Are Tipp-Ex amendments worse than fraud?

 

I was on holiday last week! I just wanted to get that particular gloat out of the way.

In the few days that I have been back we have again seen two very contrasting outcomes for lawyers who have got themselves into trouble.

The first was the case of the Solicitor and Tipp-ex –

https://www.legalfutures.co.uk/latest-news/solicitor-who-changed-dates-of-charges-with-tipp-ex-struck-off

I have to confess that I was unaware that any firms still used this 1980s style correction fluid. Nicholas St John Gething missed deadlines for registering charges with the Registrar of Companies. He amended the date on the charges using Tipp-Ex. The SDT noted that he did not seem to appreciate the seriousness of his actions. The tribunal accepted that there was little or no risk that the conduct would be repeated. He was struck off and ordered to pay costs. One thing that I can claim to have some knowledge of is Tip-Ex. I am old enough to remember the days of typewriters and carbon paper. It was a common sight to see letters containing several very distinctive Tipp-Ex corrections. It is a less than sophisticated attempt at misleading.

A contrasting outcome awaited the barrister Michael Rowan, who was convicted of fraud in 2019. He received a 6 months suspended prison sentence and had to do a period of unpaid work. He found himself before the Bar Disciplinary Tribunal and was not disbarred. He was given a suspension. According to the report in Legal Futures HHJ Meston QC observed  that “there were cases in which it has “some residual discretion” not to disbar and here there were “a number of cogent mitigating factors”

https://www.legalfutures.co.uk/latest-news/barrister-avoids-disbarment-despite-expenses-fraud-conviction

It is understandable that these differing outcomes cause confusion. A person’s career is finished because of a fairly amateurish attempt to amend a date. But a fraud conviction leads to a suspension. This brings to mind other cases such as the young solicitor who was struck off after losing a bag, despite considerable ‘cogent mitigating factors’, and a senior barrister was suspended after head butting a female colleague –

https://thestevecornforthblog.blogspot.com/2020/04/in-which-losing-briefcase-turns-out-far.html

What is going on? Is there one rule for barristers and another for solicitors?

I actually think HHJ Meston QC has got the balance exactly right. Dishonesty is a serious matter for solicitors and barristers. Removal from the profession is bound to be considered. But there should also be cases where discretion can be exercised. We can be sure that the two young solicitors who were struck would not be so stupid as to repeat their actions. Is there any real danger to the public or the reputation of the profession?

Let us hope that a similar discretion will be used in future in all cases.

 

Do these attacks suggest something sinister?

 

I have to confess that I have been ranting past myself this week. But not without cause. The ill-informed attacks on the legal profession are hardly likely to reduce the strain on my laptop keyboard, to say nothing of my blood pressure.

But after some reflection, there do seem to be early signs of something sinister afoot.  In the space of a few days, we have had the Home Secretary attacking immigration lawyers. I don’t doubt for one minute that the talk of lawyers and traffickers in the same sentence was designed to generate hostility towards those lawyers and affirm her disdain for the law generally. Then we had yesterday’s bizarre speech from the Prime Minister where he blamed ‘lefty lawyers’ for the years of court closures driven by his party in power. On top of these there was the Mail’s disgraceful and misguided attack on Duncan Lewis Solicitors whose only crime is to represent those who are weak –

https://www.duncanlewis.co.uk/news/_Attacks_on_Duncan_Lewis_Solicitors_and_legal_aid_undermine_the_rule_of_law_and_an_individual%E2%80%99s_constitutional_right_to_access_to_justice_(7_October_2020).html

All of this follows on from last year’s unlawful prorogation of parliament and the current plans to breach International Law with the Internal Markets Bill. We are seeing a growing disregard for the law alongside full on, coordinated attacks on the lawyers who are simply acting in their clients’ best interests. I am not alone in fearing that all of this is driving us towards unchallenged totalitarianism. The former President of the Supreme Court, Lord Neuberger spoke yesterday at the International Bar Association Webinar on the Internal Markets Bill –

“Once you deprive people of the right to go to court to challenge the government, you are in a dictatorship, you are in a tyranny … The right of litigants to go to court to protect their rights and ensure that the government complies with its legal obligation is fundamental to any system … You could be going down a very slippery slope.”

https://www.theguardian.com/law/2020/oct/07/brexit-strategy-puts-uk-on-slippery-slope-to-tyranny-lawyers-told

Putting things into perspective we are a long way away from those countries where lawyers put their very lives at risk by simply doing their jobs –

https://www.lawgazette.co.uk/news/iranian-human-rights-lawyer-wins-alternative-nobel-prize-from-cell-/5105837.article?adredir=1#.X3cshSOLCbM.twitter

But it is chilling even to think that we might be heading in that general direction.

