Services Authority, which began its move to more principles-based regulation (and in the process reduced the size of its handbook by about half) back in 2007. At first glance, the new slimline code seems to impose a far less hefty burden than the weightier 2007 Code of Conduct. The detailed strictures of the old rules have been replaced by an outline of the 10 mandatory ‘principles’, professional standards expected of the solicitor and firm at all times. The first six principles are broadly recognisable from rule 1 of the 2007 code. The final four are more vague, stating that you must ‘comply with your legal and regulatory obligations’, run your business ‘effectively and in accordance with proper governance and sound financial and risk management principles’, ‘encourage equality of opportunity and respect for diversity’ and ‘protect client money and assets’. These catch-all provisions seem ominously broad, but they effectively duplicate duties already imposed on solicitors through various legislative and regulatory frameworks. Their inclusion perhaps foreshadows a world where the Handbook acts as a comprehensive reference tool and a working document for those responsible for compliance. The principles are then expanded upon in ‘outcomes’ – explanations of what the successful application of these professional standards should look like to the client. Whereas previously the Code of Conduct held the practice manager’s hand every step of the way, guiding them through the complex web of rules and regulations, the new code has decided that solicitors are now grown-ups and can be trusted to go it alone and make considered decisions on how best to translate the professional principle into the successful client outcome. However, the profession has n0t been entirely cut loose. Rather than the lengthy guidance notes of old, the new Handbook lays out the expected outcomes and follows these up with a succinct list of ‘indicative behaviours’, whose presence they say ‘may’ indicate that your firm is acting in compliance with the principles. There is no overt didacticism here – the firm or organisation is, the Handbook states, free to achieve compliance in any way it wishes, though a lack of the ‘indicative behaviours’ may alert the SRA to the need to question you further on how and whether you are achieving compliance. There is also, sadly, no certainty – a firm displaying the indicative behaviours is given no assurance that it is compliant. The SRA gives itself a wide ambit when making decisions as to whether a firm has implemented sufficient compliance procedures – blind implementation of suggested procedures will not suffice. The ‘indicative behaviour’ concept is a clear example of how the new Handbook’s flexible stance is intended to move away from the one-size-fits-all model towards a more individualistic approach advocated by the Handbook’s slogan ‘freedom in practice’. Thus the sole practitioner or two-partner practice will require a much smaller and simpler conflict identification system compared to a 1,000-lawyer international firm with a designated compliance department. But while the flexibility allows smaller firms to tailor their compliance to their structure and size, the outcomes emphasis means that a thorough evaluation of the risk profile of your firm and the suitability of current systems is essential and should be undertaken as soon as possible to ensure that you are ready for the Handbook’s arrival. Firms which have not reviewed their systems recently should use the Handbook as a catalyst for getting their compliance house in order. Now is the time to dig out and dust off your old policies – do they address all the necessary issues? Do they clearly ensure compliance to all 10 principles and enable you to consistently meet the required outcomes, or is there room for error or misinterpretation? Would you be able to justify your policies in an SRA investigation? Are you sure that your carefully structured policies are being implemented by all staff? Whatever the size of firm, a broader Handbook undoubtedly necessitates more concentration on complex and specific internal policies – in one sense this is no longer about box-ticking but about creating your own boxes. Thus it is ironic that those who are already fully compliant with the old regulatory regime are, broadly speaking, unlikely to require major surgery to the substance of their compliance structures, but will still be forced to spend much time making sure those structures now speak the language of ‘principles’ and ‘outcomes’. Many will find this a frustrating task, with those most compliant justifiably complaining that the new scheme is little more than a stylistic exercise. One of the more substantial regulatory changes is that firms must designate a compliance officer for legal practice (COLP) who may be held responsible if compliance is not achieved. COLPs must take ‘all reasonable steps’ to ensure compliance with the terms and conditions of the authorised body’s authorization, and any statutory obligations of the body, its employees or its managers in relation to the carrying on of the body’s authorised activities. They are responsible for reporting to the SRA on any failure to comply with the body’s obligations as soon as reasonably practicable. They are not responsible for ensuring compliance with the SRA’s accounts rules. Yet even this is not as groundbreaking as it first appears. The guidance notes state that, even though the rules seem to impose ultimate responsibility on the COLP, the ‘existence of compliance officers in a firm…. [are] not a substitute for the firm’s and manager’s responsibilities’. The SRA has warned that firms and organisations that fail to comply will face harsh sanctions The new outcomes-focused approach, the SRA claimed in a report published in January, will be monitored through ‘targeted, proportionate, consistent supervision that varies according to different factors such as… risk profile’. The focus on a risk-based approach may bring cost-savings, but the current lack of clarity on how risks will be assessed, including the clear implication that this would have to entail some form of profiling, must be addressed to counter accusations of disproportionate targeting of minority firms. The SRA clearly states that ‘equality and diversity implications will be considered’ but to avoid another Ouseley Report they will need to ensure that their risk-assessment tools are fit for purpose. The Law Society has expressed concern over the ‘undisclosed cost of the proposals’. Firms that judge themselves at the upper end of the compliance scale now will have to spend no less time rewriting their compliance policies than firms who are failing under the current regime. One thing is clear – the SRA is keen to move to a more efficient and undoubtedly more punitive system of regulation, focusing on ‘those who can’t or won’t put things right’.
