the barrister
#78
EST. 1999
ESSENTIAL READING FOR BARRISTERS 1st October - 21st December 2018
Michaelmas Term issue
w w w. b a r r i s t e r m a g a z i n e . c o m
Guilty or not guilty – can the computer decide? Algorithms and artificial intelligence (AI) have become ubiquitous: they track our movements through the GPS in our smartphones; in the health system they help offer diagnostics to cure diseases; they influence our finances by determining our credit rating and they even beat mankind’s greatest chess and Go players. Until relatively recently, the justice system was one of the few areas of public life that seemed impervious to the advance of technology: witness the barristers’ clerks wheeling trolleys laden with legal documents to court or the lack of skype facilities in court rooms. This is all changing however, and even the justice system is slowly integrating AI and algorithms into its practices. What is an algorithm? Is their introduction into the justice system the end of the world as we know it?
Robots in the Court? It is no secret that certain technology companies have set their sights on revolutionising entire industries. From driverless cars to automatic medical diagnosis, some experts in Artificial Intelligence have even gone as far as to predict that within a few decades, no humans will be needed in the workplace. The precise effects of technological change on the justice system remained relatively
PRICE £2.80
ISSN 1468-926X
Features
An algorithm, in the simplest terms, is a set of rules and criteria that enable problemsolving, a sequence of instructions telling a computer what to do. The most well-known example of using algorithms within the justice system Christina Blacklaws is probably predictive policing. Law Society President Anyone who has watched The Wire or Minority Report will know what predictive policing entails - anticipating where crime will take place, enabling the police to stop it before, or as, it happens. It depends on sophisticated computer analysis of historical crime data, analysing their time and location to predict where and p.6 when future crimes will occur. unexplored until the current Lord Chief Justice, Lord Burnett of Malden, delivered the Sir Henry Brooke lecture this year. In his lecture, he predicted that computers would put court interpreters out of a job ‘within a few years.’ In this article, I will take a look at the case for and against his assertion. There are two main arguments used to support the idea that human court interpreters will soon go the way of duelling. In fact, they are basically the same arguments used to predict or justify replacing any professionals with technology. The first of these is simply that professionals are expensive and so some way must be found to reduce the bill for their services. Everyone involved in the legal profession will be familiar with that particular argument. It is the argument used whenever government cuts are made. It is the argument behind every drive p.7 for efficiency and, ironically, it is
08
A forum for debate about extradition? By Nick Vamos, Partner at Peters & Peters Solicitors LLP
10
Why transparency is more important than ever in the Legal Services Sector – and why we’re still not getting it right By Amanda Hamilton, NALP
14
New Manchester Court ruling adds weight to claims banks owe a further £18bn in PPI claims Analysis by Elis Gomer, Barrister at St John’s Buildings
status: the importance 18 Securing of immigration legal aid for children in local authority care
By Kamena Dorling, Group Head of Policy and Public Affairs at Coram
News 3 5
New-look Bar Pro Bono awards announced Privacy International and Liberty fight to unearth police use of intrusive mobile phone monitoring technology
Publishing Director: Derek Payne 0203 5070 249 email: info@barristermagazine.com Publishers: media management corporation ltd Design and Production: Jeremy Salmon email: info@wedesign.media
the barrister Michaelmas Term 2018
01
02 the barrister Michaelmas Term 2018
NEWS
w w w. b a r r i s t e r m a g a z i n e . c o m
New-look Bar Pro Bono awards announced Bar Pro Bono Unit ups the ante in recognising Bar’s contribution A new-look Bar Pro Bono awards is set to be launched this autumn with nine categories up for nomination and a star-studded judging panel, which includes the Lord Chief Justice, Chair of the Bar and the elusive Secret Barrister. This year’s awards will be expanded beyond the one Bar Pro Bono Award which has been presented to a barrister each year since 1997, in order to recognise the wider contribution barristers and chambers make to providing free legal advice and advocacy to the most vulnerable in society. Jess Campbell, Chief Executive of the BPBU, said: “We have long taken pride in celebrating the commitment of the Bar to providing free legal services via the Unit and other organisations and I am delighted that we are now expanding the awards to truly reflect the breadth of that contribution.” “These awards will also showcase the impact of those who support the profession, which is why we have new categories across the different elements of the barristers’ profession as well as a chambers’ staff pro bono award. These awards go to the heart of what motivates the Bar and those who work within it and will be a celebration of the Bar’s deeplyheld commitment to access to justice.” To mark this year’s awards, the Unit will be hosting the awards at historic Fleet Street bank Child & Co on 24 October 2018, in addition to presenting the Lifetime Achievement in Pro Bono and
Young Pro Bono Barrister of the Year awards at the Bar Council’s Annual Bar & Young Bar Conference on 24 November at De Vere Grand Connaught Rooms, London, as has been tradition for many years.
•
Director of the Law Centres Network - Julie Bishop
•
Lord Chief Justice of England and Wales - Lord Burnett
•
Co-Chairs of the Legal Practice Management Association - Catherine Calder and Robin Jackson
•
Editor, Counsel magazine - Sarah Grainger
•
Chairman of the Institute of Barristers’ Clerks - Nicholas Hill
•
Chair of the Bar Council’s Young Barristers’ Committee - Richard Hoyle
•
Editor, The Legal 500 UK Bar and Asia Pacific - John van der LuitDrummond
•
Bar Pro Bono Award 2017 winner Tanya Murshed
Judges
•
To judge the new categories at this year’s awards, the BPBU has called in big names from across the sector. This year’s judges are:
Chair, Bar Council Pro Bono Committee - Alison Padfield QC
•
Chair of the Bar - Andrew Walker QC
•
The Secret Barrister
This year’s award categories are: • • • • • • • • •
Young Pro Bono Barrister of the Year, sponsored by Place Campbell Junior Pro Bono Barrister of the Year, sponsored by Juriosity, the Legal Knowledge Network Pro Bono QC of the Year International Pro Bono Barrister of the Year Employed Pro Bono Barrister of the Year Pro Bono Chambers’ Staff Member of the Year, sponsored by the Legal Practice Management Association Pro Bono Innovation of the Year, sponsored by Lexis Nexis Pro Bono Chambers of the Year Lifetime Achievement in Pro Bono
•
Bar Pro Bono Unit Founder and President - Lord Goldsmith QC Chair of the Judging Panel
•
Chair of the Bar Council’s Employed Barristers’ Committee - Jennifer Agnew
Electronic signatures are valid say Government’s legal experts Electronic signatures can be used to sign formal legal contracts under English law, the Law Commission has confirmed. The Government’s independent legal experts has published early conclusions which aim to sweep away the current uncertainty in the law, allowing businesses to speed up transactions by going fully digital. The Commission has also laid out possible steps which could further boost
business and help the UK capitalise on new technologies, proposing: • •
that electronic signatures could be witnessed via a webcam or video link the formation of a Governmentbacked industry working group to consider the on-going practical issues around the use of electronic signatures and how these can be improved
Nominations are now open for this year’s Bar Pro Bono Awards, which are supported by the Bar Council of England & Wales.
For more information, please contact Mary Dobson at mdobson@barprobono. org.uk Alongside that they ask whether the law should go even further to facilitate the electronic execution of deeds, by allowing a witness to use a real-time, shared online platform to witness documents from different locations. Law Commissioner Stephen Lewis said: “Contract law in the UK is flexible, but some businesses are still unsure if electronic signatures would satisfy legal requirements. “We can confirm that they do, potentially paving the way for much quicker transactions for businesses and consumers. “And not only that, there’s scope, with our proposals for webcam witnesses, to do even more to make signing formal documents more convenient, speed up transactions and get business booming.”
the barrister Michaelmas Term 2018
03
NEWS
w w w. b a r r i s t e r m a g a z i n e . c o m UK businesses and an uptick in business from non-UK clients taking advantage of the depreciation of the pound. “However, Brexit is likely to have a significant negative effect on the legal sector in the medium and longer term. This is largely due to the knock-on impact of Brexit on the wider economy as demand for legal services relies on the success of other sectors of the UK economy.
Growth in legal sector halved if Britain crashes out of EU, Law Society forecasts Almost £3bn could be stripped from legal sector turnover by 2025 if the UK crashes out of the EU without a deal according to new economic forecasts released by the Law Society of England and Wales using alternative Brexit scenarios developed in collaboration with Thomson Reuters. Law Society president Christina Blacklaws said: “UK legal services look to have been relatively buoyant through 2017-18, thanks to a combination of Brexit-related work, steady demand from
“If the UK had to fall back on Word Trade Organisation (WTO) rules – a ‘no deal’ scenario – growth would only be 1.1% per year on average over this period.” http://www.lawsociety.org.uk/ uploadedImages/site-assets/effects-ofdifferent-brexit-scenarios-1.jpg These forecasts are generated by the Law Society research unit’s econometric model, which uses and builds on macroeconomic forecasts from the National Institute of Economic and Social Research (NIESR) and the IMF World Economic Outlook alongside Office of National Statistics reported data. Christina Blacklaws added: “Lack of agreement on Brexit negotiations combined with volatile global markets mean that we’re standing on thin ice publishing economic forecasts just now, so we are reviewing our figures regularly and looking at a range of Brexit scenarios.
The barristers have moved to Parklane Plowden over the past few months, and have recently been joined by Clerks, Stephen Render and Claire Shephard.
Team of the leading Chancery and Commercial barristers join Parklane Plowden Chambers from St Philips
http://www.lawsociety.org.uk/ uploadedImages/site-assets/effects-ofdifferent-brexit-scenarios-2.jpg
“Our econometric model predicts 2.2% average annual growth from 2019 – 2025 with a soft Brexit. This drops to just 1.5% with ‘harder’ Brexit options such as a Canada-style free trade agreement (FTA).
One of the North Eastern circuits leading sets, Parklane Plowden Chambers, has significantly boosted its portfolio of expertise following a very rare arrangement that sees 8 specialist and highly regarded Chancery and Commercial barristers, and 2 clerks join from St Philips Chambers (Leeds).
The barristers joining Chambers are: Sarah Harrison [1989], Sean Kelly [1990], Marisa Lloyd [1994], Stuart Roberts [1994], Peter Cherry [2003], Jonathan Gale [Door Tenant, 2009], Anna Metcalfe [2010] and Cait Sweeney [2012]. Their areas of expertise cover: Probate, Inheritance & Trusts; Property; Intellectual Property and Business & Commercial law. Barrister Sarah Harrison, the most senior of the new additions said, “The opportunities arising from the new Business and Property Courts in Leeds and Newcastle means that Parklane Plowden Chambers is a natural fit because of its dual-base in both cities. Chambers forward-looking approach and the business acumen of the managerial team made the move an extremely attractive option. Chambers is now home to what we believe is an unrivalled team of specialist chancery and commercial barristers on the North Eastern circuit, able to service the legal needs of law firms both regionally and nationally.”
04 the barrister Michaelmas Term 2018
“Our intention is to provide projections that are useful to the sector, to business and government as they steer a course for the years ahead.”
“A hard Brexit could have a significant impact on employment in the sector, with lower growth and less investment in UK firms leading to lower productivity growth in the sector. Even based on a soft Brexit modelling our forecast suggests a steeper fall in employment than in last year’s forecast,” said Christina Blacklaws. Under the Canada-type free trade agreement, Law Society forecasts estimate that by 2025 employment in the UK legal services sector could be 4,0005,000 less than it would be under a soft Brexit scenario. Under the WTO rules by 2025 employment could be 8,000-10,000 less than it would be under a soft Brexit scenario. Christina Blacklaws said: “Shifts in employment are less certain than other figures in our forecast due to the range of Brexit scenarios and the effects of these on productivity. “However, the law of England and Wales underpins a vast number of global transactions and will continue to do so for the foreseeable future. Our laws and jurisdiction are renowned the world over for their relative certainty, our expert judiciary and the professional competence and independence of both judges and practitioners.”
“This latest development for Chambers is part of our ambitious growth plan which we embarked on in 2015 when we undertook a unique and radical managerial restructure.” says Head of Chambers, Christopher Williams. “Our absolute focus on what’s happening in the legal market, and willingness to make timely and strategic business decisions that are good for chambers and its members, has enabled us to attract this highly reputable team of barristers and clerks. We’re absolutely delighted that they chose to join us and look forward to developing the team and work further.” 1. Parklane Plowden is an awardwinning Civil, Family and Commercial Barristers’ Chambers based in Leeds and Newcastle. Routinely referred by legal commentators as the “Powerhouse of the North”, Chambers has an unrivalled reputation as being home to a “stellar roster of silks and talented juniors, many of whom are leaders in their respective fields.” [Chambers & Partners Guide to the Bar]. Chambers has over 100 barristers who operate in key areas of expertise: Personal Injury & Fatal ; Clinical Negligence & Healthcare; Employment; Family; Probate, Inheritance & Trusts; Property; Fraud; Historic abuse; Insurance; Court of Protection & Community Care and Litigation Funding & Costs. Barristers and Clerks work hard to achieve the best possible solution for clients, with an emphasis on service and support. Website: http://www.parklaneplowden.co.uk
NEWS
w w w. b a r r i s t e r m a g a z i n e . c o m
Privacy International and Liberty fight to unearth police use of intrusive mobile phone monitoring technology information means the public remains in the dark about the implications for privacy rights, free speech and freedom of association. The forces’ stance is supported by the Information Commissioner’s Office. Privacy International and Liberty argue it is a violation of the Freedom of Information Act – and has appealed to the First-tier Tribunal.