The Law Society’s President Simon Davis has rightly warned that this dangerous rhetoric could actually put the physical safety of lawyers at risk – in the UK, in 2020 –

“Slinging insults at lawyers risks leading not just to verbal abuse but to lawyers being physically attacked for doing their job”

https://www.theguardian.com/global-development/2020/oct/06/home-secretarys-dangerous-rhetoric-putting-lawyers-at-risk

This is not just a worry for lawyers. It threatens to undermine the very fabric of our society. We should all be concerned about what is happening while we have our eyes elsewhere...

 

Dear Lord Chancellor

I have written a letter to Robert Buckland QC. A real one, in an envelope with a stamp! It may or may not be read but I am sending it just the same. Others might want to do the same. Someone once said that a single snowflake melts on your nose, but enough of them working together can close motorways. This is what I have sent.

Mr Robert Buckland QC,

House of Commons

London

SW1A 0AA

7^th October 2020

 

Dear Lord Chancellor,

I am writing to share serious disquiet about the virtual collapse of the Criminal Justice system and some recent political rhetoric about the cause. I have been a solicitor for 40 years. Although I rarely practiced in this area of law, it is still a matter of real concern. You will of course be familiar with the difficulties from your years at the bar and as a Recorder.

One example of the problems is the staggering delays in cases coming to trial. On many hearing days, there are courts sitting empty and unused. For example, during one week in August 2019, long before the Covid-19 pandemic, 12 out of 15 Courts in Southwark did not sit at all. During the same week, just 2 out of 6 courts in Leicester were sitting. These are just random examples. The BBC recently reported that some trials are currently being listed for 2023. In the meantime, defendants, witnesses, victims, and their families are left in limbo for years on end.  

So, we have the chaotic situation where trials are logjammed and at the same time, courts are not being used. This seems to be just one example of a system that is unable to function due to years of underfunding at all levels; from the police service, the CPS, Legal Aid, Court closures, reduced sitting days to name but a few. The impression is that justice is treated as a low priority by the government. There are not many votes in a functioning court system.

What is even more alarming is the statement by the Prime Minister on 6^th October 2020 in which he blamed the legal profession –

“We’re also backing those police up, protecting the public by changing the law to stop the early release of serious sexual and violent offenders and stopping the whole criminal justice system from being hamstrung by what the home secretary would doubtless – and rightly – call the lefty human rights lawyers, and other do-gooders.”

I have never heard anyone suggest that the shambolic state of the courts system is caused by lawyers of any political persuasion. As you know, lawyers are simply trying to do their jobs in an increasingly hostile environment. At best this seems to be an attempt to deflect attention from the real cause of the problem. At worst this looks like an attack on the legal profession in general bearing in mind other recent, unfortunate, comments made by another minister.

As Lord Chancellor, you have sworn to –

“… respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.”

I am writing to urge you to take action.

Firstly, I would ask you to address the serious issues affecting the courts and publicly correct the Prime Minister's very misleading statement. I would also invite you to publicly affirm the government’s commitment to the rule of law. The current situation is nothing short of chaotic. It also risks putting the safety of hard-working lawyers at risk when they are blamed without any evidence.

I hope to hear that you will take quick and effective action under the terms of your oath.

Yours sincerely,

The Home Secretary v The Entire Legal Profession

A few weeks ago, I talked about the tweet posted by the Home Office which attacked ‘activist lawyers’. 

https://thestevecornforthblog.blogspot.com/2020/08/concerning-home-office-tweet-spilt.html

This bizarre statement from a government Department was met with universal condemnation from across the legal profession. Law Society President Simon Davies said –

‘It is vital in a democratic society that each case is judged on merit and it is the role of the justice system to determine the validity of claims. This function is and must remain independent of government, media and public opinion.’

https://www.lawgazette.co.uk/news/home-office-accuses-activist-lawyers-of-abusing-immigration-rules/5105437.article?adredir=1

The Bar Council took an equally strong stance. Their Chair Amanda Pinto QC said –

“Irresponsible, misleading communications from the Government, around the job that lawyers do in the public interest, are extremely damaging to our society. Legal professionals who apply the law and follow Parliament’s express intention, are not “activists”. They are merely doing their jobs, enabling people to exercise their statutory rights and defend themselves against those in power. Without those lawyers, our system would crumble.”

https://www.barcouncil.org.uk/resource/bar-council-condemns-misleading-communication-by-government.html

Closer to my home, the President of Liverpool Law Society, Julie O’Hare wrote –

“The rule of law is a fundamental principle of our democracy. There is both an expectation and understanding that our government will always act in accordance with the law and that if they do not do so then part of the function of an independent legal profession has been to seek, on their clients’ behalf, to hold them to account.”

This condemnation came from all sides of the legal profession, a profession of broad political views – left, right, middle, don’t care. This is demonstrated by the number of lawyers across all parties who have served as MPs – Lloyd George, Herbert Asquith, Clement Atlee, Margaret Thatcher, Tony Blair, Ken Clarke, Dominc Grieve to name just a few. 

