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Monday, 11 November 2019

The latest round of nonsense about the Human Rights Act

There are many areas of our legal system which are crying out for reform. For starters, there is the almost total collapse of Criminal Justice with hundreds of courts sitting empty due to a shortage of funding. Defendants, witnesses and victims are waiting years for cases to be concluded. The Government’s answer is to pile on even more cases with no additional resources –

Then there is the increasing scandal of Access to Justice being systematically eroded by cuts in legal aid funding with important areas like Housing Law being described by the Law Society as 'catastrophic’ legal advice deserts.

As we approach the December election, what does the Government have to say about this? Nothing. But they have dragged up one of their favourite subjects – The Human Rights Act. Today they have pledged to ‘amend’ the Human Acts 1998 to prevent ‘frivolous’ prosecutions of members of the armed forces. They could not be more inaccurate if they tried.

The Human Rights Act 1998 is relatively short. Its purpose was to bring into English Law, the rights enshrined in the European Convention on Human Rights. The UK was the first country to ratify the Convention, in 1951. For those who like history here is a brief lesson –

It did not create any new rights. It gave our courts jurisdiction to hear cases arising from the Convention.

You can’t take away rights contained in the Convention without amending the whole thing. You can’t do that unilaterally! All that you can do is opt out of it altogether. This would isolate us from every nation in Europe apart from Belarus –

In short, it is nothing to do with the Human Rights Act.

The Government say they want to change the Act to prevent prosecutions of soldiers. The decision to prosecute is made by the Crown Prosecution Service. If they think that there are reasonable grounds to bring criminal proceedings, then that is a mater for them. Is the government saying that a member of the armed forces who commits a crime, thought by the CPS to justify prosecution, should be immune?

The reality is that no change in our law is required. There are enough checks and balances to ensure that there are no ‘frivolous’ prosecutions.

This is an unfortunate gimmick to earn tabloid headlines.

There is no attempt at all to address the real problems that are dragging out system into the ground.

Wednesday, 18 September 2019

Concerning a mistake, contempt of court and other errors

I have previously talked about tragic cases where lawyers, often young and inexperienced, have found themselves in difficulties when something goes wrong. In the worst cases, we have seen careers brought to an end as a result of desperate attempts to hide the error. Most recently I covered the case where deadlines had been missed by a few days and where the matter might well have been capable of resolution –

This case and others raised the importance of openness. I have said repeatedly that honesty is always the best option. My mantra has been that mistakes are not the end of the world but trying to cover up the mistakes, can be.

It was with some horror that I read the unfortunate case of paralegal, Nasrullah Mursalin. He made a mistake. He lodged a bundle of documents in an immigration case. He wrongly included papers relating to family proceedings concerning children. In the absence of permission from the Family Court this was contempt of court.  It was a genuine error. He thought he was complying with a directions order. The immigration tribunal referred him to the family court.

It came before HHJ Judge Moradifar who said –

“This breach is so serious that in my judgment it can only attract a custodial sentence.”

He was given a 6-month suspended prison sentence for a genuine misunderstanding. So much for my advice! This could well have ended any hope of a career at the bar.

Thankfully the sentence has been quashed by the Court of Appeal. The appeal judges acknowledged that it was wrong to file the sensitive documents but also that there had been no significant consequences. Baker LJ noted that the judge had not actually seen the documents in question. There was a failure to set out the details of the contempt and there was a clear suggestion that his employers were at fault. There had been procedural failings in relation to the issue of contempt that were arguably as serious as those in relation to the documents.

The sentence was set aside and the order made against Mr Mursalin was to be removed from the record.

This is clearly a correct decision which brings us back to the real world. The case again highlights the responsibilities on managers to ensure that young workers are not exposed to this type of incident. Where was the supervision? Where was the support? Why did nobody with full knowledge of the rules not check what was being filed?

If anything, this reinforces the view that legal businesses must cultivate an environment on openness which can support their staff and also avoid incidents like this occurring in the first place.