Privacy International has filed an appeal challenging police forces’ refusal to disclose information on their purchase and use of IMSI catchers. IMSI catchers are surveillance tools which mimic mobile phone towers, tricking phones into connecting with them and revealing personal information. Some IMSI catchers can also intercept data, including the content of calls, text messages and internet traffic, and even edit your communications or block your service. An IMSI catcher is able to gather data about everyone’s phone in its vicinity. The technology could be used at public events such as demonstrations to help identify everyone in attendance. https://www.libertyhumanrights.org. uk/sites/default/files/social-media/ images/Stingray.png In 2016 Privacy International submitted freedom of information requests to police forces identified by media collective The Bristol Cable as having purchased the monitoring tools. Each force refused every category of the request on grounds that they could “neither confirm nor deny” (NCND) whether they held the information. Represented by human rights campaign organisation Liberty, Privacy International is challenging the police forces’ reliance on a ‘neither confirm nor deny’ position – which has allowed the secret purchase and deployment of this intrusive and indiscriminate surveillance technology for years. The police’s refusal to disclose this
Scarlet Kim, Legal Officer for Privacy International said: “For years, the police forces have relied on a knee-jerk ‘neither confirm nor deny’ reaction to requests for information about their purchase and use of IMSI catchers, even as reports continue to trickle out that they have spent hundreds of thousands of pounds on this technology. This secrecy is all the more troubling given the indiscriminate manner in which IMSI catchers operate. These tools are particularly ripe for abuse when used at public gatherings, such as protests, where the government can easily collect data about all those attending. “The purpose of the Freedom of Information Act is to empower the public to seek this very type of information - information about government activity that impacts the rights and lives of millions across the country. Instead, the police forces have attempted to strip it of its very meaning. We hope that the First-tier Tribunal will finally permit us to shed much-needed light on police use of this intrusive surveillance technology.” Megan Goulding, Lawyer for Liberty and Privacy International’s solicitor said: “We welcome the Tribunal’s examination of an inept system where public bodies are free to ‘neither confirm nor deny’ they hold significant information with next to no rigorous scrutiny of their position. “It is vital the public is able to access information on the indiscriminate surveillance technology used against us. We hope the Tribunal acknowledges the threat to our rights and encourages
a more diligent approach from the Information Commissioner’s Office.” Background Privacy International has been fighting for nearly two years for the disclosure of information related to UK police purchase and use of IMSI catchers. In November 2016, the privacy rights organisation sent freedom of information requests to Avon & Somerset Police, Kent Police, the Metropolitan Police Service, South Yorkshire Police, Staffordshire Police, Warwickshire Police, West Mercia Police and West Midlands Police regarding their use and regulation of IMSI catchers. Each force responded to say it could ‘neither confirm nor deny’ it held the requested information. In July 2018, in an appeal to the Information Commissioner’s Office (ICO), Privacy International successfully argued that police forces cannot ‘neither confirm nor deny’ that they hold information in relation to legislation, codes of practice, or brochures or other promotional materials related to the surveillance tools. However, the ICO said police could ‘neither confirm nor deny’ that they hold information for several other categories of information - including policies or other guidance related to the regulation of IMSI catchers as well as contracts and other records related to the purchase of this technology. Privacy International and Liberty argue that this decision violates the Freedom of Information Act and are seeking disclosure of these records. The organisations argue the police should not be allowed to hide behind ‘neither confirm nor deny’ in order to keep the public in the dark about the purchase and use of this intrusive and indiscriminate mobile phone surveillance technology. The public has a right to know how its funds are being expended and how police surveillance may seriously interfere with their civil liberties and human rights. Without the information requested by Privacy International, the public cannot properly debate, scrutinise and hold the police accountable for their actions.
the barrister Michaelmas Term 2018
05
NEWS
w w w. b a r r i s t e r m a g a z i n e . c o m instructions, but it would be a mistake to assume it therefore operates without bias or prejudice. One of the criteria that was taken into account by the designers of the Durham custody algorithm when deciding whether a suspect was low, medium or high risk of recidivism was the postcode of their home address. This is problematic as including location and socio-demographic data can reinforce existing biases in policing decisions and the judicial system. Further, if police respond to forecasts of high risk in particular postcode areas then this additional law enforcement activity may amplify existing patterns of reported offending. In other words, the more resource you focus on a particular area, the more crimes you will detect there.
This is not vastly different to the p.1 way a police officer anticipates crimes, deducing for instance that burglars would tend to target businesses at night when they are unoccupied, and to target homes during the day, when residents are away at work. This kind of analysis enables the police to focus resources on areas most likely to suffer from crime. Police forces are currently the chief users of algorithms in the justice system in England and Wales. Kent Police has been using predictive policing software for a few years. A Google map on a computer screen shows little red dots where the algorithm predicts crime is likely to occur based on analysis of previous crime patterns. This works especially well for recurring, low-level crime. Kent police estimates that low-level street crime, like common assault and anti-social behaviour, has dropped by 7% since the system was rolled out in 2013. Durham Police uses an algorithm called HART (Harm Assessment Risk Tool), which helps custody officers decide whether a suspect should be kept in custody, released, or directed to a rehabilitation programme called Checkpoint. HART uses data from 34 different categories – covering a person’s age, gender and offending history – to rate people as a low, moderate or high risk. The London Metropolitan Police (the Met) and South Wales police both use facial recognition technology (FRT). This algorithm scans faces in real time and matches them against an existing database of faces. This has been used in city centres, at political demonstrations, sporting events and
festivals with worrying results. According to Big Brother Watch, the Met’s facial recognition matches are 98% inaccurate, while South Wales Police’s matches are 91% inaccurate. There are also serious problems with the fact that these police forces retain huge databases of faces, including those of innocent individuals incorrectly matched by facial recognition. In a number of states in the United States, algorithms are used to help judges make sentencing decisions. The Level of Service Inventory – Revised (LSI-R) is a popular commercial risk assessment tool that has been adapted for use in assessing a person’s risk of recidivism and the best sentencing options. An algorithm processes data from ten key areas: criminal history; leisure/recreation; companions; family/ marital; accommodation; education/ employment; financial; alcohol/drug problems; emotional/personal and attitudes/orientation. The use of algorithms in the justice system may be attractive from an efficiency perspective, but there are ethical and human rights concerns that merit close examination. Predictive policing, for example, relies on existing police data. If this data contains biases, as is virtually unavoidable, these will be fed into the algorithm, thereby reinforcing those biases while giving them a veneer of objectivity. To give a concrete example: if more people from ethnic minorities are discretionally stopped and searched, their profiles will be more prominent in police data and will therefore be identified as more likely to commit a crime by an algorithm. An algorithm may just be a set of
06 the barrister Michaelmas Term 2018
Both the Met and South Wales Police face legal challenges to their use of facial recognition technology in public spaces on the grounds that this violates rights to privacy, free expression and protest. Civil rights group Liberty asserts that it is not “authorised by any law, guided by any official policy or scrutinised by any independent body.” Another concern arises from the involvement of private, commercial companies that in most cases build the algorithm and, for commercial reasons, do not allow the “black box” or foundation of the mechanism to be opened. This impenetrability means decision-making process cannot be thoroughly reviewed or investigated. For example, the LSI-R was developed by Canadian company Multi-Health Systems. The proprietary nature of the tool means that detailed information on how the tool works is not publicly available. This raises issues with transparency and the right to due process. I chair the Law Society’s Technology and the Law Policy Commission which is examining ethical, rule of law, and human rights issues relating to the use of algorithms in the justice system. The commissioners are taking evidence from a wide range of stakeholders to inform recommendations. We are interrogating the accuracy, validity and reliability of the data used to train machines; the design, review and sale of software; the lack of remedies available to those subject to algorithmic decisions; and the viability and shape of any future regulation of the use of algorithms in the justice system.
Christina Blacklaws, Law Society President. For more information, to submit evidence, or to attend a session of the Law Society’s Technology and the Law Policy Commission, please go to: www. lawsociety.org.uk/tlc
the argument used to justify p.1 spending millions on new systems, which, we are told, will lead to incredible leaps forward in simplicity and reduce waste.
in the hype and to start predicting, like the Lord Chief Justice, that the combined technical expertise set on the problem will obviously lead to a solution within a short space of time.
It is indeed true that court interpreters do cost a lot of taxpayer money. The total value of the contract awarded by the Ministry of Justice in 2016 to cover interpreting and translation was £232.4 million, with around 90% of that expected to be spent on interpreting (Slator.com “And So It Begins: thebigword Takes Over From Capita TI”, 30th November, 2016). It makes sense to look for efficiency savings with a budget that large, especially since the languages covered range from Acholi to Zulu.
The case for the replacement of human court interpreters with machines is definitely strong. It would be completely naïve to pretend that courts will not be affected by technology and that interpreting in court is not ripe for change. Yet even with that in mind, there is a case for seeing human court interpreters as having a bright future ahead of them.
The case for looking for financial savings is clear. What is not clear is how to save money today without having to spend more money later. Faced with the choice of two interpreters, with the second charging £10 per hour more than the first, many buyers might decide to pick the cheapest. Yet the cost and wasted time of finding that the cheaper interpreter was simply not able to handle the work will easily outweigh any upfront savings. Which barrister would want to find out that they lost a case due to trying to save a few tenners by booking a cheaper interpreter for initial consultations? If barristers are to be able to do their work and if courts are to run well, quality of interpreting should always be as important as price, if not more so. Talk of cost savings and high fulfilment rates mean absolutely nothing if the interpreters who do turn up are not properly trained and experienced or even if, for some unfathomable bureaucratic reason, they do not have the right languages for the case at hand. In addition to the cost argument, many promoters of machine interpreting will also make the argument that machines will soon manage to match or even outdo the performance of professional interpreters. Even if performance might not be perfect at the moment, they argue that machine interpreting is a problem on the way to being cracked. If the explosion in the number of companies now offering machine interpreting solutions is anything to go by, it will soon be as easy to get flawless interpreting on a smartphone as it is to order an Uber or find a nearby restaurant. It is true that machine interpreting has suddenly become a well-funded and popular technological venture. From tech giants such as Microsoft and Google to new players such as Waverly Labs and ili, it is hard to miss their large-scale marketing and PR efforts. It is even harder not to get swept up
The clearest answer to those who predict the demise of human court interpreters is the one given by the Institute of Translation and Interpreting in response to the Lord Chief Justice. Despite the best efforts of the engineers and marketers in technology companies great and small, it remains true that there is no machine interpreting that comes close to even basic human interpreting competence. A few recent examples will suffice. Proud of their own efforts to produce flawless machine interpreting and awed by the high accuracy levels reported by their engineers, Chinese technology company Tencent recently decided to showcase their own machine interpreting solution. They allowed the machines to take the place of humans at the 2018 Boao Forum, their corporate forum for leaders in academia, business and government. The results were less than compelling. For example, when one speaker spoke about China’s “belt and road initiative” to build infrastructure abroad, the machine called it “a road and a waistband” (“AI-powered translation still needs work after errors mar debut at Boao Forum”, South China Morning Post, 16th April, 2018). At one point, the same technology simply repeated the word “for” over and over again (“AI Interpreter Fail at China Summit Sparks Debate about Future of Profession”, Slator.com, 17th April 2018). Despite encouraging laboratory results, real-world trials of machine interpreting have all followed a much similar trend of high expectations followed by poor results. Users who have taken Google’s Pixel Buds for a trial in cafés or meetings have posted reviews complaining about the time taken to get any interpreting at all, an inability to deal with poor internet strength and the raw nature of the output. When one Russian expert tried out Microsoft’s Skype Translator with a call to her husband, she found that it couldn’t tell the difference between “cattle” and a “kettle” (“How I tested Skype Translator in Russian”, TalkRussian.com, 8th November,
2016). All this demonstrates the difference between laboratory work with controlled data, ideal conditions and repeated tests and real-life, with its inherent unpredictability. This is before anyone even considers the fact that court interpreters must quickly change between styles of interpreting as the requirements of consecutive interpreting used in cross-examinations are entirely different to those necessary when interpreting simultaneously for participants who do not speak English. Indeed, interpreters who do not adjust to these different requirements have been found to impede understanding and hence justice (Speak English or What?, Philipp Angermeyer). Perhaps the main reason why there is such a strong belief that human interpreters can be replaced is that there is so little understanding of the skills involved. Just as reading a few law books and being able to speak in public is not sufficient to make a barrister, knowing two languages is not nearly enough to become an interpreter. There are almost always several possible ways to interpret what has been said, without losing any accuracy. The skill of interpreting then is not simply knowing the French for “manslaughter” or the Hindi for “murder” but in understanding how to communicate what was said as fully and exactly as possible while taking account of cultural, grammatical, and linguistic difference. Far from being robots who are entirely interchangeable, court interpreters must be highly culturally and legally aware as their decisions can shape the outcome of cases (see for example The Bilingual Courtroom, by Susan BerkSeligson). For the kind of interpreting that saves money in the long-term by providing a service that allows barristers and judges to do their job effectively, there simply is no replacement for welltrained, adequately paid, monitored human interpreters. Anything else is simply a recipe for frustration, wasted time and ultimately, miscarriages of justice. Dr Jonathan Downie Dr Jonathan Downie is a consultant conference and business interpreter and interpreting researcher, sitting on the Board of the Institute of Translation and Interpreting.
the barrister Michaelmas Term 2018
07
A forum for debate about extradition?