Last week was not a very good time to be a reporter – although it helped if you had never been employed by one of Rupert Murdoch’s diminishing stable of newspapers. It looks as if journalists, like solicitors, are about to lose the privilege of self-regulation – together with their jobs. But this column is not about the News of the World or any other paper that may have been obtaining information by unlawful means. It is about two rather different media stories that were overlooked last week. On Tuesday, the attorney general Dominic Grieve appeared in person before the lord chief justice to argue that the publishers of the Daily Mirror and the Sun should be fined for contempt of court. They had both published what he described as ‘exceptionally adverse and hostile’ articles about Christopher Jefferies, the retired Bristol schoolteacher who was arrested at the end of last year by police investigating the death of Joanna Yeates. What was striking about the case is that Jefferies is entirely innocent. Yeates’s landlord was released after questioning and another man, who admitted killing the landscape architect, is awaiting trial for her murder. So there is no risk that the newspapers will prejudice the trial of the man about whom they wrote. But, of course, the papers did not know that at the time. The attorney general relies on section 2(2) of the Contempt of Court Act, which deals with publications creating a substantial risk that the course of justice will be ‘seriously impeded or prejudiced’. It’s the word ‘impeded’, often overlooked, that counts here. If Jefferies had been charged with the murder, the stories that had already been printed might have made it harder for him to have gathered the evidence needed to exonerate him. That’s not just character evidence: the attorney said there was a ‘very real risk’ that local residents might have been deterred by the press reports from giving evidence about his relations with the victim and his movements at the time of the murder. The newspapers should also have realised that someone else might have been charged – as, in fact, happened. A defendant in that position might use adverse publicity about an innocent person, in what the attorney called ‘an obvious diversionary tactic’. Another problem facing Lord Judge, Lord Justice Thomas and Mr Justice Owen was that they did not have much context for the three articles complained of. When a court is asked to stop a case because of adverse publicity, it normally sees a broad selection of press reports. In this case, the judges were shown only the articles that the attorney general regarded as being in contempt of court. How do they know whether the Mirror and the Sun were, as the attorney argues, worse than all the others? And how can the court have been sure that putative jurors would have read the Mirror or the Sun? In response to the attorney’s arguments, the Mirror pointed out that no evidence of impedance had been produced. Even if the two articles published by the paper were ‘in part prejudicial’, argued Jonathan Caplan QC, ‘such prejudice is in no sense so extreme that a juror cannot be expected to disregard it’. Given that the postulated trial would have taken place nine months after the arrest, the ‘fade factor’ would have affected a notional juror’s recollection of the details. For the Sun, Adrienne Page QC argued that calling Jefferies ‘a little creepy’ or an ‘oddball’ did not suggest he had an increased propensity to commit murder. She said there was no evidence that witnesses would have been deterred from helping him. I don’t suppose I would be in contempt of court if I told readers what I thought of these arguments. But perhaps it would be courteous to wait until judgment has been delivered. So let me move on to another restriction on the media. Clause 13 of the Education Bill, if enacted, would make it a criminal offence to identify a teacher accused of criminal misconduct against a pupil at the school where the teacher works. Unless lifted by a magistrate, the restrictions would remain in place until the teacher was charged or disciplined – which might never happen. Introducing the clause in the House of Lords last month, the education minister Lord Hill of Oareford said the government wanted to give teachers ‘better protection from false allegations made by pupils, which could be used to undermine their authority and have a devastating effect on their lives’. The restrictions apply to individuals: a single tweet could land you with a fine of up to £5,000. But they will have much greater impact on the media generally. Lord Phillips of Sudbury, the solicitor Andrew Phillips, said during the bill’s committee stage last week that the clause ‘strikes at the heart of freedom of the press, law and order, and open justice’. He was supported by the Conservative peer Lord Black of Brentwood – Guy Black of the Press Complaints Commission – who described the clause as a ‘damaging precedent’ based on ‘scant evidence’. The government was not prepared to budge, although other peers were already suggesting that the restrictions should be extended to support staff and security staff in colleges – and even to staff in children’s homes and young offender institutions. Why stop there? Why not stop the press naming anyone accused of criminal conduct but not charged – someone like Christopher Jefferies, for example? It’s the thin end of a very broad wedge.