The Home Secretary responded to this criticism by launching the most disgraceful attack on lawyers that I have ever heard in this country. In her, otherwise lightweight, speech to the Conservative Party last week she came out with this –

“No doubt those who are well-rehearsed in how to play and profit from the broken system will lecture us on their grand theories about human rights. Those defending the broken system – the traffickers, the do-gooders, the lefty lawyers, the Labour party – they are defending the indefensible.”

Support for the Rule of Law is not a political choice. It is an essential foundation stone of a democracy. The earlier tweet was rejected by the profession as a whole. Is she saying that the entire legal profession is made up of ‘lefty lawyers’? She seems to have declared war on us all, a profession that exists to uphold the rule of law across all of society.

More chilling is her dismissal of our rights as ‘grand theories’.

Her comments about 'the indefensible' overlook the fct that nearly 75% of asylum applications succeed when appeals are taken into account.

Actually, the most telling phrase is where she insults those who help those in need as ‘do gooders’. As the Secret Barrister pointed out, those words set her very firmly against those who do good. That says far more than any ranting blog!

Law Centres go the Extra Mile - let's do the same

 

In October 1980 – 40 years ago!! - I started work at the Vauxhall Law Centre, just off Scotland Road in Liverpool. It was to be a life changing experience. In fact, it was a life changing weekend as my eldest son, now a Solicitor, was born the day before! So, what better time to post something about a case from the early days, that highlights what Law Centres have done for us?! This the case of Liverpool City Council v Irwin [1977] AC 237, that just predated my time at Vauxhall. It was a disrepair case that went all the way to the House of Lords (Supreme Court for most modern lawyers!).

The tenants lived in a property that was officially called Haigh Heights near the City Centre. It was part of a group of three known to everyone as the Piggeries. They lived up to their name. A particular problem related to ‘common parts’. They were 14 stories high. The lifts were regularly breaking down. The stairs were in a state of disrepair. There were rubbish chutes that were often blocked. They were a mess.

Early in the 1970s the tenants embarked on a rent strike. Liverpool City Council issued possession proceedings. The case was taken up by the Vauxhall Law Centre that had opened in 1973 as a joint venture between Liverpool Law Society and Liverpool City Council. The possession claim was defended, and a counterclaim was issued alleging, among other things, that Council were in breach of a covenant to maintain the ‘common parts’. There was no such statutory implied covenant at that time.

At first instance HHJ Cunliffe found in favour of the tenants. The Court of Appeal reversed this and found for the council. Lord Denning dissenting said that there was indeed an implied term that the council would take reasonable care maintain the common parts. But he found that there was no breach on the facts.

And so to the House of Lords, which firmly agreed that there was indeed an implied term. Lord Wilberforce agreed with Denning that functioning lifts and stairways were essential to the premises without which life was effectively impossible. One highlight was the comment by Lord Salmon on an argument that had been put forward on behalf of the council –

“It has been argued that the council should not be taken to have accepted
any legal obligations of any kind. After all, this was a distinguished city
council which expected its tenants happily to rely on it to treat them reason-
ably without having the temerity to expect the council to undertake any legal obligations to do so. I confess that I find this argument and similar arguments which I have often heard advanced on behalf of other organisations singularly unconvincing.”

And so, an implied term to take reasonable care of these common parts was established. From the end of the 1980s this duty has been implied by statute.

I mention this as one example of how housing law was developed by a Law Centre taking up an issue that affected a whole community. Law Centres have fought for the rights of those in need. They have also played a key role in changing difficult areas of law. They need our support. They and other agencies need us to Go the Extra Mile - https://atjf.org.uk/go-the-extra-mile-for-justice

 

The passing of a once 'long and proud history.?

 Earlier this week a Home Office source said –

"The UK has a long and proud history of offering refuge to those who need protection. Tens of thousands of people have rebuilt their lives in the UK and we will continue to provide safe and legal routes in the future.”

This was in the context of discussions, now abandoned, to relocate people seeking asylum in the UK to Ascension Island - https://www.bbc.co.uk/news/uk-politics-54349796. The plans were dropped on the basis of cost rather than a rediscovery of our once ‘long and proud history’.

Other bright ideas have including the use of oil rigs and disused ferries. The Home Office seems to be full of creative ideas about how to disown and humiliate those who come here to look for safety. Anyone coming here to find refuge is more likely to find a door slammed in their face. Barrister, Colin Yeo in his landmark book – Welcome to Britain* quotes from one notable reason for refusal in the mid 1990s –

‘The Secretary of State…considered your account of crossing the Zaire River by canoe at night to be totally implausible. The Secretary of State is aware of the size, strength and considerable dangers posed by the river such as shifting sandbanks and crocodiles.’

These clearly fictitious concerns ‘suggest that this was no reason for refusal, but rather an excuse’. Colin talks of a culture of disbelief. The bar is set so high that most cannot get over it.