By Nick Vamos, Partner at Peters & Peters Solicitors LLP
O
n 31 July the Lord Chief Justice, Lord Burnett of Maldon, handed down perhaps the most surprising judgment yet to address the issue of forum in extradition law. His decision to bar the extradition of Stuart Scott to the US for offences of wire fraud garnered scant media attention, certainly when compared to his decision in November 2017 to bar the extradition of Lauri Love , also to the US, for hacking offences, which made headline news. Mr Love was the first ever person to avoid extradition under the Forum Bar, introduced into the Extradition Act 2003 by then Home Secretary Theresa May in 2013 following public concern over a perceived imbalance in UK/US extradition arrangements, exemplified by the case of another hacker, Gary McKinnon. The purpose of the bar, as explained by May, was to allow judges to bar extradition in the interests of justice where the alleged conduct could be prosecuted in the UK instead. However, critics of the Forum Bar argued that it was toothless because it did not give the court the power to over-rule a decision by the Crown Prosecution Service or Serious Fraud Office not to bring a domestic prosecution. The first handful of cases appeared to confirm that, provided the domestic prosecution agencies did not choose to bring charges, the courts were very unlikely to invoke forum as a reason to refuse extradition. Now, almost like London buses, a long wait has resulted in two cases in succession that have defied early expectations. Scott is the first case in which the Forum Bar has made a material difference to the outcome, because Mr Love’s extradition was also refused on other grounds. Moreover, Scott is not a hacker with a media-friendly, romantic, underdog image but a banker accused of manipulating foreign exchange rates for substantial personal gain, shortly after the
financial crash. Most interestingly, his is the first case in which the High Court has accepted, with seeming equanimity, that the Forum Bar can allow a defendant to escape justice completely. This is especially surprising given that the Forum Bar is assessed against the interests of justice and the Lord Chief Justice confirmed in Love that its underlying aim was “to prevent extradition where the offences can be fairly and effectively tried here”. Not even its most enthusiastic proponents ever argued that it was in the interests of justice to prevent defendants being prosecuted at all. Both Love and McKinnon said that they were only trying to avoid extradition, not responsibility for their actions. McKinnon even judicially reviewed the CPS for declining to prosecute him, following in the footsteps of the so-called “NatWest 3” who tried and failed (pre-Forum-Bar) to reverse a decision by the SFO not to charge them. How, then, does the allegedly toothless Forum Bar now allow defendants to avoid justice altogether? The first part of the answer lies in the structure of the statute. Although extradition is only barred by reason of forum if it would not be in the interests of justice, this is assessed against a closed list of seven specified factors which “do not leave to the court the task of some vague or broader evaluation of what is just.” Therefore, if the court concludes that the weight of the specified factors is against extradition, it is not permitted to re-balance the scales by reference to any broader principle, such as the desirability of putting on trial those who are legitimately charged with criminal offences. For the second part, one must look at the ways in which the CPS and SFO are permitted to influence the forum decision within the extradition proceedings. The Act allows for two forms of intervention. First, the prosecutor can issue a certificate to the effect that it has made a formal
08 the barrister Michaelmas Term 2018
decision not to charge under the Code for Crown Prosecutors. This disapplies the Forum Bar completely, because the UK is no longer a possible forum for the defendant to be tried. I am not aware that any certificates have been issued in any extradition case to date. Second, the prosecutor can choose to express a belief, falling short of a formal decision, that the UK is not the most appropriate jurisdiction for a prosecution. This belief, which obviously points towards extradition, is then one of the specified factors relevant to the interests of justice. It was no secret that both the US Department of Justice and the SFO had carried out a long-running investigation into fraudulent manipulation of the foreign exchange market. In respect of Scott, the SFO confirmed at the extradition hearing that he was “at no stage considered a suspect in that investigation; moreover, that the trades which are the subject of the US Request were not at any time a part of that investigation. Finally, I can confirm that the SFO does not intend to investigate Stuart Scott for the matters subject to the US Request.” You might think that it is implicit in this statement that the SFO believed that the UK was not the most appropriate jurisdiction for a prosecution, but you would be wrong. According to the High Court “it does not address the question of where it would be more appropriate for the appellant to be prosecuted… It is a statement of fact rather than belief.” As such, not only did it carry no weight as a specified factor in the interests of justice, it also dramatically skewed the way in which the other specified factors were assessed. The reasons for this lie in the third part of the answer. Earlier in the judgment the Lord Chief Justice pointed out that “consideration of the interests of justice… is primarily concerned with the question whether a prosecution for the conduct which is the subject of the extradition request… should take place in
this country or in the requesting state. It is not concerned with… a situation where in practice the choice is between a prosecution in the requesting state and no prosecution at all.” Having found, as a result of the SFO’s statement, that he was nevertheless dealing with this latter situation, he concluded that two of the specified factors were now entirely hypothetical and therefore irrelevant: whether evidence is or could be made available in the UK ; and whether any delay might result from proceeding in one jurisdiction rather than the other . Perhaps most controversially, he held that the weight attaching to the interests of any victims of the extradition offence was severely curtailed. Whilst it was true that victims would normally favour a trial overseas over no trial at all, in this case the victim was a UK company who had already been compensated by HSBC, Scott’s employer, and his USbased co-defendant had pleaded guilty in New York. Therefore “(t) o the extent that an identifiable victim may take comfort from the prosecution of a wrong-doer, that has been possible as a result of
the earlier prosecution.” Because two of the specified factors already weighed heavily against extradition, namely the place where most of the loss and harm occurred and Scott’s connections to the UK (notably, his substantial personal pressures due to family illnesses), the court concluded that the overall balance meant that extradition was not in the interests of justice. The court’s approach is certainly open to criticism. In slavishly following the statutory scheme in determining the interests of justice and eschewing any broader test, the judgment misses the point that justice is rarely served by failing to bring those properly accused of crimes before a tribunal that can determine their guilt or innocence. The court’s interpretation of the interests of victims is very narrow, and it could just as reasonably have said that victims have a strong interest in seeing all defendants taken to trial. Scott may disagree, but not having the opportunity to clear your name is not necessarily in the interests of defendants either.
Neither was the court obliged to adopt such a literal interpretation of the SFO’s statement. If there was any confusion about whether the SFO intended to express a belief about where Scott should be tried it could have been asked to clarify its position. More problematically, the judgment ignores the fact that when the SFO or CPS clearly expresses a belief that it would be more appropriate to prosecute the defendant overseas (which in Scott’s case might have tipped the balance against him), invariably that is because it has no intention of investigating and prosecuting him domestically. If that is correct then the analysis in Scott leads to a practical paradox: the prosecutor’s belief points strongly in favour of extradition, but the practical effect of that belief – that no domestic prosecution will take place – points in completely the opposite direction. The Lord Chief Justice may have demonstrated that the Forum Bar has teeth, but has this judgment bitten off more than it can chew?
the barrister Michaelmas Term 2018
09
Why transparency is more important than ever in the Legal Services Sector – and why we’re still not getting it right By Amanda Hamilton, NALP
C
hanges have been so radical in the legal services sector in the last five years that consumers are bound to be confused. It used to be that if you had a legal problem, you would automatically turn to a solicitor. Paying for the services of a solicitor was not given a second thought, especially if there was the possibility of legal funding (legal aid). This has all been turned on its head. With the implementation of The Legal Services Act 2007, competition has been increased, all under the umbrella of ‘access to justice for all, at a reasonable cost’. Furthermore, legal aid has been withdrawn for all but the most urgent legal matters. The question is ‘what is the cost to the consumer?’ The average person on the street, or in legal jargon, ‘the man on the Clapham omnibus’ has no idea what the changes are, why they have been implemented and who to turn to with their legal problem. Many have decided to take on the burden of litigation themselves with devastating consequences for the court system. Litigants in person (LIPs) are causing the courts huge difficulties because they do not know what to do. Consequently, the courts are stopping cases to give LIPs assistance and struggling under the pressure. Consumers are also probably unaware that since January 2014, they can approach barristers to assist them in the conduct of any litigious action. Has this fact been widely marketed to the Consumer? Are they aware that a barrister may now be able to offer services that are no different in essence to those offered by solicitors? The answer sadly is probably ‘no’! It must be the responsibility of the regulated legal professions to ensure that all information about the sector, and who can offer what service, is readily available on their websites. However, the unsavoury truth of the matter is that there are self-interests to serve and the loser, the one individual that should be given the primary consideration the consumer - is lost and forgotten. We should remember that the sole purpose of being part of this profession is to offer a service and the user of our services should not be disregarded.
10 the barrister Michaelmas Term 2018
Unfortunately, the reality is, that throughout the changes that have been made and implemented by the sector itself, no-one has considered how this has affected the end user of their services, nor have they given a valid explanation to them for the changes. There has been no transparency. The other factors are that with the opening up of competition in the sector, how can consumers know whether what is stated on a particular website is the truth? Apart from the statutorily regulated legal professionals; such as solicitors, barristers, chartered legal executives and licensed conveyancers; there are now numerous services offered by other individuals and organisations that are not statutorily regulated. Claims and comments made on their websites can be misleading at best, and possibly fraudulent at the other extreme. To mislead the general public is a very dangerous path down which to venture. Not only can it be costly (and potentially terminal for your practice) it can also affect the reputation of legal services sector generally, which is what must be prevented at all costs in order to preserve the Rule of Law. Remember, even comments made in very broad terms can cause assumptions to be made – so care must be taken. It is perhaps left to the individual end user to do their own research but, unless providers of legal services or those referring to themselves as ‘regulators’ (including those claiming to be ‘Voluntary Regulators’), are totally transparent, how can a distinction be made between them? At a recent Competitions and Markets Authority Forum (CMA) that NALP attended, the theme of the event was ‘transparency’ but it was clear that several individuals around that table did not really understand what this means. If a consumer visits a website and makes the wrong inferences from the content on that website – who is at fault? Has the website owner been transparent and clear? In my opinion, there has to be absolutely no doubt about what is being stated and how it can be interpreted. It does not matter whether the intention is to mislead or not. For example, NALP makes it abundantly clear to all its members offering legal services, that they cannot ‘holdout’. In other words, if claims are made on their website
about being ‘lawyers’, even if this is technically true, it is likely that a consumer reading such comments will probably assume that they are solicitors or barristers. NALP’s preferred practice is to ensure clarity and transparency and to state categorically that ‘we are Paralegals’ not solicitors or barristers.
For example, it would be misleading to state that ‘we are a government recognised professional body’ when in fact what it is really being stated is that ‘we were incorporated by a government body - Companies House’. It’s clear how vague or disingenuous language can mislead in this real-life example.
Even by omission, for example not stating anything at all about the status of the individual(s) offering legal services, for example, by saying ‘we offer legal services in the following areas…’ can be interpreted that the persons offering those services are solicitors. The intention may not be to mislead, but if it wouldn’t be unreasonable for a consumer to be misled by those statements – then they need to change.
Failing to declare an interest in another organisation is also an area where lack of transparency can mislead the consumer. For example, if an organisation were to say; ‘we are a standard setting body… as recognised by the unregulated legal services regulator’ or ‘we are the only body that is recognised by the voluntary regulator as having robust professional standards’ – and not state clearly that, in fact, the voluntary regulator and the body in question are owned by the same individuals, that would most certainly be a failure of transparency and could easily mislead a consumer who would not know or understand that the two bodies were related.
How can we expect the legal services sector to continue offering an excellent service to the consumer if providers, and voluntary regulators, are not being transparent? Making statements on websites that are not strictly untrue, but knowingly making them in order to invoke assumptions on behalf of the reader that are obviously incorrect, is indeed misleading and possibly fraudulent. This is not transparency. Transparency must include the status of the individual or organisation offering the service, fees that will be charged for each service offered, any potential conflicts of interest and any complaints procedure.