If elected chancellor of Cambridge University next week, human rights lawyer Michael Mansfield QC (pictured, centre) plans to adopt a vigorously interventionist approach to the role. Mansfield told the Gazette that government policy on admission fees ‘disregards our international [convention] obligations’ as well as the domestic commitment to human rights. He backs the legal challenge to the decision to increase tuition fees being brought by two sixth-form students, Callum Hurley and Katy Moore. The claim, which seeks the repeal of the Higher Education (Higher Amount) Regulations 2010, has permission for judicial review later this month. Mansfield’s stance puts him on a collision course with the policy adopted by the university’s governing body, Regent’s House, which voted in support of tuition fees for new undergraduates, set at £9,000 a year from 2012. In this election, Lord Sainsbury is the preferred candidate of the university’s nominations committee. Dr Ian Patterson, one of Mansfield’s nominators, confirmed that his supporters were ‘by and large in favour of free higher education, paid for by the state, and in favour of a much broader base of entrants, with a much smaller percentage of students from independent schools’. Mansfield is also concerned about the ‘erosion of autonomy’ that government policies on funding and regulation of universities represent. The electorate is near-impossible to poll with any accuracy – in addition to most academics, anyone who holds a masters degree from the university may vote, though they must do so in person. Patterson noted: ‘Mansfield has pretty substantial support, though the university establishment is pushing Sainsbury quite hard.’
Property owners are being encouraged to register a restriction requiring a solicitor to certify their identity as homeowner before their property can be sold, in the Land Registry’s latest move against property fraud. From this month, the Registry’s Form LL restriction will be free for absent property owners. The restriction requires a solicitor or conveyancer to certify they are satisfied that the person selling or mortgaging the property is the true owner. The £50 fee for owner-occupiers to register the restriction will remain. Empty properties, where the owner is abroad or in a care home, are among the most vulnerable to fraud, according to the Registry, which pays compensation to genuine owners in cases where a registered title has been fraudulently transferred. In 2010, 23 of the 71 claims it paid out for fraud and forgery involved properties with an absent owner, accounting for £2m of £7.3m paid in total. Chief registrar Malcolm Dawson said: ‘We take the issue of fraud very seriously and work closely with other organisations including the Law Society to do all we can to reduce the opportunities for fraud and to identify and take corrective action when it has happened.’ He said that since September 2009 the Registry had prevented frauds in over 100 applications, involving properties valued at more than £47m. Meanwhile, new monthly Land Registry transaction figures show that during October 2011, the number of completed house sales in England and Wales fell by 6% compared with the same month in 2010. In December 2011, the agency’s top two customers by number of transactions were licensed conveyancers – My Home Move, with 977 transactions and Countrywide Property Lawyers, with 857. Third in the league table is Stockport firm O’Neill Patient, with 418 transactions. In all, the Registry received over 916,000 applications in December 2011.
A toolkit giving practical tips on how the legal profession can track and foster social mobility was launched last week by a body representing 1.2m UK professionals. The 52-page guide from Professions for Good, a coalition of professional regulators, examines the case for social mobility and advises how regulators and firms can collect and process data. Almost all women lawyers believe that flexible working practices are key to women winning senior roles in law firms, an international survey suggests. Some 85% of respondents to the survey, commissioned by LexisNexis and the Law Society, said that the level of commitment required to reach the very top makes it difficult to have a family. Around 80% blame the demands of the job for creating a poor work-life balance. The survey, to be published today, received 1,144 responses, 90% from women. While 64% of respondents said gender diversity is an important commercial issue for their firms, only 40% said they personally supported quotas for women. Many practitioners blamed ‘bad management’ for not allowing them to benefit from the best female and male talent available. The research also showed that while more women than men were entering the profession, women were far more likely to leave practice before the age of 65. Responses to the survey came from across the globe, with 85% from ‘Anglo-connected’ countries. The survey is to be launched at the Law Society’s ‘Women in Law’ conference on International Women’s Day, 8 March.