Monday, 9 September 2019

My top 5 Legal Blogs 2019

Back in 2014 I posted about my top 5 legal blogs.

We are now in 2019 and it is fair to say that the world has changed. 

At that that time we were just getting used to LASPO. Most people had not heard of #Brexit. We still had, what seemed to be, a functioning criminal justice system. As far as we knew the law was breaking but not yet broken…quite. There are also many more blogs than there used to be. Many firms now produce their own very high quality blogs. Since I finished full time legal practice I have developed a greater interests in previously unfamiliar areas of law such as criminal justice. 

Now seems a good time to stand back and look at the best blogs for lawyers in 2019.

1.      Civil Litigation Brief

Yes – 5 years after my original past, Gordon’s regular Civil Litigation update still rules the charts. It has grown into an essential point of reference for all civil litigators. Most recently we have – Proving Things 161 – Documents Being Destroyed and Experts who were of very Limited Assistance. 

The fact that this singe topic has reached that number says all you need to know about the breadth of topics that he covers. One very useful feature is ‘search this site’ which enables you to research a particular topic and also to have a nose into what others are looking for!

From Gordon’s tweets we can see some wonderful searches –

"do opposing solicitors talk to one another"

"i've been committed to prison for contempt of court in london, where am i likely to be sent?"

This blog is a daily ritual alongside toast, coffee and Naga Munchetty

2.      Nearly Legal

Solicitor, Giles Peaker’s blog about all things housing has become an equally important resource. I began life in a Law Centre and housing law was never seen as the most fashionable work, even though it affected many of the most vulnerable in society. There has been a mini explosion of firms who now want to get into Housing Disrepair work as an alternative to whiplash. They think it will be an easy source of income because of the favourable rules on costs recovery. Anyone who has done the work knows that it is a potential minefield. Giles’ wisdom and experience is an important guide for those who are serious about the work. 

His work on the Homes (Fitness for Human Habitation) Act 2018 has been invaluable –

He covers all areas of Housing Law with intellectual depth and clarity of writing that this blog should be the main reference for any lawyers who advise tenants.

3.    Secret Barrister

Most lawyers should now have read the ‘book’, which has topped best selling lists and informed the world of the scandalous demise of our criminal justice system. The blog is an equally important read.

Recent posts have included – Don’t fall for Boris Johnson’s Criminal Justice Con Tricks –

SB has also written the important, A Letter to My Younger Pupil Self –

with great words of wisdom for those who are starting out on life at bar. Trainee solicitors should also read…

It is not a daily post but every one is a gem.

4.    Costs Barrister

The whole area of legal costs has grown massively over the last few years. This began with the infamous costs wars of the early noughties. The pace of change has not eased! Solicitors are now having to get to grips with the possibility of clients claiming back success fees following Herbert v HH Law, the growing dominance of fixed costs and the shambles of QOCS – the topic which is covered in this recent post –

Andrew Hogan has long been a leading authority on costs issues and this blog is a must.

5.      Legal Cheek

Another blog which is still right up there 5 years on.

It is an antidote to the perception that the law is dull! It is aimed at those who are new (ish) to the profession. It covers important issues such as today’s post about trainee retention at a city firm –

But you are just as likely to come across a witty cartoon, quirky news and most memorably a post on photos of dogs dressed as lawyers!

I said in 2014 that I did not think that blogs would overtake the classic law books. But the quality and range of available blogs will soon call that into question…

Tuesday, 27 August 2019

Inquests, Legal Aid and time for change - now!

The lack of availability of legal aid for Inquests is in the news again. We have already had the controversy of the refusal of legal aid for the family of Molly Russell whose death was thought to be linked to Social Media. This decision was eventually reversed by the Legal Aid Agency after wide criticism –

In August 2019 there was a further outcry when families of the Manchester Bombing victims faced a similar struggle –

Now the families of victims of the 1974 Guildford Bombings have been refused Legal Aid for representation at fresh inquests. This incident led to one of our most shameful miscarriages of justice when the Guildford Four and the Maguire Seven were wrongly convicted and spent up to 16 years in prison. In the meantime, the families of the victims still wait to find out the truth.