We, as an industry, need to ensure that all statements made on websites have clarity and cannot be interpreted by making assumptions. The difficulty is how to monitor and police such statements. If policing such websites is not going to happen or is impossible, then the burden lies with those organisations of integrity to be as transparent as possible and hope that the most
important individuals within the sector, the consumers, recognise this effort and make the right decisions. I feel strongly that we need to help protect the consumer – partly because, after all, that’s what the law is all about and why many of us chose this career. But, also, because it will, in the long run protect us all in the legal services industry. If we, as a sector, don’t get it right – then we can hardly blame a future government if they decide to regulate legal services even further. We have to have transparency and clarity and ensure we are doing our best to protect the consumer. Or we may find that the spectre of further statutory regulation comes back to bite us.
ABOUT THE AUTHOR Amanda Hamilton is Chief Executive of NALP, a non-profit Membership Body as well as being the only Paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England & Wales). Through its training arm, NALP Training, accredited recognised professional paralegal qualifications are offered for a career as a paralegal professional. See: http://www.nationalparalegals.co.uk and http://www.nalptraining.co.uk/nalp_ training Twitter: @NALP_UK Facebook: https://www.facebook.com/ NationalAssocationsofLicensedParalegals/ LinkedIn - https://www.linkedin.com/in/ amanda-hamilton-llb-hons-840a6a16/
the barrister Michaelmas Term 2018
11
How to protect your law firm and its data
Emails are a thing of the past Any legal professional will be aware of the constant amendments needed to create just one document. With several co-authors and reviewers, each creating newly updated versions, it can be difficult to locate the latest document in an everfilling inbox.
By Angus Bradley, Managing Director at PROJECTFUSION
Then there are the common frustrations caused by investing a considerable number of hours into laboriously evaluating and collating feedback in order to create the final master document. The other risk with sending legal documents via email concerns security. A document containing sensitive and private data may fall into the wrong hands by accidentally using an incorrect email address. The chances may be considered slim, but one in three people have sent an email to the wrong person. And how many times have you sent a text to the person the text was about? Software can be downloaded that supports emails within a legal practice and gives warnings beforehand to ensure the recipient is in fact the correct one. These systems can provide a safety net and a sense of reassurance. Enter co-authoring As any millennial will know, coauthoring - letting people edit documents at the same time in a web browser, was introduced by Google in 2010. Co-authoring makes collaborating on documents much faster. One place for the document, no different versions, no emails, better security. No need to wait for everyone’s feedback before trying to consolidate multiple comments. And you don’t need to try and get everyone together on the phone for a tedious meeting going over every single change. If this sounds like chaos, don’t worry every contribution is initialed and easy to change or reject. Until recently, there have only been two options for co-authoring, Google Docs and Office 365. Both use shared clouds, and both require all users to have a Google or Microsoft login. 2018 has seen new services arriving with legal specific solutions - which promise better security and compliance. The security of co-authoring The key element of a co-authoring platform for a legal firm is the ability to edit a document in one place, preventing a build-up of copies stored in multiple locations. However, even though access is only granted to certain parties, unauthorised entry cannot be ruled out altogether. Cloud leaks and hacks are becoming all too common. In May 2017 over a million Gmail accounts were hacked within one hour. The process that the hacker used was to send an email from a known contact that contained an invitation link for a Google Doc. As soon as this link was opened, entry was feasible, giving the hackers access to any amount of private data. Google reported to the BBC that they managed to remove the attack “within approximately one hour” and that
no further action from account holders was required. But still, the damage had been done to not only private accounts, but to Google’s reputation. When it comes to hacking an account, the individual or predator if you will cannot predict what data will be seized. However, when hacking a system, such as that used by a legal firm, they have more of an understanding to what documents they will have access to. The notion of stealing data from a legal firm, with classified information, is for many far too tempting and is an attractive and lucrative proposition; particularly if the personal data can be sold. Both Google Docs and Office 365 host data in shared clouds, meaning that even the most careful professionals have their uploaded documents stored amongst millions of other consumer and business users. These files are saved in data centres located not just in the UK, but all over the world. As a result of this, sharing documents via Google or Microsoft is potentially breaching the basic data protection requirements of many legal firms. With both of these services, you are reliant on external users securing their account properly, and that can be very risky. Questions to ask potential providers To overcome the lack of security with co-authoring providers, new competitors to Google and Microsoft have arrived, creating legal focused collaboration tech, with better compliance and security. If you’re choosing one, here’s 7 key questions that should be considered: 1. Is the default security strong? Users don’t care about security, so the service should enforce things like country level access and multi factor
12 the barrister Michaelmas Term 2018
authentication to stop hackers. 2. Is the support fast? Most firms need real-time help for time sensitive documents. 3. Can the co-authoring provider guarantee you a ‘single tenant server’ (nobody else shares the server). Or even better can the legal team take on all responsibility with the provider by hosting the systems in-house for complete control? 4. Are the providers able to tell you where the servers are located? To have full control of your data, you ideally want the provider to be within the same national borders as your clients. 5. Is the provider ISO 27001 accredited? ISO 27001 means their service is regularly independently audited and all aspects of security have been considered. Without this, you just have to take the providers word that they’re secure! 6. Does it offer comprehensive, tamper-proof trails with real time reports? These reports provide information on all activity that happens on a co-authoring platform, allowing for analysis of files which have been accessed or shared. Can you export back to Microsoft Office formats and maintain layout? Document formatting & layout is critical, and the final document will often have to be stored in Word or Excel format. Conclusion In a number of sectors and industries, Google Docs and Office 365 can be, and are, used daily. However, legal professionals have an extra level of responsibility to reach above a standard level of protection in order to take care of each individual client and their private data. If you want to experience the huge benefits that co-authoring can offer, consider researching alternative data sharing solutions that allow for ultrasecure collaboration, using only an internet browser, with data stored on servers that are solely dedicated to just one firm. It’ll set you apart from your competition and provide reassurance to clients that their data is treated with the utmost care.
Angus Bradley, is the Managing Director at PROJECTFUSION which since 1998 has been providing data security as well as secure data sharing. Angus invented the world’s first virtual dataroom in 2002 and the first business-to-business ephemeral messaging system (safedrop) in 2007. He played a major role in taking UK court document bundles online, and has launched a secure, real time document co-authoring service.
the barrister Michaelmas Term 2018
13
New Manchester Court ruling adds weight to claims banks owe a further £18bn in PPI claims Analysis by Elis Gomer, Barrister at St John’s Buildings
O
n 26 June, 2018, a wildfire spread across the fells above Manchester, causing widespread damage and defying firefighters’ efforts to contain it. Whilst undoubtedly less dramatic, the fire that started in His Honour Judge Pearce’s courtroom at Manchester County Court on the same day – otherwise known as his judgment in the case of Doran v Paragon Personal Finance (1) Limited – will undoubtedly turn up the heat on any financial institution exposed to claims arising from undisclosed commission levels in payment protection insurance (PPI) policies.
Interest in such claims has been rising since the Supreme Court’s decision in Plevin v Paragon Personal Finance Limited [2014] UKSC 61. The judgment in Doran is timely for a number of reasons. It deals with the issue of limitation (a common defence raised by lenders in such circumstances) and provides a useful worked example of how courts approach the relationship between the matters discussed in Plevin and section 140A of the Consumer Credit Act 1974 on a practical level. Perhaps most importantly, however, it all but consigns to the dustbin the FCA’s flawed guidance on Plevin claims and demonstrates that the courts are singularly unwilling to be bound by its terms. The facts were largely undisputed. In 2004, the Claimants, Mr and Mrs Doran, wished to take out a loan. They approached a credit broker, Sterling Direct Limited, and sought a loan of £30,000. They subsequently entered into a credit agreement with the Defendant on 2 June, 2004 in the sum of £40,500, comprising the loan advance of £30,000 and a PPI policy with a premium of £10,500. The loan had a term of ten years. The broker received commission of £3,000 from the Defendant, which was part of a larger commission (totalling £6,336) the Defendant received from the insurer providing the PPI policy; further, the Defendant received a ‘profit share’ of £1,649.46 arising from the sale of the policy. As such, the Defendant received a total sum of £7,985.46 from the insurer as a result of the sale of the policy; this was identified by HHJ Pearce as ‘the gross commission’ and amounted to some 76% of the premium paid by the Claimants. Neither the fact that the commission was paid nor its amount was disclosed to the Claimants. By the time that the Claimants redeemed the loan, shortly before its expiry, they had paid some £14,916.84 in respect of the PPI premium
14 the barrister Michaelmas Term 2018
and accrued interest thereon. They issued their claim in July 2017, more than 13 years after the PPI policy and the loan were entered into but less than five years after the relationship between the Claimants and the Defendant ended. It was the Claimants’ position at trial that they would not have entered into the PPI policy at all had they known that the gross commission amounted to over threequarters of the premium paid. It may be convenient at this stage to restate the implications of Plevin itself. The Supreme Court decided, in a scenario very similar to that described above, that the non-disclosure of the commission rendered the credit relationship between the parties unfair. As Lord Sumption said, “Any reasonable person in [Mrs Plevin’s] position who was told that more than two thirds of the premium was going to intermediaries, would be bound to question whether the insurance represented value for money, and whether it was a sensible transaction to enter into. The fact that she was left in ignorance in my opinion made the relationship unfair.” The relief ordered – when the matter was remitted to the County Court following the Supreme Court’s decision – was that the entirety of the commission, together with the interest paid by Mrs Plevin on the premium over the life of the loan, together with interest on the principal sum, should be paid to her. The FCA’s guidance (policy statement 17/3) in respect of claims of this type is as follows: if a consumer has a compensation claim arising from a Plevin scenario, i.e. where the PPI provider failed to disclose that the premium payable by the consumer included a commission element, the non-disclosure should only be considered to create an unfair credit relationship if the level of the commission exceeds 50% of the total premium. Further – in a second departure from Plevin – the appropriate remedy for the consumer if such an unfair relationship existed is to pay compensation equivalent to the difference between a commission level of 50% and the actual level of the commission (so if the actual commission level was 70%, the remedy recommended by the FCA is that a sum equivalent to 20% of the premium, i.e. the difference between the commission level and the FCA’s notional 50% ‘unfairness’ threshold should be repaid). I have been critical in the past of the FCA’s guidance. I cannot see that there is any principled basis for its basic hypothesis that there is a fixed tipping point at which
a particular level of undisclosed commission becomes unfair (the Supreme Court said no such thing and it is clear that it is the asymmetry of information that Lord Sumption pointed to as the source of the unfairness, not the particular level of commission) and the argument that the appropriate remedy is to repay the excess compensation over and above that notional 50% level is inconsistent both with the relevant legal principles and the actual remitted decision in Plevin. The significance of this in Doran was that the Defendant argued expressly that the compensation should be assessed in line with the FCA’s guidance – in other words, seeking to elevate a fundamentally flawed policy statement by a government agency to the status of a binding precedent. This undoubtedly has a wider significance given that many lending institutions are basing their approach to any intimated Plevin claim on the FCA guidance; saying, in effect, that the FCA guidance note amounts to a ‘cap’ on damages and arguing that consumers ought not to recover above that level. A finding by the Court that this approach was well-founded would have represented a significant boost to that strategy. There were three issues identified as contentious between the parties: i. Whether the relationship between the parties was unfair within the meaning of section 140A of the Consumer Credit Act 1974; ii. Whether the claim was statutebarred; and iii. In the event that the first two questions were answered in favour of the Claimants, what the remedy should be. HHJ Pearce resolved all three questions in favour of the Claimants and ordered the Defendants to repay the sum of £14,849.22 (representing the full premium paid) plus interest thereon. He found that the facts of the case were “strikingly similar” to the facts of Plevin and that the judgment of Lord Sumption provided “strong guidance” as to what would constitute an unfair relationship. He went on to say that “it is obvious that a reasonable consumer in the position of the Claimants in this case would be concerned to find that so large a proportion of what was declared to be the premium for an insurance policy was in fact being paid as commission to the lender…this would undoubtedly cause most people to doubt the wisdom of entering into the agreement.” He rejected the Defendant’s attempts to justify the level of the premium and pointed to the fact that the FCA’s guidance (upon which the Defendant sought to rely in relation to the issue of the level of compensation) expressly stated that commission above the level of 50% of gross written premium was
unfair. HHJ Pearce’s rather damning conclusion was that “the Defendant has simply failed to produce any evidence that begins to justify commission payments at this level.” On the issue of limitation, the judge found that the limitation period for claims of this type was six years, measured from the date that the relationship came to an end (and not six years from the inception of the policy, as contended for by the Defendant). As stated in the judgment, “if the Court is to judge unfairness by looking at the whole of the relationship, it is difficult to see how one could do so without judging that unfairness through the conduct of the parties right through the relationship.” He rejected the contention that it would cause unfairness to the lender to create a potential liability significantly after the acts complained of, pointing out that for so long as the relationship continues, the lender can be expected to keep records that encompass the full course of dealing between the parties. Perhaps most importantly, the judge found that the full PPI premium together with the accrued interest (not the full amount of the commission and certainly not the 26% of the premium which the Claimants would have been entitled to had the FCA guidance been binding) should be repaid to the Claimants. The judge accepted Mrs Doran’s evidence that she would not have taken out the policy at all had they known about the commission level. Accordingly, the appropriate relief was to award the full amount of the premium in damages. HHJ Pearce accepted that this had the potential to overcompensate the Claimants (on the basis that they probably derived some benefit from the PPI policy in terms of peace of mind, regardless of the commission position) but posited three reasons as to why damages should be assessed in this way: i. Given that he had accepted that the Claimants would not have entered into the policy at all if they had known about the commission level, it would be artificial to assess damages on the basis that there was some notional ‘proper cost’ to a PPI policy that would not be unfair; ii. Given, also, that the remedy is one that arises from the inherently unfair relationship between the lender as the ascendant party and the borrower as the weaker party, the Court should err on the side of the party who has been treated unfairly; and iii. Perhaps most importantly, the judge stated that he was “far from satisfied” that the figure of 50% of the premium (the FCA’s ‘tipping point’) reflects a proper figure for commission. This holes the FCA policy statement below the waterline. The guidance provided is predicated on the notion
that 50% is a bright-line threshold for unfairness in this context and that questions of liability and quantum should be judged by that standard. The basis for that position was always shaky – no principled reasoning for it has ever been advanced – and the decision in Doran shows it to be a castle built on sand. This has far-reaching ramifications. Banks have been calculating liability reserves based on the twin assumptions that (a) premiums with levels of commission below 50% would not be found to be unfair; and (b) their exposure is limited to the difference between the actual commission level and the 50% ‘tipping point’, per the FCA formula. Both of these assumptions, based on the decision in Doran, are seriously misguided. Indeed, the situation is worse for the banks than they feared as the decision in Doran goes beyond the compensation level in Plevin (which was limited to the entirety of the commission plus interest, as opposed to the whole premium) and raises the distinct possibility that commission levels which are below 50% but nonetheless significant will also come under attack. The sheer volume of potential claims (some industry sources believe there could be as many as 10 million claims extant) together with the difference in the level of compensation between the Doran standard (as opposed to the FCA’s model) would increase the banks’ overall contingent liability for PPI by a huge level – if every claim were settled on the FCA’s assessment of the situation, the banks’ liability would be £4.675bn, whereas if every claim were settled on the basis of the Plevin decision, the liability could spiral to as much as £18.42bn. On the Doran basis, that liability would be greater still. It should be pointed out, on the other hand, that this is a County Court decision (albeit one by a well-respected circuit judge who also sits in the High Court) and is not binding on other courts, though it is undoubtedly going to be highly persuasive. It should also be pointed out that the judge emphasised that cases will always turn on their own facts. There may yet be an appeal of the decision (although the Defendant may well be wary of elevating a County Court decision to the status of a binding precedent) so this particular chapter may not be the end of the story. As matters stand, however, financial institutions may be forgiven for feeling that it is getting decidedly warm in this arena. This fire will burn for a while yet.