There is a similar culture of disbelief that still surrounds the victims of the Windrush Scandal. They became a persecuted generation as part of a politically motivated ‘hostile environment’ because of a refusal to believe that they had lived in the UK for many years. Some literally lost their lives as a result –

https://www.theguardian.com/uk-news/2018/nov/12/windrush-11-people-wrongly-deported-from-uk-have-died-sajid-javid

Victims who claimed compensation were told that they had to prove their losses ‘beyond reasonable doubt’. All other claimants have to prove their losses on a balance of probabilities. A higher test is applied to a group that has been singled out for harsh treatment –

https://thestevecornforthblog.blogspot.com/2020/07/windrush-victims-further-scandal-of.html

The UK possibly did, at one time have a long history of offering refuge to those in need of refuge. But this is now very much ‘had’ rather than ‘has’.

Where there are legal grounds to fight refusal and removal, asylum seekers find it extremely hard to find the representation that they need. Those lawyers who do work on the front line, are dismissed as ‘activist lawyers’.

Anyone who is proud that we did once welcome those in need should be seriously disturbed by this hostility. These are mainly, frightened people who desperately seek our protection. At the very least we should be campaigning that they will have access to affordable legal representation, to a voice that can be heard.

*Biteback Publishing Ltd

2020

 

 

 

 

 

Fake Law by The Secret Barrister - A Review

 

This is the book that many of us have been waiting and calling for over the last few years. There has always been a tendency for the media and politicians to put out wildly inaccurate reports on legal matters. But it has certainly got far worse in the last few years. This has led to the creation of two parallel worlds – the one inhabited by working lawyers and judges and the one built by those who loudly promote ill-informed nonsense - Fake Law.

The Secret Barrister looks at some of the worst excesses and forensically takes them apart. Here are just a few…

She* looks at the tragic cases of Charlie Gard and Alfie Evans where there was disagreement between the parents and the treating doctors about whether to continue medical care. Both led to hysterical reporting which in turn drove groups of protestors to take direct action. There were even politicians in the USA talking about death panels in order to promote their own health care agenda. The Secret Barrister carefully explains the duty of the court and the critical importance of the welfare of the two children.

Other myths are similarly confronted. She explains the purpose of Personal Injury compensation – often to secure basic care. So, behind the media noise about a cleaner getting £9k for falling over a mop is a worker who has suffered an injury serious enough to merit that level of award.

The most powerful section, for me is where we look at the controversial topic of Human Rights which is the subject of outrageously inaccurate reporting. When Theresa May bemoaned that someone could not be deported because of their human rights she ended with – ‘The illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat.’ It turns out that she was in fact making it up. He did have a pet cat, but it was nothing to do with the decision. In fact human rights are our rights and their importance to all of us is rarely mentioned.

Don’t even get me started on legal aid!

The law is distant and complex to many. It does lend itself to false reporting and misunderstanding. This book is the most important counterbalance that I have seen. My only regret is that the book will mainly be read and praised by lawyers – most of whom do not need to be persuaded. Will it be read by reporters and ministers? I will certainly be sharing it as widely as possible and hope that others to the same.

*The Secret Barrister is anonymous. I use 'she' because I imagine a woman's voice when I am reading the books. No other reason!

This review is now available on Amazon at https://www.amazon.co.uk/gp/customer-reviews/R1B4UZ6ZDBADI0/ref=cm_cr_dp_d_rvw_ttl?ie=UTF8&ASIN=1529009944

 

This is not Kafka - A review of Welcome to Britain - Colin Yeo

Here is my review of this important and timely book. 

A few weeks ago, a comment on twitter made me choke on my coffee. This was the suggestion from the Home Office that ‘activist lawyers’ were frustrating the removal of unwanted visitors. I have been a lawyer for many years but knew little about what immigration lawyers do. As it was, this timely book then appeared on our shelves. Colin Yeo is an undisputed expert in the field having worked as an immigration barrister for many years.

The first thing that I learned was that such lawyers must be extremely active just to keep up with the sheer volume of laws, regulations and procedures. Colin Yeo points out that we have Acts of Parliament from 1971, 1988, 1999, 2002, 2004, 2006, 2007, 2008, 2009, 2014 and 2016 and counting. Then there are the regulations and other orders – 66 between 2015 – 2017. There is little publicly funded support to enable confused visitors to negotiate this complex maze.

He does not paint the picture of our island that we like to imagine. ‘The image we hold in our minds of Britain as welcoming country is a comforting mirage’. He then gives us pages of real-life stories that has even the most steeled of jaws dropping. At one level we see a ridiculous refusal of asylum because the applicant could not possibly face danger from guerrillas or other primates! At a more obviously disturbing level is the story of the Down’s Syndrome sufferer who was refused leave to remain on the grounds that his UK relatives could send him money. This, like many such decisions, was overturned in the face of negative publicity.