To most people this is a case where the availability of legal aid should be beyond debate. The public bodies involved will have full representation paid for by the state. As things stand, the families will have none – unless they can pay for it, or their lawyers continue to act for nothing. 

This is due to the very restrictive rules on legal aid for inquests. There is no entitlement as such. Funding is available in ‘exceptional circumstances’. There must be a wider public interest, not in the inquest itself but in the family being represented. These are going to be long and complex inquests with significant and expensive legal representation by some of our top QCs. It is clearly in the wider public interests that the families of those who lost their lives have the same representation as the police and the MOD. Why should they be left to fend for themselves?

In this case the Coroner himself has written to Legal Aid Agency but there is no guarantee that this will make a difference. The time has surely come for a change in the rules. The charity, INQUEST has longed campaigned for a right to full, non means tested legal aid for families at inquests involving deaths that are ‘state related.’ They say on their website –

‘Without funded representation, families are denied their voice and meaningful participation in the processes of investigation, learning and accountability. This inequality of arms is an unacceptable curtailing of justice, undermining the preventative potential of inquests, to interrogate the facts and ensure harmful practices are brought to light. Inquests following state related deaths are intended to seek the truth, to expose unsafe practices and abuses of state power. But the reality faced by most families is of multiple expert legal teams defending the interests and reputations of state and corporate bodies - fighting to shut down or narrow lines of enquiry, with a primary focus on damage limitation.

There is a call to action on their site which invites readers to sign a petition. That is one small action that we can all take. This should not be controversial. Why should those who suffer most, be the only ones excluded from the process.

Sunday, 18 August 2019

Justice on the verge of collapse - (let's pile some more on top)

Anyone who has read this blog knows that I do not pretend to be an expert in criminal law. I did spend a couple of years at the start of my legal life, hanging around Liverpool Magistrates Court. It was a terrifying experience – and that was just the magistrates and some of the older lawyers who seemed to know everything, and everyone compared to me! I also spent some time sitting behind impressive barristers in the glorious setting of St Georges Hall in Liverpool*. But that is the extent of my life of crime.

But as someone who was worked as a lawyer for over 30 years, I do care about justice. I also spend far too much time on twitter…

On Friday I read several tweets about shortages of courts and the impact that this was having on our criminal justice system. Here are just some –

There are several causes. One explanation is that there are simply not enough judges available. There are part time judges; practicing lawyers who can sit as judges when needed. But this would cost the Ministry of Justice (MOJ) money – something that they do not have. This, however just scratches the surface of the collapsing criminal justice system. This was brought to the attention of the world by the Secret Barrister’s now Classic book. If you haven’t read this, stop what are doing and get hold of a copy…now!

We seem to be witnessing a systematic dismantling of our criminal justice system which is starved of resources at all levels. Defendants wait months, even years to be brought to trial. Victims wait just as long. Nervous witnesses wait just as long. Hard working, underpaid lawyers are sent home…

Our political leaders are doing something. The Home Secretary, Priti Patel has promised that criminals will feel terror at the thought of offending. We are promised more police officers, greater use of stop and search and as a result many more prosecutions. That is music to the ears of many of her fans. But it is empty rhetoric. The system is already on the verge of chaos. The answer is not to pile more and more on top.

Where is the pledge to invest in the courts system?

Where is the pledge to invest in the CPS?

Where is the pledge to invest in a proper legal aid scheme enabling all these extra defendants to be represented?

Sadly, none of these are vote winners.

The real terror is that a person accused of an offence, and a victim of crime will wait years and in many cases find themselves lost in the system that cannot cope.

*thanks to my friend Phil Longfoot for the beautiful photo of the old No1 court.

