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