All of this is part of the campaign to reduce net migration at all costs. We have all heard of the hostile environment that led amongst other things to the Windrush scandal. 'The hostile environment has been a disaster. The system encourages race discrimination, the financial costs...have been huge, the wrong people have been catastrophically affected and there has been no discernible decrease in unlawful immigration'

At times Welcome to Britain reads like a Franz Kafka novel. Like the tragedy of Alois Dvorzak an 84 years old Canadian with Alzheimer’s who was still in handcuffs when he ‘took his last breath’ in 2013.

I strongly urge everybody to get a copy of this book and do nothing else until you have read it and grasped the seriousness of the message, and what activist lawyers really do. It is well written, persuasive and topical. Many of my friends will find this in their Christmas stocking this year!

This is the link

https://www.amazon.co.uk/gp/customer-reviews/R2YFMGHNNF1TYV/ref=cm_cr_arp_d_rvw_ttl?ie=UTF8&ASIN=1785905775

Concerning a Home Office Tweet, spilt coffee and the Rule of Law

It is rare these days that anything causes me to choke on my morning coffee! After the year that we have had there is not much left to shock. But this did happen this morning as I was briefly looking through my Twitter feed before starting work. The culprit (!) was a tweet from https://nearlylegal.co.uk/blog/ which shared a shocking post from the UK Home Office –

My first reaction was to check that it was genuine, but it is. We have an official government twitter account effectively blaming lawyers for delaying and frustrating returns of asylum seekers crossing the Channel. As a lawyer I obviously react to any attacks on my profession. But that is nothing new. What is so disturbing is the real intention behind this tweet. The role of lawyers is to uphold and protect the rights of citizens, to uphold the rule of law. We have a duty to act in the best interests of our clients and to fearlessly advocate on their behalf. An attack on lawyers is almost always an attack on those who instruct them and the principles that they defend.

What the Home Office is saying here is that the rule of law is getting in their way. It is an undisguised attack on the provisions that exist to protect us all. It is not the first time this has happened. The present government is dedicated to restricting our rights. In 2019 the Attorney General, the Government’s senior lawyer said –

“repatriated powers from the EU will mean precious little if our courts continue to act as political decision-maker, pronouncing on what the law ought to be and supplanting Parliament.”

http://thestevecornforthblog.blogspot.com/2020/02/introducing-our-new-attorney-general.html

Any action that is perceived as protecting us from the excessive actions of government is portrayed as ‘political decision making’. Boris Johnson was found by the Supreme Court to have unlawfully prorogued parliament. His reaction has been to pledge to restrict the Court’s powers. A government spokesperson talked about ‘clipping the wings’ of the court –

 https://thestevecornforthblog.blogspot.com/2019/12/clipping-wings-of-supreme-court-and.html

What ministers are really saying is that they have enough of having to follow the law of the land, that they should be free to do what they like. This flies in the face of the oath taken by the Lord Chancellor, Robert Buckland – a member of the same government –

 “I do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible”

 The latest tweet from the Home Office is a disgrace. This open disrespect for the rule of law should be called out by Mr Buckland. It must be removed and followed by an apology to those lawyers who are simply doing their jobs.

 

 

Agencies succesfully working together for justice! A good news story for once...

Congratulations and thanks to my friend Allan Salisbury and colleagues at Compassion Acts UK, who manage a Southport Foodbank, for successfully pursuing judicial review proceedings against the DWP in relation to a shocking injustice in the Universal Credit rules.

They were assisting Sharon Pantellerisco who works hard as a care worker. She is paid every 4 weeks (13 times a year). For UC, the DWP assess earnings monthly (12 times a year). The effect of this was that it appeared on the face of it she was not working long enough hours for 11 months of the year but twice as long in the final month. The impact of this was that was losing £463 a month in UC just because of the basis on which she was paid.

https://www.bbc.co.uk/news/uk-england-merseyside-53472675

Compassion Acts UK liaised with the Child Poverty Action Group (CPAG) who agreed to take on her case.

On 20^th July 2020, Mr Justice Garnham ruled that the process was irrational and therefore unlawful. The full judgment can be found here.  

The Queen on the application of Sharon Pantellerisco v DWP [2020] EWHC 1944 (Admin) - - https://www.judiciary.uk/wp-content/uploads/2020/07/R-Pantellerisco-v-SSWP-Final-Approved.pdf

This judgment is now a few weeks old but is a great example of agencies working together to secure justice. A charity that feeds the hungry became aware of a clear injustice. They decided that it was too important to leave unchallenged. They then referred the case to CPAG who have many years’ experience fighting for those who experience poverty. The injustice was rectified.

This is what happens when agencies combine their skills and experience. This emphasises again the importance of places where ordinary people can find effective legal advice and support. As the availability of Legal Aid becomes continues to be a challenge, it is critical that their work is supported.