Monday, 5 August 2019

Legal Aid, Hashem Abedi and understandable anger

There is much anger in the media today about the news that Hashem Abedi, brother of Manchester bomber, Salman Abedi will have the benefit of legal aid to defend criminal proceedings brought against him. The Daily Mirror complains that he will have public funds to cover his legal costs whereas the families of victims have struggled to get legal aid for representation at the inquests.

The anger is, on this occasion, entirely understandable although the basis of the argument itself is flawed.

We have two different types of legal aid in play here. Mr. Abedi is entitled to state funded support because he is being prosecuted by the state. The Government’s Guidelines for Criminal Legal Aid say that the more serious the charge or possible consequences, the more likely it is that a Defendant will be granted legal aid. It is inevitable that he will face a trial in the Crown Court. Cases before that court are deemed to satisfy that test of seriousness. There is no real argument against Mr Abedi having legal aid for his defence. It is an entitlement for those facing action by the state. It is not deserved or earned by merit. It is there to ensure that those who might be imprisoned by the state are properly represented.

This is very different from Civil Legal Aid to enable families to be represented at an inquest. There is no automatic entitlement. Funding can only be granted in exceptional circumstances. Those circumstances are as follows –

‘In the context of an inquest, the most likely wider public benefits are the identification of dangerous practices, systematic failings or other findings that identify significant risks to the life, health or safety of other persons.'

I recently discussed this in relation to the case of Molly Russell whose family were, initially, refused legal aid despite the major concerns about the role of Social Media in her death.

The Manchester bombing inquests are clearly of major public interest. What greater example of an event that involved significant risks to life, health or safety? Of course, the families should be granted legal aid. This was an atrocity of such magnitude that no expense should be spared to ensure that the families have answers to the questions, and so that we can be re-assured that no stone will be left unturned. We want to know what can be done to ensure that this never happens again. It should be an automatic entitlement to state funding, that does not depend on the finances of the families –

The argument is not – ‘they don’t get legal aid so why should he?'

Both should be equally entitled to legal aid for different but extremely important reasons.

Monday, 29 July 2019

Introducing this year's Justice Secretary!

Almost all the Harry Potter books feature an introduction to the new Professor of Defence Against the Dark Arts. This is usually because the previous incumbent has come to a nasty end in the previous book.

All of which brings me to the latest Secretary of State for Justice, a position which is renewed with similar regularity, possibly for similar reasons. Our latest Lord Chancellor is Robert Buckland QC, who was previously, Solicitor General and then Minister of State. Firstly, it is encouraging that for the second appointment in a row we have a lawyer in the most important legal role in government! Long gone are the days of Liz Truss, who failed to speak out in defence of the judiciary following the infamous ‘Enemies of the People’. Going back even further there was that other guy; the one who gave a ferry contract to a company with no ferries.

In Robert Buckland we have a lawyer who was previously a working barrister and who spent time on the bench as a Recorder from 2009. When did we last have a Lord Chancellor who has served as a judge?  He should understand the real world of law and justice.

Indeed, he has received a major testimonial from none other than @BarristerSecret who tweeted –

‘Gosh. A sensible appointment. I’m a little lost for words.’

He also worked under David Gauke. I think that most of us would agree that he did a reasonably good job within the huge financial restrictions imposed on the MOJ. His work on prison reform was encouraging. Mr Buckland will hopefully bring some continuity to a role where it has been sadly lacking for many years. He has also previously served on the Joint Committee on Human Rights.

On the downside, he has voted against laws to promote equality and human rights –

He also supported the massive cuts to Legal Aid –

But then, he is a Conservative Minister, so we world hardly expect him to have risen through the ranks if had had not toed the line. Whilst his party remains in government, these attitudes will go with the territory.

But, on balance, he is as good as we might expect this side of a General Election.

At a time when the world of politics has never been in greater turmoil, he brings to the table an experienced pair of hands who knows far more about the real world of law, than many of his predecessors.