the barrister Michaelmas Term 2018
15
Fraud on the Rise: How Both Criminal and Civil courts Can Assist Victims By James Le Gallais, Counsel and Craig Hogg, Trainee, Peters & Peters Fraud is on the rise, with the total value of reported fraud in the UK hitting the £2 billion mark according to recent research, representing a 500% increase over the last 15 years. Not all victims are individuals, with large corporations increasingly coming under attack: half of UK organisations say that they have been the victims of fraud and/or economic crime in the last two years, with more than half of the most disruptive crimes resulting in losses over £72,000. Indeed, larger corporations are a particular target for cyber fraud, with hacked email accounts being used to impersonate genuine counterparties and to doctor invoices, and thereby divert large sums to bogus bank accounts controlled by fraudsters. When a fraud is detected, victims’ responses rightly first centre on damage limitation or reporting matters to the police, but other options are available. Although the civil courts may not be a victims’ first thought when a serious crime has been committed, civil actions should be considered alongside criminal proceedings, for both regimes offer certain strengths which can be deployed against fraudsters. Securing Stolen Assets In cases of fraud, the prospect of recovering any assets at the end of the legal process often depends on how quickly stolen money or assets can be secured at the outset. Fraudsters are savvy and will try to hide assets or place them out of reach of the courts as quickly as possible. Once that happens, the chances of recovery under any legal process are greatly reduced. The civil courts are equipped with a suite of interim remedies which can be deployed within days after a fraud has been discovered, aimed at securing money and assets pending a trial. Victims can obtain freezing and disclosure orders against fraudsters and third parties such as banks, which, if obtained in time, are extremely effective tools for locating stolen money and preventing its onward transfer. As soon as a bank is notified of a freezing order (which should be sent to the bank’s fax or email address dedicated for that purpose) it will immediately freeze all accounts in the name of the defendants. The civil courts are prepared to be flexible and innovative in their deployment of such remedies. In a recent case involving a complex cyberfraud , the Commercial Court granted a worldwide freezing order over assets of ‘persons unknown’, i.e. against unnamed defendants who were identified only as participants in
the alleged fraud and/or as the legal or beneficial owners of specified bank accounts to which money had been transferred. Similar remedies exist within the criminal justice system, most notably in the form of restraint orders issued under the Proceeds of Crime Act 2002, which operate in a similar way to civil freezing orders and prevent fraudsters from dealing with realiseable property held by them, that may later be subject to a confiscation order (see below). The Criminal Finance Act 2017 has recently introduced “account freezing orders”, which can be obtained on an urgent basis by criminal authorities to freeze bank accounts containing money that may be recoverable or is intended for use in unlawful conduct. However, victims can often experience long delays in encouraging the police to investigate a reported crime, with many cases not progressing to trial at all. Public resources are stretched, and many reported cases of commercial fraud are diverted away from the criminal justice system by the police, ultimately deprioritised as civil matters. Public prosecuting authorities are wary of deploying restraint orders in all but the clearest cases, given that they may be ordered to pay the target substantial legal costs if the investigation does not proceed. It is possible for victims to launch a private prosecution, but while this may overcome the delays in dealing with the police and vest a far greater degree of control in the hands of the complainant, it is not possible to seek restraint orders or account freezing orders in a private prosecution: these are reserved for law enforcement agencies. Progressing to Trial Trials involving serious allegations of
16 the barrister Michaelmas Term 2018
fraud take significant time to prepare and prosecute in both the civil and criminal jurisdictions. Civil trials are usually heard before a specialist judge, whereas criminal trials take place before a jury, who may struggle with complex frauds in the unfamiliar context of commercial or business activity. Much is also made of the fact that the civil standard of proof is lower than in criminal cases: this is true, but civil judges expect to see cogent and compelling evidence of serious allegations such as fraud, placing a heavy evidential burden on the civil Claimant. However, in cases involving clear fraud before the civil courts, a full trial is sometimes unnecessary – either because there is no defence to be advanced or, if interim freezing orders are successful in identifying and stopping stolen money or assets before they leave the jurisdiction, there is no incentive to maintain a defence to delay enforcement, for example. Claims can be settled at an early stage or judgment entered on a summary basis. Claimants retain complete control of the process. They can decide with which Defendants to settle and on what terms – whether repayment of the stolen money or cooperation against other, deeper pocketed Defendants. Remedies In terms of remedies, criminal courts offer the ultimate sanction over fraudsters: imprisonment, and, for the victim, the important sense that justice has been delivered. But they do also offer some economic redress, and following a conviction, a prosecuting authority can seek a compensation order against the defendant, requiring a convicted defendant to pay compensation to his victim(s).
In addition, confiscation orders may be imposed, requiring a convicted defendant to pay the amount of his benefit from crime to the government (with further provision made for victims to be paid from confiscated sums) or face an extended period of imprisonment. While this undoubtedly will focus minds in individual cases, confiscation proceedings are prone to be dragged out by shrewd Defendants, and the overall impact of such orders on the national criminal economy would appear to be nugatory: the National Audit Office reported in 2016 that only 26p in every £100 was confiscated from criminals. Civil damages or compensation is intended to put the Claimant back into the position they were in before any wrongdoing occurred and will generally do so as long as there are sufficient assets to enforce against. Over time, the civil courts have evolved sophisticated methods of tracing the Claimant’s ownership of the stolen money as it is transferred between accounts and into property purchased with the stolen funds. Such remedies are a powerful weapon for victims as they can be deployed to reclaim property in the hands of third parties and from insolvent individuals and companies in priority to other creditors.
importance of freezing orders and securing assets early, much of the cost is frontloaded and must be borne when the Claimant has already lost substantial sums through the fraud. This financial burden can, however, be mitigated through conditional fee agreements, after the event insurance and, increasingly, third-party funding agreements, where someone who is not involved in litigation provides funds to a party to that litigation in exchange for an agreed share of the proceeds. In the UK, litigation funding has received a judicial seal of approval in the Jackson Reforms, and there is increasing professionalisation of the field through the operation of a Code of Conduct, devised and enforced by a self-regulating body. Parallel Proceedings With the relative advantages outlined above borne in mind, and with private prosecutions on the rise, it is no surprise that both corporate and individual victims of substantial fraud are increasingly looking to parallel criminal and civil proceedings to protect their interests and bring perpetrators to justice. However, such an approach has traps for the unwary. To give just a few examples: •
it is impermissible to use the threat of criminal proceedings to gain an advantage in a civil claim – this may in itself amount to the criminal offence of blackmail. Such difficulties often arise in civil settlement discussions;
•
evidence obtained in civil proceedings cannot be passed to
Costs The primary drawback to civil fraud claims is cost. Funding a civil fraud claims is very expensive, and the burden will be on the Claimant to thoroughly investigate and prove its claim. What is more, given the
the police (or used for any purpose other than those proceedings) without express permission of the court; •
commencing a private prosecution may require disclosure and waiver of privilege over communications between a Claimant and its legal advisers in civil proceedings.
In cases where a parallel approach is considered the right course, it must be managed carefully and by experienced practitioners in each jurisdiction. Clients need specialist advice from those familiar with both regimes to ensure that victims are in the very best position to recover assets and to bring fraudsters to justice.
Peters & Peters Leading UK law firm with expertise in Business Crime, Commercial Litigation, Civil & Criminal Fraud, Corporate Compliance and Asset Tracing & Recovery www.petersandpeters.com
The barrister magazine will not accept responsibility for information supplied by other parties, views expressed may not necessarily be that of the editor or publishers.
the barrister Michaelmas Term 2018
17
Securing status: the importance of immigration legal aid for children in local authority care By Kamena Dorling, Group Head of Policy and Public Affairs at Coram
S
ince the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), Coram and other children’s charities have highlighted the negative impact of the removal of legal aid for immigration cases on children. Without access to legal help and representation, children can struggle to advocate effectively for their rights, leaving them at risk of being cut off from education, healthcare, support, and even facing removal to another country. Children in the care of children’s services are particularly vulnerable. The laws, processes and systems governing their circumstances are complex and while social workers have a duty to plan for the long-term future of a child in their care, they are rightly prohibited from assisting children in making immigration applications because immigration advice is heavily regulated. In light of these challenges, the Ministry of Justice’s announcement in July that immigration matters for unaccompanied and separated children in care will be brought back into the scope of legal aid ‘to ensure access to justice’ was widely welcomed. It followed years of campaigning and strategic litigation and will be a vital first step towards ensuring that these children and young people receive the legal support they need. This will include young people like Raheem, who came to the UK from Jamaica with his parents when he was seven. During his teens, relations with his father broke down and after a period of physical abuse he was taken into care at the age of 15. Although he arrived on a tourist visa, Raheem’s permission to be in the UK had long since lapsed and he was living in the UK with no ‘leave’ (permission) to remain. As a child who had grown up in the UK he had a strong claim on human rights grounds to remain in this country but, although his social worker was aware of the issue, nothing was done to address his immigration status before he turned 18. Aged 19, the young person’s personal advisor called Coram’s Migrant Children’s Project advice line to ask for help. At this point he was undocumented and was unable to work, study, claim benefits or even open a bank account, and had no contact with his birth family. The
18 the barrister Michaelmas Term 2018
local authority recognised their mistake and agreed to pay for his legal representation. As he was no longer a looked after child and therefore no longer exempt from paying fees to make an immigration application, they also had to pay for these – the total cost coming to £5,000. There are currently thousands of children in the care of children’s services (meaning that they are either looked after under section 20 of the Children Act 1989 or are formally in care) living in the UK with a variety of immigration statuses. While there is often much focus on unaccompanied children seeking asylum, there are several thousand children in local authority care where immigration is the primary issue, not asylum or trafficking. The University of Oxford has estimated that there are over 100,000 undocumented children in the UK, over half of whom were born here, but they are a hidden population. Coram’s Migrant Children’s Project alone advised nearly 250 separated children and young people with an out-of-scope immigration issue over the past year. Yet, many of these children’s immigration issues go unaddressed. With heavy workloads, urgent safeguarding concerns and budgetary pressures, it is perhaps understandable that many social workers do not have an understanding of the immigration system. Practitioners working with these children, and often the children themselves, assume that because they may have lived in the UK or been in care for a long time, they must be British, especially when supporting those who arrive as very young children from countries such as Nigeria and Jamaica. But for children who are undocumented, resolving their immigration status is a crucial part of planning for their futures, as their status will determine their eligibility for work, further and higher education, healthcare and state support. The laws, processes and systems governing their circumstances are complex - the Supreme Court has described UK immigration law as ‘an impenetrable jungle of intertwined statutory provisions and judicial decisions’. To support a claim that it would be in the best interests of a child to remain in the UK, it is necessary to gather
extensive evidence demonstrating the extent to which a child has developed a personal life and connections within the UK, as well as information on the family circumstances in both the UK and the country of origin. Expert evidence, for example from child psychologists, is often required, as might be evidence from a child’s carer, teachers, therapists or medical professionals, mentors and friends. The complexity of the law in this field means that people frequently do not have an adequate understanding of the substance of the law, how it applies to their case and how to articulate their arguments in writing or before a tribunal or court. This can be exacerbated by language barriers and difficulties with literacy and comprehension. There are routes open to an undocumented child to regularise their status that become closed to them once they have turned 18. It is also possible for a child in care to make applications that recognise their unique vulnerabilities and that their futures lie in the UK, such as an early application for indefinite leave to remain. However, such applications cannot be made if a child cannot access immigration advice and representation and to realise their rights, these children require specialist advisors. While social workers have a duty to plan for the long-term future of a child in their care, they are rightly prohibited from assisting children in making immigration applications because immigration advice is heavily regulated. A failure to assist the child in care to obtain legal advice and representation where it is needed amounts to a breach of statutory duties. In a recent Local Government Ombudsman decision, the Royal Borough of Greenwich was found to have failed in its duties to assist a child in care to obtain representation and regularise her status. The authority was order to pay compensation of £5,000 and issue an apology. It was also told to improve practice and ensure staff were sufficiently trained. A similar finding was made against Dudley Metropolitan Borough Council when the local authority failed to obtain quality legal advice on citizenship for two children in care.