One example is the Access to Justice Foundation’s – Go Extra Mile Project (https://atjf.org.uk/legal-walks) and the Law Centres Network’s Law For All (https://www.lawcentres.org.uk/policy/news/news/law-for-all-our-new-50th-anniversary-campaign-and-report)

Compassion Acts UK is a small local charity but which has helped to achieve an important outcome for UC claimant. Nothing we do is too small. We can all do something for justice today!

 

Concerning lawyer jokes, hidden messages and unsung heroes

 

Most of the time they are harmless and sometimes even funny.

I remember the first time that I heard a good lawyer insult. I was newly qualified and out on the town with other members of the Liverpool Young Solicitors Group Committee. Yes, there was a distant time when I was eligible! The conversation moved on to public perception of lawyers and someone commented that he had heard someone say that solicitors were like bananas –

‘Yellow, bent and hang round in bunches.’

As a young enthusiastic new boy I was shocked! After all those years of study this was what it had come to! I have been telling that story for 40 years! Being a lawyer and being the but of lawyers jokes go hand in hand –

‘What’s the difference between a lawyer and a jellyfish? One is a spineless, poisonous blob. The other is a form of sea life.’

Most of the time they are harmless and sometimes even funny.

Jonathan Goldsmith has just written in the Law Society’s Gazette about the Prime Minister’s recent comments about Sir Keir Starmer QC –

https://www.lawgazette.co.uk/commentary-and-opinion/on-being-mocked-by-the-prime-minister/5105113.article

‘Repetitions of similar mockery at the highest level in parliament for a prolonged period may have a further impact on how we are seen and trusted nationwide.’

Lawyers can become the dehumanised face of anything that the media or politicians dislike

This is where the jokes hide something more sinister. To undermine the professionalism and independence of lawyers goes beyond a joke – so to speak. Lawyers can become the dehumanised face of anything that the media or politicians dislike. So we hear about ‘ambulance chasers’ and ‘no win no fee lawyers.’ A former PM once said that the country was sick of these ‘left wing, activist, human rights lawyers.’ I have the T Shirt!

April 13^th 2021 is International Be Kind to Lawyers Day.

This is very nice but it also suggests that there are 364 days when it’s ok to be unkind to lawyers!

We do need to change the narrative and begin to celebrate more often, unsung work of lawyers. This includes the hundreds, particularly young barristers, who do legally aided criminal defence work at shockingly low rates of pay. Or what about the staggering amount of free work done across all levels of the profession? For some reason the words ‘pro bono’ don’t tell the full story –

https://thestevecornforthblog.blogspot.com/2020/05/what-have-lawyers-done-for-us-2-pro-bono.html

Then there are those that provide free advice and help through Law Centres – a movement that reached its 50^th birthday this month!

And of course, there are 000s of lawyers across the country who simply go to work – or work from home! – to achieve the best outcome for their clients.

Another memory from my early days was advice from a senior barrister, later a High Court Judge, that fighting for justice was just as much a ‘calling’ as any of the so-called caring professions. That has never left me.

Shemima Begum - a question of fairness and justice

I still remember the sense of horror in 2015 as I followed the news reports of three young, and very vulnerable looking, schoolgirls heading to Syria to join ISIS. I wasn’t the only one who hoped and prayed that something would happen to stop them. It was only ever going to end very badly. Five years on; one is certainly dead, one is missing presumed dead and one has become the most hated person in the country, according to some.

None of this can justify what Shemima Begum did or has since done. She should face justice in this country so that we can discover the truth. There are many politicians and media moguls who are determined to deprive her of justice at all costs.

Last year there was an outcry that she might have the benefit of legal aid, as if popularity was some precondition to fair treatment –

https://thestevecornforthblog.blogspot.com/2019/04/shamina-begum-legal-aid-and-meaning-of.html

This week, we have seen a similar outcry. She wishes to fight the decision to deprive her of UK citizenship. That is a matter to decided by the courts. The Court of Appeal has decided that this can only be dealt with fairly if she is permitted to come to this country –

“I have reached the firm conclusion that given that the only way in which she can have a fair and effective appeal is to be permitted to come into the United Kingdom to pursue her appeal, fairness and justice must, on the facts of this case, outweigh the national security concerns” Flaux LJ

SHAMIMA BEGUM v SPECIAL IMMIGRATION APPEALS COMMISSION  [2020] EWCA Civ 918

Whatever you think about her and what she has done, this is a justice issue. We have an independent judiciary whose role is to ensure ‘fairness and justice.’ We are told, rightly in many cases, that terrorists are out to attack our values and our ‘way of life’. These are qualities of that life that we treasure and will defend at all costs. Included among these qualities are ‘fairness and justice’. Why do those precious values become irrelevant when applied to someone who is disliked by the press?

The only thing that is ‘political’ about it, is that politicians don’t like it.