Section 11(1) of the Immigration Act 1971, provides: ‘A person arriving in the UK by ship or aircraft shall for purposes of this act be deemed not to enter the UK unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the UK so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer; and a person who has not otherwise entered the UK shall be deemed not to do so as long as he is detained, or temporarily admitted or released while liable to detention, under the powers conferred by schedule 2 to this act.’ Article 32(1) of the Refugee Convention 1951 provides: ‘The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.’ Article 32 of the 1951 Geneva Convention relating to the Status of Refugees (1951) prohibited contracting states from expelling a refugee ‘lawfully in their territory save on grounds of national security or public order’. The issue in the instant appeal concerned the question of whether an appellant was ‘lawfully’ in the UK. The appellant in question was of Eritrean nationality. She had never lived in Eritrea and was formerly resident in Ethiopia. On 3 July 1998, the appellant came to the UK. She immediately claimed asylum on the ground that she feared persecution in both Eritrea and Ethiopia. She was granted temporary admission into the UK under paragraph 21 of schedule 2 to the 1971 act. The appellant’s claims were refused by the respondent secretary of state. The appellant was informed that the secretary of state proposed to give directions for her removal to Eritrea. The appellant appealed to an adjudicator. The adjudicator dismissed the appeal on the basis that the appellant could safely be returned to Ethiopia. The appellant appealed to the Asylum and Immigration Tribunal (the tribunal). The senior immigration judge held that the adjudicator had erred, that the appellant was a refugee and that she was entitled to international protection as her fear of persecution in Eritrea for the purposes of the Convention was well founded. He further found that the appellant’s removal to Eritrea would be unlawful as it would lead to her ill-treatment contrary to her protected rights under article 3 of the Convention. The secretary of state did not appeal against that decision. In August 2006, the secretary of state issued a ‘fresh reasons for refusal’ letter and a new notice of decision to refuse the appellant leave to enter (the August decision). Despite being recognised to be a refugee from Eritrea, the appellant was told that her claims had been examined on the basis that she was an Ethiopian national. The appellant was refused leave to enter the UK and she was notified that directions would be given for her removal to Ethiopia. The appellant started proceedings for judicial review of the August decision. The deputy judge of the High Court quashed the decision declining to grant the appellant refugee status and ordered the secretary of state to recognise her as a refugee and grant her leave to remain ( All ER (D) 221 (Dec)). In reaching that decision the deputy applied Szoma v Secretary of State for Work and Pensions  1 All ER 1, which held that the term ‘refugee’ in article 32(1) of the Convention meant someone already determined to have satisfied the article 1 definition of that term. Accordingly, the deputy judge found that the effect of the tribunal’s determination that the appellant was a refugee of itself meant that she had a right to stay in the UK under article 32 of the Convention. The Court of Appeal reversed the deputy judge’s decision, having found that article 32 applied only to a refugee who had been granted leave to enter and to stay in the UK. The appellant appealed to the Supreme Court. The issue to be considered was whether the protection of article 32 of the Convention extended to a refugee, such as the appellant, who had been temporarily admitted to the UK according to the rules of its domestic law and had engaged with the processes that its legislation provided to determine his status, but had not yet been given leave to enter or to remain in the UK. In other words, whether article 32 applied only to a refugee who had been given the right lawfully to stay in the contracting state, as its domestic law would answer that question, or whether the words ‘lawfully present in the territory’ were to be given an extended and autonomous meaning, so as to ensure that a refugee who had not yet been given a right to remain in the territory was afforded protection under article 32 that extended beyond the basic obligation under art 33 not to expel or return to a territory where his life or freedom would be threatened for a Convention reason. The appeal would be dismissed. The word ‘lawfully’ in article 32(1) of the Convention had to be taken to refer to what was to be treated as lawful according to the domestic laws of the contracting state. There was nothing in article 32(1) of the Convention which required section 11(1) of the act to be disapplied. It followed that a refugee, who was given temporary admission pending determination of her status, was not lawfully in the UK (see , ,  of the judgment). That interpretation was consistent with the fundamental principle that the power to admit and expel was a power of the sovereign state (see ,  of the judgment). In the instant case, the appellant was not lawfully in the UK. It was clear that she had not yet been given leave to enter or to remain in the UK. She was still liable to be detained and, in the words of section 11(1) of the act, she was deemed not to have entered the country. It followed that the appeal would be dismissed (see , ,  of the judgment). Adan v Secretary of State for the Home Department  2 All ER 453 applied; Bugdaycay v Secretary of State for the Home Department  1 All ER 940 considered; T v Immigration Officer  2 All ER 865 considered; Szoma v Secretary of State for the Department of Work and Pensions  1 All ER 1 distinguished. The Court of appeal, Civil Division  4 All ER 314 affirmed. Asylum – Refugee – Temporary admission R (on the application of ST (Eritrea)) v Secretary of State for the Home Department: Supreme Court (Lords Hope DP, Brown, Mance, Kerr, Clarke and Dyson, Lady Hale): 21 March 2012 Richard Drabble QC, Eric Fripp and Emma Daykin (instructed by Duncan Lewis Solicitors) for the appellant; Lisa Giovannetti QC and Rory Dunlop (instructed by the Treasury solicitor) for the secretary of state.
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