For those children accommodated under section 20 of the Children Act 1989, Department for Education statutory guidance sets out that local authorities’ obligations extend to considering their need to have their immigration status issues resolved as well as their need for legal services. However, since 2013 when the legal aid changes under LASPO came into force, local authorities would have had to pay for lawyers at private rates which are likely to be significantly more expensive than legal aid rates. It has been estimated that the cost shift onto local authorities from LASPO amounts to £10 million a year. Coram estimated that the restoration of legal aid for all migrant children in care would result in at least an estimated £4 million annual saving. The reintroduction of legal aid for separated children removes the financial disincentive for local authorities to take proactive steps to address immigration concerns, but the following legislation will need to ensure that all immigration and nationality applications are covered by legal aid. It is also crucial that the Ministry of Justice and the Department for Education undertake a campaign to inform local authority front-line staff of the forthcoming changes, so that there is no delay for children in need of legal help. This is all the more important in light of the forthcoming EU settlement scheme, which will affect over 600,000 children currently living in the UK. Despite government claims that this scheme will be simply and easy to access, looked after children are likely to have complex cases and need expert advice.
Find out more about Coram’s Migrant Children Project at: childrenslegalcentre.com/ migrant-childrens-project
the barrister Michaelmas Term 2018
19
Cognitive Bias in Fingerprint Evidence: Does the alleged ‘matching’ ridge detail even exist? By Simon Bunter, Forensic Scientist, Keith Borer Consultants
C
ognitive bias is not an intentional form of bias but one that manifests itself in different forms in most aspects of day-to-day life. It occurs when the presence of extraneous information influences a person’s opinion of a subjective matter. Numerous scientific articles have been written regarding cognitive bias in forensic science, many of which warn about its adverse impact on the inherently subjective field of fingerprint evidence. There appears a commonly held view amongst police Fingerprint Examiners that they are immune to such bias because they are able to ‘use their expertise and experience to nullify it’; nothing could be further from the truth. Ironically, dismissing cognitive bias is a type of bias in itself – ‘blind-spot bias’. Examples of the types of situation where cognitive bias can be introduced to the fingerprint comparison process include: •
•
• •
•
A police officer informing an expert that the suspect was seen holding the item on which the questioned fingerprint was found. The verifying experts being aware that the original examiner has already ‘identified’ the fingerprint to the suspect. Job satisfaction – a fingerprint identification is generally perceived as a ‘good’ result. Performance evaluation – the performance of some Fingerprint Examiners and even entire Fingerprint Bureaux have previously been assessed by the number of identifications they have found. And most importantly... The suspect’s fingerprint form itself – the main focus of this article.
Crime scene marks received by Fingerprint Examiners are often poor quality with indistinct, smudged and distorted areas. As a result, ridge characteristics (the features mainly considered during fingerprint comparisons) are frequently unclear with even their very presence being ambiguous. Conversely, a suspect’s fingerprint form is made up of good quality fingerprints taken from a person in controlled conditions. Currently... When examining fingerprint evidence from crime scenes, Fingerprint Examiners loosely follow a methodology known as ACE-V (Analysis, Comparison, Evaluation and Verification). It is the manner in which this process is carried out that
can affect the validity of an expert’s result. Currently, the ‘analysis’ stage tends to consist of a brief look at the crime scene mark to determine whether it is suitable for comparison. Normally the Examiner does not make notes of features observed during this important part of the process, instead moving straight on to compare the mark side-by-side with the fingerprint forms of any suspects. Once the comparison commences, cognitive bias comes into play. The good quality fingerprint in the suspect’s reference form can cause the expert to ‘see’ corresponding ridge detail in the poor quality crime scene mark that simply does not exist. In other words, the clear ridge characteristics in the suspect’s fingerprint can persuade the Examiner into ‘finding’ supposedly corresponding ridge characteristics in the crime scene mark; detail that they otherwise would not have observed. This is known as ‘circular’ or ‘reverse’ reasoning and can result in Fingerprint Examiners making exaggerated or unrealistic claims regarding the certainty of their result and the number of matching ridge characteristics that exist. A good example of this occurring is in the case of R-v-Smith (2011). Although the 16-point standard was abolished in 2001, many Examiners still record the number of matching ridge characteristics in their evidential statement or Stage 2 SFR. It is often professed that a greater number of ridge characteristics is a ‘safer’ identification than a lesser amount; however, it is the quality of ‘matching’ features which should take centre stage, not simply the number. For example, a Fingerprint Examiner’s claim that there are ‘18 matching ridge characteristics’ might sound like a compelling match whereas, in reality, the vast majority of these characteristics might be extremely questionable. Equally, the existence of differences should be highlighted and explored. Strictly speaking, one confirmed different ridge characteristic should be enough to exclude a suspect. Unfortunately, one consequence of the current methodology is that apparent differences between the mark and the suspect’s print are frequently disregarded; once the Examiner starts to find similar characteristics, any detail that looks different is simply ‘explained away’. Although cognitive bias is not a concept new to the fingerprint community, very little, if anything, appears to be changing in Fingerprint
20 the barrister Michaelmas Term 2018
Bureau procedures to nullify such bias. In 2011 a public inquiry into the erroneous Shirley McKie fingerprint ‘identification’ resulted in 86 recommendations being made. Several of these recommendations detailed specific actions that Fingerprint Examiners should undertake during their examinations in order to tackle the problem of cognitive bias. Many of these important recommendations have gone unheeded and many Fingerprint Bureaux continue to work in the same way as before. The Solution? Adopt a ‘linear’ approach to the ACE-V examination process. This involves analysing the crime scene mark in isolation of the suspect’s reference fingerprint form. An image of the mark is annotated with the ridge detail observed prior to any comparison. These annotations are retained to show the exact detail the Examiner observed prior to any influence induced by sight of the suspect’s fingerprint form. When applied correctly, this accurate and transparent mechanism can serve to highlight just how exaggerated some fingerprint evidence really is. In a number of cases this approach has shown the fingerprint evidence to be unreliable and far from the ‘conclusive’ result initially claimed. For example, in the case of R-vKiseliov (2016) a palm print in blood on a doorframe was ‘identified’ by a police Fingerprint Examiner and described as having ‘18 clear ridge characteristics in agreement’. When a linear approach to the ACE-V examination was adopted, however, only 1 of the alleged 18 ridge characteristics could be clearly observed in the crime scene mark. The remaining 17 characteristics relied on by the police were either not observed in the bloody palm mark at all or were shown to have been influenced by the defendant’s palm print form. After this was demonstrated in the witness box, Mr Kiseliov was found not guilty. So just how safe is that fingerprint identification in the police expert’s SFR1? Is it a safe and compelling match or is it another example to add to the growing list of cognitive bias affected cases that include Shirley McKie, Brandon Mayfield, Peter Smith, Andrej Kiseliov and so on?
Simon Bunter Forensic Scientist Keith Borer Consultants 0191 332 4999 www.keithborer.co.uk
the barrister Michaelmas Term 2018
21
Meeting the data governance challenge of ephemeral messaging By Albert Barsocchini, Director of Client Advisory Services, NightOwl Discovery
Ephemeral messaging, typified by Snapchat or WhatsApp’s time-limited messaging features, may at first glance appear to have no place in Chambers. This type of encrypted selfdestruct messaging, however, is in increasing use within the legal world for sharing confidential information. The attraction of ephemeral messaging is that the content of the messages automatically disappears from the recipient’s device within a short time of receipt. It is very difficult to capture and store information sent in this way, or send it on to third parties. As a result, organisations are turning to this channel of communications when they need to conduct a confidential investigation or to prevent leaks of sensitive information. The issue is that information shared through self-destruct messaging is kept off corporate systems and is not available later on, should a process of litigation or legal discovery begin. This is set to cause major headaches for barristers. As the use of the technology in the corporate environment is relatively new, legal precedents are yet to be set. Uber employees’ use of ephemeral messaging app Wickr came under legal scrutiny at a pre-trial hearing of a trade secrets case. Timothy Heaphy, a lawyer at Hunton & Williams
and a former U.S. Attorney in Virginia, was reported as commenting that although there is nothing inherently unlawful about instructing employees to use disappearing messaging apps, companies do have an obligation to preserve records that may be reasonably seen as relevant to litigation or that fall under data retention rules set by industry regulators1. Information governance to self-destruct messaging Ephemeral messaging holds undeniable appeal when it comes to sensitive negotiations or confidential communications. But barristers need to be realistic about how this will look when it comes to compliance or future litigation. The existence of secret, recorded conversations taking place in the context of Chambers is at the very least likely to ring warning bells. If the technology is to be used at all it is vital to have strong policies and controls that recognise Chambers’ obligation to
22 the barrister Michaelmas Term 2018
preserve data. Best practice in information governance is to set controls even before document are created and certainly before they are shared. Normally, controls would include labelling the document by category and content, setting time limits for the storage of documents, known as time-to-live or TTL, and restricting access permissions by job role or geographical location. None of these requirements goes away simply because barristers are using ephemeral messaging but all of this is achievable on a single corporate ephemeral messaging technology platform like Wickr. Chambers should assume that barristers are or will be using ephemeral messaging and put steps in place to address that: 1. Bring secret messaging out into the open. Let barristers and clerks know that the Chamber understands there will be circumstances in which ephemeral messaging makes sense. Create a culture of transparency around its use that will enable a meaningful audit of the Chamber’s usage of ephemeral messaging and creation (and deletion) of ephemeral data.
Which platforms and features are barristers using? Track any changes to keep policies and controls updated. Currently, it would appear that where the corporate document retention policy provides for the routine deletion of data and there was no existing duty to preserve at the time the information was destroyed, no legal issue of spoliation arises. But that could change in relation to ephemeral data, as case law is created. 2. Create a multidisciplinary team to set acceptable use definitions and access permissions. Heads of Chamber, Silks, barristers and clerks should be represented. This team should meet regularly to review how the Chamber is currently using ephemeral messaging and what data is involved. The next step would be to consider all possible scenarios where documents and data subject to regulatory requirements may end up being transmitted and destroyed by time-limited encrypted messaging apps. This should be a constructive approach that aims to determine acceptable uses of the technology and log them in a centralised and accessible acceptable use policy manual. This team should also determine permissions for
individuals or groups of employees to use ephemeral messaging, similar to access control permissions applied to Chamber computer networks. 3. Communicate regularly with barristers about how they should and shouldn’t use ephemeral messaging in real life scenarios. Individual barristers and clerks may be given access to relevant data and documents held on the formal in-house intranet through a system of access controls that works in the background. In the case of ephemeral messaging it may be more a matter of making it clear to them what they are allowed to share and clarify exactly when it could become an issue if important data is encrypted or deleted by ephemeral messaging systems. Communications might extend as far as mandating training modules so that there is consistent understanding of the acceptable use of and issues around ephemeral messaging throughout the Chamber. Completion of training also provides clear evidence that the Chamber has a clear view of its data governance responsibilities on every possible platform. The growing number of high profile data breaches and the recent tightening
of data protection legislation is having a positive impact in driving awareness of everyone’s role in keeping data safe. The danger is that this heightened awareness will drive barristers into the arms of ephemeral messaging apps – with the resulting potential for loss of crucial data and a resulting catastrophic impact on the reputation and business of the Chamber. It is crucial to act now and address the risk of misuse and non-compliance that comes with this new technology by first getting clear picture of how it is used and how it might be used in future within the Chamber. In the light of these findings, Chambers should be looking to develop their data governance policies to reflect new realities around ephemeral data. A strong usage policy helps demonstrate that barristers within the Chamber are using selfdestruct technology responsibly and in good faith for legitimate reasons and is key to compliance.