The thought that she might get a fair hearing has produced a chilling reaction. The Telegraph has led calls for judges to excluded from ‘political’ decisions.

This is not a political decision. It is a decision about how courts can deal fairly with a difficult issue. The only thing that is ‘political’ about it, is that politicians don’t like it. It is certainly not the first time that this government has tried voiced an intention to control the judiciary –

https://thestevecornforthblog.blogspot.com/2020/02/introducing-our-new-attorney-general.html

The whole point of justice is to do what is right and fair. This is one of our critical values. It is why we have independent judges. It is why the Lord Chancellor swears to – “respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts”

We are in a dangerous place if justice is left in the hands of the media or politicians.

 

 

 

 

Windrush victims - the further scandal of proof

I am currently reading The Windrush Betrayal: Exposing the Hostile Environment by Amelia Gentleman. You don’t need me to tell you that this was one of the greatest scandals of the last 50 years. Ordinary working people who had been in the UK for 40 – 50 years suddenly and inexplicably found themselves in the middle of a nightmare. They were caretakers, ambulance drivers, cleaners, teachers, care workers, nurses. They were parents, grandparents and friends who had lived normal lives like the rest of us. Suddenly their very right to be in this country was denied.

The closest that I have read is Kafka’s The Trial. It starts out as what looks like obvious error of bureaucracy which develops into a terrifying horror story.  The most disturbing common factor across all of the cases is the disbelief. Victims were explaining that they had been here since childhood and were now pensioners, but they were not believed –

“What was particularly upsetting was the unflinching refusal of immigration staff to believe her consistent account that she had been in the UK for a lifetime”

“The word ‘claims’ seems to be an official shorthand indicating: ‘this is what the suspect is saying but we’re not in the least inclined to believe him’.. *

This was a shocking injustice driven by a political obsession with driving down immigration figures.

The extent of the scandal began to come out towards the end of 2017. We all watched in shock as the truth came out. It would be easy to believe that it is all sorted, that the victims have been vindicated and will be properly compensated for all that they have been through.

Sadly, this is not the case. Few victims have received anything. One reason for this is the unreasonable hoops through which they must jump in order to show entitlement. There is 89-page guidance for case workers who assess claims. Any lawyer will tell you that means that is not a simple and user friendly scheme. You can read it here if you want –

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/886371/Windrush-compensation-case-work-guidance-v.4.0ext.pdf

The document hides another scandal of disbelief. Claimants have to prove some of their losses ‘beyond reasonable doubt’. That is the standard of proof required in criminal cases. These are civil claims for damages. In UK law the standard of proof is balance of probabilities i.e what is more likely than not. To prove something ‘beyond reasonable doubt’ is much more of challenge. Page 80 of the guidance mentions the need for a balance of probabilities but goes on –

“This applies across the compensation scheme except for the following claims:

• loss of access to employment: Actual earnings award

• loss of access to health: Reimbursement of private medical fees incurred outside the United Kingdom

• loss of access to health: Reimbursement of private medical fees incurred within the United Kingdom

• loss of access to education: Reimbursement of international student fees

• loss of access to banking:

Reimbursement of direct financial losses In these cases, the claimant must provide clear evidence and you must be satisfied so as to be sure that they meet the requirements for these awards. This means that you must be satisfied beyond reasonable doubt before making an award in these cases.”

This covers the most fundamental impacts of the scandal on the lives of victims.

It aggravates the issue of disbelief. The government is saying to victims – ‘we did not believe your right to be here despite many years of residence, work, paying of tax and national insurance’. When it comes to compensating them for the injustice they are told – 'we still don’t believe you'. You must persuade us 'beyond reasonable doubt'. This is compared with a wealthy business which is claiming millions in a commercial dispute which has to prove its losses on a balance of probabilities.

Immigration expert Colin Yeo has rightly called this ‘cruel and absurd’. 

This scandal cannot be allowed to continue. The government must now show some integrity and ensure that these people are now properly compensated.

I don’t usually promote petitions on here but this deserves action –

https://www.change.org/p/uk-govt-fix-the-windrush-compensation-scheme-now

*Amelia Gentleman, The Windrush Betrayal: Exposing the Hostile Environment – Guardian Faber Publishing (17 Sept 2019)

Since when did 'rough' become an acceptable part of Justice

The words law and justice are normally inseparable. The aim of a legal system is to promote justice. The most familiar image that is associated with our legal system is one of scales of justice. This is, or rather should be, a statement of the obvious. It seems however that costs savings now trump justice in some cases.

This is the disturbing outcome of the recent judgment in A v B which was recently reported in the Law Society Gazette –

https://www.lawgazette.co.uk/law/court-refuses-to-let-claimant-backtrack-on-5k-settlement-mistake/5104476.article

This link includes a reference to the judgment submitted by Crown Office Row Chambers.

https://www.crownofficechambers.com/2020/06/01/when-rough-justice-is-enough-common-law-doctrine-of-mistake-excluded-from-portal-claims/

The facts are very simple. The claim was being pursued via the Claims Portal for low value personal injury claims. The claimant’s solicitors offered £5750.00 and the Defendants responded with a counteroffer of £4000.00. The claimant intended to return with an offer of £5,550.00 but mistakenly typed in £550.00. This was obviously a typo. Nobody would suggest for a minute that it was anything else. The defendants promptly accepted it.

The claimant issued a Part 7 claim. The defendants successfully applied to strike out the claim as it had already been ‘compromised’. The court agreed with the defendants. This follows on from earlier cases which had a similar outcome. The rationale behind the judgments is that the common law doctrine of mistake, however obvious, does not apply to these portal claims because they were part of a self-contained procedural code. In the case of Fitton v Ageas in November 2018 HHJ Parker said –

“The process has the potential to deliver what might be called fairly rough justice on occasion, but generally is a proportionate and cost-effective way to achieve settlement”

Since when did ‘rough justice’ become part of any definition of justice?

The argument is that to allow any doctrine of mistake would result in costly and disproportionate satellite litigation. What costly satellite litigation follows from permitting the correction of an error that would be obvious to a 5 year old?!

Interestingly in A V B the Deputy District Judge observed that the level of the mistake is neither here not there so an offer of £25,000 instead of £25.00 would produce the same result.

At another level is it not a disproportionate sanction to require a solicitor and/or their insurer to pay out £24,975  for a minor typo? At the same time, the insurer who knows very well that the intention is, benefits from a massive windfall.

It is as if law and justice has been replaced by unforgiving bureaucracy.

Surely this should be urgently reviewed by the appeal courts or preferably lead to a change in the rules

.

Lessons from lockdown - finding valuable treasure

One thing that will never be the same after the current lockdown, is my appreciation of nature and the outdoors. I have had an interest in wildlife and nature for a while, especially as my photography skills have grown. But, a bit like work, it has been something that I ‘go to’. So, we travelled across the Atlantic to see sloths in Costa Rica or to the Red Sea to experience Picasso fish. What lockdown has done in unlock, so to speak, the power of the outdoors closer to home – or even at home.

For weeks we kept to our permitted single and local walk a day. We are very lucky to live just a few minutes from Crosby Beach and Marina. Wherever you are, at this time of yea, there is the stunning, background music of the skylarks. You don’t see them until you disturb them, and they leap from the ground. But the sound is everywhere. It is a constant and beautiful accompaniment. And this is how they look on those occasions that you see them –

One lasting effect of a daily walk is that you become friends with the regular visitors. It was so exciting when a pair of black swans turned up and stayed for a week or so. I would look out for them and took bits of food. I even missed then when they left. When they came back last week it felt like a moment from Lassie come home! Sad but true.

All of this has been on my doorstep for over 30 years. But it has taken lockdown to make me see it. Oh, I have ‘seen it’ but not properly! Even the good old mute swans and gulls are somehow different –

Once we were allowed to venture further afield, we did the 5-minute drive (!) to the Leeds and Liverpool Canal at Rimrose Valley. I have never even been there before last week. What an explosion of life –

And what calm serenity –

Even our back garden has produced moments of wonder

The enforced experience of nature can be life changing. Lucy Jones, writing in the Guardian last week said –

“Instead of becoming bored, as I imagined I might, I’ve found that my local natural areas feel like new destinations each day, even by the hour, for nature is in constant flux… now, many of us are spending more time in the natural world than ever before, and our environments may be as new and undiscovered as a holiday destination on the other side of the world.”

https://amp.theguardian.com/commentisfree/2020/may/16/nature-lockdown-summer-holidays

  

I have spent most of the last 40 years travelling to work, working, and then travelling home from work. I would count the days to when I would go somewhere else. Three years ago I began to work from home 2 or 3 days a week and began to see something of what was close to home. But the last 2 months have changed everything.

I am lucky have all of this so close to home – even it if was barely noticed for much of the time. Others do not have the same opportunities.

Lucy Jones writes –

“The evidence that contact with nature – even a view out of a window – can enhance healing continues to grow. Nature might even be a balm for those dealing with loss and loneliness.”  

Wherever we are, we can find some doorway to the life that is all around us.

There is a lot of talk around how the world will be different when we get back to ‘normal’. It will be a new normal. If that becomes a place where we can appreciate what has always been around us then that will be a better place for us, for those around us and ultimately for the planet itself.

And it helps us to value things differently. Most of us lives lives in which, to some degree our value is measured against what we do. My black swans became valuable, not because of anything they did, but because of who they were. Get it?

“People where you live, the little prince said, grow five thousand roses in one garden... Yet they don't find what they're looking for... And yet what they're looking for could be found in a single rose.” The Little Prince (Antoine de Saint Exupery)