About the author Albert Barsocchini is Director of Client Advisory Services, NightOwl Discovery. Reference 1 https://www.reuters.com/article/ us-uber-waymo-evidence/ubers-useof-encrypted-messaging-may-set-legalprecedents-idUSKBN1DU099
the barrister Michaelmas Term 2018
23
Augmented Service: How the Bar avoids the pitfalls of funding advice By Matthew Amey, The Judge Limited and Matthew Clark, Cardium Law
The Public Access Scheme (or Direct Access) is a growing alternative to instructing solicitors. The bar portal is currently attracting increasing numbers of entities interested in having a more barrister intense relationship. Many sets of chambers seek to attract Direct Access clients and compete with solicitors for work. Not an easy task where there are just under 10,000 self-employed barristers and approximately 135,000 solicitors. There is a growing perception that solicitors are an initial unnecessary layer of expense often duplicating costs. Direct Access can cut through those costs but there are some pitfalls. In general terms these include such matters as: • • • • • • •
Dealing direct with demanding clients - both corporate and individuals; Communicating with Defendant lawyers; The paper bureaucracy for each piece of client work; Day to day claim management within a busy diary; The wide scope of costs advice that a barrister must impart; The funding conundrum - knowing how to work with litigation funders and After-The-Event (ATE) insurers (along with the broker networks for each); Coping with voluminous amounts of documents and the new e-disclosure requirements;
manage costs on a limited budget. These type of litigants (as is the case for the majority of litigants) are likely to be cost sensitive and seeking funding solutions. Funding solutions, as many members of the Bar know, are premised on appropriate advice on merits and quantum. This can open the door to the procurement of an ATE policy which then can form the security required by a funder in order to facilitate different types of funding. Currently, there are several things that prevent barristers from effectively advising their clients about the litigation funding options: 1. Experience and knowledge of the market At a high level, many barristers will be well versed in how litigation funding and ATE insurance operates in England & Wales but it would not be surprising if the majority, when asked, admitted to knowing very little about these two distinct industries. Few will have had experiences of interaction with the market directly. For example, the following require consideration: • •
• The funding conundrum It is logical to surmise that litigants, or potential litigants, seeking Direct Access do so in order to
24 the barrister Michaelmas Term 2018
• •
What can ATE insurance cover and how do clients fund the purchase of a policy? Should the client seek a complete litigation funding package or is it more cost effective to mix funding with a Conditional Fee Agreement or Damages Based Agreement? What is the most appropriate legal services contract for the client (a barrister has 7 options to select from) and what about conflicts? Does a full cost budget need to be prepared and who will produce it? Who works out likely adverse costs and what
•
advice covers this issue? How do funders and insurers interact with barristers and clients?
Firstly, there is the conceptual question of the how the products work in practice. For instance, what features of the products are best suited for the client’s situation? Overlaying this is the secondary question of who are providing these products and how are they accessed effectively? It would be surprising if many barristers were confident enough to describe themselves as up to speed with what the modern market is offering and who is offering it. How realistic is it for busy barristers to have the volume of experiences and interactions needed with these markets to be able to feel comfortable that they are assisting the client in getting a good deal? How safe is it for them to hold themselves out as capable of doing so?
The solution An obvious solution to many, if not all, of the above issues is to create a symbiotic relationship between the barrister and a SRA regulated law firm designed to provide services to barristers, specifically to enable litigation to be conducted in a manner led by the barrister, which avoids duplication of costs and at the time facilitates litigation funding and insurance arrangements. This opens up the market beyond the LARR enabling barristers to manage more complex, data heavy claims where funding and insurance are explored at the outset. Reputable SRA regulated law Firms will find clients to bring to the Bar and will assist with the design of cost budgets that sit on the legal structure as devised by the barrister. Such models give applications for funding a greater chance of success, compared with a barrister operating in isolation.
2. Regulatory hurdle
The future could see barristers taking a far more active role in the question of funding provided they ensure they have the protection of outsourced services such as brokers and augmented legal services.
The litigation funding market is not currently regulated in England & Wales, so a barrister does not need a licence to assist their client in this regard, but the opposite is true for ATE insurance.
Matthew Amey – TheJudge Limited – Litigation Funding & Insurance Brokers matthew.amey@thejudgeglobal.com thejudgeglobal.com
Insurance mediation activities are regulated by the Financial Conduct Authority (FCA). A barrister cannot simply start advising a client about their insurance needs and the suitability of specific products to meet those needs without a licence or an exemption. Solicitors who have properly registered for an Exempted Professional Firm (EPF) status with the SRA have that status because of the SRA’s standing as a Designated Professional Body under Part XX of FSMA 2000. This exemption applies to ATE insurance provided the arrangement is incidental to the provision of professional services.
Matthew Clark – Cardium Law enquiries@cardiumlaw.com cardiumlaw.com
The major complication for barristers is that there is no corresponding Designated Professional Body through which they can qualify for exemption to FCA regulation. This a very clear and continuing hinderance to Direct Access as a concept. Those clients most likely to need it for cost considerations, will almost inevitably have a need for adverse costs insurance and security for costs solutions. Their barrister would be providing advice without a licence were they to introduce insurers to the client and discuss how the products could be tailored to meet their needs. Indeed, simply submitting an insurance Proposal Form under instructions from the client to the insurer could amount to a breach. 3. Funding Hurdle One of the major issues raised by litigation funders is the inability of barristers to hold client money which, in turn, means that a barrister has material difficulties providing an undertaking to make payments (under a Litigation Funding Agreement) from damages. Although there are convoluted ways to resolve this issue, the practicalities are a significant barrier to barrister/funder relationships.
the barrister Michaelmas Term 2018
25
Accreditation of a Constantly Developing Science Matthew Jackson Provides an Overview of the Current Attempts to Regulate Digital Forensic Evidence
I
n October 2017 the Forensic Science Regulator (FSR) it became a mandatory requirement for all digital evidence produced by the Prosecution to comply with the ISO 17025 standard. The requirement for those producing such evidence to a standard originally introduced in 1999 has caused and continues to cause significant issues and limitations. When I speak to any of the number of Police Forces that I deal with up and down the country, the main topic of conversation is the work involved in moving towards, obtaining and maintaining the ISO 17025 standard. Hi-Tech Crime Unit’s and businesses have been required to employ additional members of staff to replace experienced examiners needed to move from their normal roles to solely focussing on the ISO standard or, where they could not be replaced, the number of staff conducting examinations has simply reduced. Obviously smaller organisations simply cannot afford to devote such amounts of time and resources to attaining the standards set by the FSR even if they employ experienced experts and practitioners. This increased level of ‘red tape’ is being introduced within an environment that involves a continually changing and fluid science and which generates an increase in workload for those units of approximately 20% year on year, whilst annual budgets to Police Forces are being consistently reduced. The difficulty when ISO 17025 is used to accredit digital forensics is that, unlike fingerprint or DNA forensics, computers, mobile phones and the programs and files present upon them are continually changing. Whilst ‘wet’ forensics, such as DNA and fingerprint, is normally based upon a finite substance or print that cannot be copied, once a forensic copy of a device has been taken it can be verified as being accurate and complete and becomes the best evidence that can be copied as many times as necessary and whilst any alteration is difficult it can be easily identified. Digital forensics has always involved
the continual development of new techniques and procedures in order to keep up with the changes and development of the subject matter, every year a new raft of software is released along with continuous development of the devices upon which to use it, whereas fingerprints, though techniques may change over time, the subject does not. To expect completely different sciences to fall under the same ISO standard, particularly when one of those sciences (digital forensics) was developed after the introduction of that standard, simply because another more relevant standard is not available, will not fulfil the intended purpose of raising standards and may actually have adverse effects on the identification and interpretation of evidence. The main issue that arises from the introduction of the standard specifically for digital forensics is the amount of work and the level of resources involved in firstly attaining but then continually involved in the validation of processes and techniques under ISO 17025. The identification of a suitable technique to retrieve and interpret evidence is based upon a vast number of variants not least the device containing it, the type of data involved and the location of it. The examination of Internet history on a computer hard drive, for example, is completely different to the process involved in examining a mobile phone for WhatsApp chat messages. Even the examination of two different mobile phones for the same data can involve completely different processes in order to retrieve the evidence from them. Some computers are now cloud based, meaning that no data is stored on a hard drive within them, instead the user data is retained online. Therefore, an examination of that of a normal computer requires different techniques and procedures in order to retrieve the evidence than a normal desktop computer. Under ISO 17025 it is not possible to complete the examination of any devices or data without each process first being validated.
Given that a verified forensic copy of the data contained on the device should already have been taken and cannot be edited, validation of any extraction techniques can normally be made by comparing the data taken with the data contained on the forensic copy. Where data cannot be interpreted correctly either as it is a new process or as it is not recognised by standard forensic software, the process becomes one of resource. Does the unit now follow the validation process when it encounters any new problem or does it avoid it altogether and ignore that source of information. One example of this is, due to cost and time constraints, evidence from mobile phones and computers is now often being recorded by the officer in the case rather than the digital forensic unit, to avoid it being sent to the overworked digital forensic units with lengthy backlogs. Just this week I dealt with a case where the Prosecution evidence in the case has been produced by the officer in the case rather than the digital forensic unit. They did not want to seize the phone from the complainant as that would leave them without their phone for months, instead they decided to photograph key messages on that phone that the complainant showed them on the handset. A year later, the Defendant now having been charged, claims that other messages on that mobile phone not recorded by the Police officer were relevant to his case and would assist his defence. Neither the phone nor the other messages contained on the device are available to the defence as they were not recorded by the Officer and a forensic copy or extraction of the content of the phone was not taken and it is no longer being used by the Complainant who, presumably along with the Defendant, has replaced it with a newer version within the last 12 months. Therefore, the Defendant does not have the ability to provide the evidence that he suggests was available to the Police at the time of their investigation, as it is no longer available.
When a new technology, application or file system is encountered by a practitioner or unit, which it often does particularly when software updates and changes in user activity are accounted for, under ISO 17025, an experienced practitioner is required to carry out various validation techniques and then produce a validation plan that is then reviewed and assessed by a further experienced practitioner. Only then can the new process be used.
One highly publicised failure within the legal system in December 2017 occurred at Croydon Crown Court and involved the disclosure of mobile phone text messages. Messages that assisted the Defence case were not disclosed by the Prosecution until after the Trial had commenced and led to acquittal. However, this issue was not as a result of the method of examination of the device, it was the failure for the Police to disclose the data from the phone that caused the case to collapse after the Trial had begun.
This inflexible approach is difficult and time consuming to undertake, even an update to forensic software, most are updated monthly to keep pace with changes in technology, or the change of a component in a forensic computer, requires a full validation check.
The introduction of the ISO 17025 standard to digital forensics will not assist in the two cases above as the evidence, consisting of mobile phone messages, had either not been obtained by the Police or had been obtained but not disclosed. Both meant that the
26 the barrister Michaelmas Term 2018
defence did not have the ability to review and use text based messages from a complainant that could be relevant to their case but not to that of the Prosecution.
whilst still maintaining the high standard that those in the legal system should expect.
The adherence to certain forensic standards is not new and the improvement of standards within the Perhaps a new standard should forensic arena, particularly in relation be developed to better reflect the requirements involved in examining and to the legal system, should certainly be encouraged. investigating digital forensic evidence. Perhaps, that standard could help to ensure that the forensic copies of an Exhibit are produced accurately and with integrity, as it is those forensic copies that form the basis of investigations and cases. Any challenge of the interpretation of that data from that point can be reviewed and assessed by an independent practitioner as long as a verified and accurate forensic copy of the Exhibit was initially acquired. Whilst ISO 17025 may indicate the processes followed by a laboratory are in accordance with that standard, it does not mean the interpretation of the evidence by the examiner was correct which is, when full disclosure has taken place, almost always where the main disagreement between experts lies in disputed cases. Focus may also be better spent on increasing the knowledge, experience and technical ability of the examiners and practitioners, which has already improved greatly over the last 15 years. This would make those professionals involved in the examination of digital evidence more responsible for verifying and validating their work and the evidence produced from it which would ensure more thorough examinations of digital devices as well as more accurate interpretation of the data which is almost always a subjective process. Focussing on the individuals would also provide better trained and informed expert witnesses at court who would be better placed to identify and develop more suitable examination techniques
However, when that ‘improvement’ consists of the introduction of a dated ‘best fit’ ISO standard to a new and continually developing science, causing increased work levels and backlogs, it will not improve the quality of work produced by the Prosecution, in fact it may well have the opposite effect. Matthew Jackson BSc (Hons) MCSFS MBCS MEWI Director, Senior Forensic Consultant and Expert Witness at Athena Forensics. 0845 882 7386 e-mail: m.jackson@athenaforensics. co.uk In October 2017 the Forensic Science Regulator (FSR) it became a mandatory requirement for all digital evidence produced by the Prosecution to comply with the ISO 17025 standard. The requirement for those producing such evidence to a standard originally introduced in 1999 has caused and continues to cause significant issues and limitations.
they could not be replaced, the number of staff conducting examinations has simply reduced. Obviously smaller organisations simply cannot afford to devote such amounts of time and resources to attaining the standards set by the FSR even if they employ experienced experts and practitioners. This increased level of ‘red tape’ is being introduced within an environment that involves a continually changing and fluid science and which generates an increase in workload for those units of approximately 20% year on year, whilst annual budgets to Police Forces are being consistently reduced. The difficulty when ISO 17025 is used to accredit digital forensics is that, unlike fingerprint or DNA forensics, computers, mobile phones and the programs and files present upon them are continually changing. Whilst ‘wet’ forensics, such as DNA and fingerprint, is normally based upon a finite substance or print that cannot be copied, once a forensic copy of a device has been taken it can be verified as being accurate and complete and becomes the best evidence that can be copied as many times as necessary and whilst any alteration is difficult it can be easily identified.
When I speak to any of the number of Police Forces that I deal with up and down the country, the main topic of conversation is the work involved in moving towards, obtaining and maintaining the ISO 17025 standard.
Digital forensics has always involved the continual development of new techniques and procedures in order to keep up with the changes and development of the subject matter, every year a new raft of software is released along with continuous development of the devices upon which to use it, whereas fingerprints, though techniques may change over time, the subject does not.
Hi-Tech Crime Unit’s and businesses have been required to employ additional members of staff to replace experienced examiners needed to move from their normal roles to solely focussing on the ISO standard or, where
To expect completely different sciences to fall under the same ISO standard, particularly when one of those sciences (digital forensics) was developed after the introduction of that standard, simply because another more relevant
the barrister Michaelmas Term 2018
27
standard is not available, will not fulfil the intended purpose of raising standards and may actually have adverse effects on the identification and interpretation of evidence. The main issue that arises from the introduction of the standard specifically for digital forensics is the amount of work and the level of resources involved in firstly attaining but then continually involved in the validation of processes and techniques under ISO 17025. The identification of a suitable technique to retrieve and interpret evidence is based upon a vast number of variants not least the device containing it, the type of data involved and the location of it. The examination of Internet history on a computer hard drive, for example, is completely different to the process involved in examining a mobile phone for WhatsApp chat messages. Even the examination of two different mobile phones for the same data can involve completely different processes in order to retrieve the evidence from them. Some computers are now cloud based, meaning that no data is stored on a hard drive within them, instead the user data is retained online. Therefore, an examination of that of a normal computer requires different techniques and procedures in order to retrieve the evidence than a normal desktop computer. Under ISO 17025 it is not possible to complete the examination of any devices or data without each process first being validated. When a new technology, application or file system is encountered by a practitioner or unit, which it often does particularly when software updates and changes in user activity are accounted for, under ISO 17025, an experienced practitioner is required to carry out various validation techniques and then produce a validation plan that is then reviewed and assessed by a further experienced practitioner. Only then can the new process be used. This inflexible approach is difficult and time consuming to undertake, even an update to forensic software, most are updated monthly to keep pace with changes in technology, or the change of a component in a forensic computer, requires a full validation check. Given that a verified forensic copy of the data contained on the device should already have been taken and cannot be edited, validation of any extraction techniques can normally be made by comparing the data taken with the data contained on the forensic copy. Where data cannot be interpreted correctly either as it is a new process or as it is not recognised by standard forensic software, the process becomes one of resource. Does the unit now follow the validation process when it encounters any new problem or does it avoid it altogether and ignore that source of information. One example of this is, due to cost and time constraints, evidence from mobile phones and computers is now often being recorded by the officer in the case rather than the digital forensic unit, to avoid it being sent to the overworked digital forensic units with lengthy backlogs. Just this week I dealt with a case where the Prosecution evidence in the case has been produced by the officer in the case rather than the digital forensic unit. They did not want to seize the phone from the complainant as that would leave them without their phone for months, instead they decided to photograph key messages on that phone that the complainant showed them on the handset. A year later, the Defendant now having been charged, claims that other messages on that mobile phone not recorded by the Police officer were relevant to his case and would assist his defence. Neither the phone nor the other messages contained on the device are available to the defence as they were not
28 the barrister Michaelmas Term 2018
recorded by the Officer and a forensic copy or extraction of the content of the phone was not taken and it is no longer being used by the Complainant who, presumably along with the Defendant, has replaced it with a newer version within the last 12 months. Therefore, the Defendant does not have the ability to provide the evidence that he suggests was available to the Police at the time of their investigation, as it is no longer available. One highly publicised failure within the legal system in December 2017 occurred at Croydon Crown Court and involved the disclosure of mobile phone text messages. Messages that assisted the Defence case were not disclosed by the Prosecution until after the Trial had commenced and led to acquittal. However, this issue was not as a result of the method of examination of the device, it was the failure for the Police to disclose the data from the phone that caused the case to collapse after the Trial had begun. The introduction of the ISO 17025 standard to digital forensics will not assist in the two cases above as the evidence, consisting of mobile phone messages, had either not been obtained by the Police or had been obtained but not disclosed. Both meant that the defence did not have the ability to review and use text based messages from a complainant that could be relevant to their case but not to that of the Prosecution. Perhaps a new standard should be developed to better reflect the requirements involved in examining and investigating digital forensic evidence. Perhaps, that standard could help to ensure that the forensic copies of an Exhibit are produced accurately and with integrity, as it is those forensic copies that form the basis of investigations and cases. Any challenge of the interpretation of that data from that point can be reviewed and assessed by an independent practitioner as long as a verified and accurate forensic copy of the Exhibit was initially acquired. Whilst ISO 17025 may indicate the processes followed by a laboratory are in accordance with that standard, it does not mean the interpretation of the evidence by the examiner was correct which is, when full disclosure has taken place, almost always where the main disagreement between experts lies in disputed cases. Focus may also be better spent on increasing the knowledge, experience and technical ability of the examiners and practitioners, which has already improved greatly over the last 15 years. This would make those professionals involved in the examination of digital evidence more responsible for verifying and validating their work and the evidence produced from it which would ensure more thorough examinations of digital devices as well as more accurate interpretation of the data which is almost always a subjective process. Focussing on the individuals would also provide better trained and informed expert witnesses at court who would be better placed to identify and develop more suitable examination techniques whilst still maintaining the high standard that those in the legal system should expect. The adherence to certain forensic standards is not new and the improvement of standards within the forensic arena, particularly in relation to the legal system, should certainly be encouraged. However, when that ‘improvement’ consists of the introduction of a dated ‘best fit’ ISO standard to a new and continually developing science, causing increased work levels and backlogs, it will not improve the quality of work produced by the Prosecution, in fact it may well have the opposite effect.
Matthew Jackson BSc (Hons) MCSFS MBCS MEWI Director, Senior Forensic Consultant and Expert Witness at Athena Forensics. 0845 882 7386 e-mail: m.jackson@athenaforensics.co.uk
A
nnounced by the Government on 2 January 2018, Garden villages are new settlements of between 1,500 and 10,000 homes. The Government has identified 14 new garden villages across England . If these proposed schemes come to fruition they have the potential to deliver more than 48,000 homes. The Garden Villages and in addition to the Garden Towns programme aiming to deliver almost 200,000 new homes across 17 sites.
Can Garden Villages solve our housing crisis? By Philip Robson, planning barrister at Kings Chambers
As a sign of the Government’s commitment to the scheme, a £6 million fund has been established that is aimed at unlocking “the full capacity of sites, providing funding for additional resources and expertise to accelerate development and avoid delays”. However, the idea behind New Towns is not new, the legislative framework is found in the New Towns Act 1946. As the advocates at Policy Exchange point out, at the time of the 1946 act a deal was struck “between existing home owners and those needing to be housed: “Greenbelt protection for the green fields around existing communities in return for new towns.””. However, there have been no new towns since the 1970s. In response to the housing crisis, the Garden Villages and Towns policies are a key part of the much-stated objective of this Government to deliver 300,000 per year by 2020. A 2015 document produced by Policy Exchange forms a substantial part of the foundation upon which the policies are built. It is argued that Garden Villages will address many of the familiar complaints with the existing planning system that has partly led to housing crises, local opposition, lack of land and land value capture, local politics and short termism, fewer small builders and slow build out. The incremental approach to building houses of expanding existing settlements means landowners can see the development coming like a wave, when it hits their site it is flooded with cash through the land value uplift. It is argued that by enabling local authorities to create new Garden Villages, then the land value uplift of development being proposed on a site, will be captured. As Lord Taylor, one of the architects of the policy, set out in the recent Kings Chambers Planning Podcast, the backstop would be the use of compulsory purchase powers. It is hoped that land owners would be willing to sell at more competitive prices because the land on which the Garden Villages would be built is not the usual edge of settlement land. The wave is a long way off and therefore the price of the land goes down. The savings in land can be reinvested in infrastructure. It is also argued that by preserving the land immediately around existing settlements and moving new development to the Garden Villages, local support for schemes will increase.
It may be wishful thinking to assume that the levels of local support will increase for Garden Villages developments. With most developments there are elements of support and opposition. The issue may be that the voices of support are not heard as a result of the times of inquiry sessions during the working day, the complexities of the planning process and the labyrinthine local policies. Whilst this is a system wide problem, it is something that needs to be considered if there is to be a genuine equality of access to participation, but it is unlikely to be something that Garden Villages will address. A larger risk to the Garden Village scheme is likely to be synchronising different land-owners and different developers to bring forward a coherent scheme in a coordinated fashion. It is highly unlikely that a single housebuilder will construct the entirety of a Garden Village or that a single architectural style will be employed throughout a scheme. However, in order to attract people to Garden Villages, they will need to be appealing “places” – using the term employed by planners. This requires a consistent design style for the scheme that strikes the balance between making a place attractive, and not being overly restrictive for the developers to find the scheme unviable. Perhaps the largest area of concern for the success of the Garden Villages policy will be delivering the necessary infrastructure. With new towns, a significant percentage of the infrastructure will need to be required
from scratch. This will potentially include primary and secondary schools, roads, bus stops, public open space, doctors, retail units, places of work, the list goes on. It will need significant investment to deliver public services, a considerable amount will be funded through agreements between developers and the local authority. However, the long term of the services, the schools, teachers and doctors for example, will be supported by the state. Equally, it will need to entice the private sector to provide jobs and shops. With populations as low as 1500, this may prove problematic. As recognised by the recently published revised National Planning Policy Framework it may be impossible to assess exactly what infrastructure is needed for a Garden Village at the application stage of the scheme, therefore it must be kept under review. Providing certainty for funding over the lengthy construction of Garden Villages will be essential for developers, councils and residents of these schemes alike. Despite these risks, it is plain that the Government will continue to push the policy forward – it is given prominent role in the revised national policy published on 24 July this year. Given the state of the crisis, all workable solutions should be given a chance. Those working on Garden Villages need to be mindful of the risks.
Article written by Philip Robson, planning barrister at Kings Chambers: https://www.kingschambers.com/ philip-robson
the barrister Michaelmas Term 2018
29
Sir Owen Glenn KNZM ONZM and Kea Investments Limited v Eric Watson, Novatrust Limited and others [2018] EWHC 2016 (Ch) Analysis by Elizabeth Jones QC, Justin Higgo, Gareth Tilley, Paul Adams and Oliver Jones of Serle Court who were instructed by Farrer & Co to represent Sir Owen and Kea
O
n 31 July 2018, Mr Justice Nugee handed down judgment in the longrunning Spartan litigation. The 187-page judgment brings an end to years of litigation between prominent New Zealand businessman and philanthropist Sir Owen Glenn and another prominent New Zealander, Eric Watson, which culminated in a three-month trial between May and July 2017. The case related primarily to a joint venture between Sir Owen and Mr Watson, called Project Spartan. Sir Owen put forward a company called Kea Investments Ltd to invest in this venture, while Mr Watson put forward a trust the trustee of which was Novatrust Limited. Kea invested £129m into Project Spartan. The joint venture was formed in 2012, at a time when Sir Owen was embroiled in a dispute with the trustee
and protector of two trusts he had settled. One of the trusts owned Kea, and during the course of 2012 the protector, David Miller, and the owner of the corporate trustee, Peter Dickson, exerted control over the trusts and Kea, excluding Sir Owen from involvement. During the same period, Sir Owen saw Mr Watson as a good friend. There was therefore an unusual situation where Mr Watson was on friendly terms with Sir Owen, his proposed joint venture partner, and with Messrs Miller and Dickson who were handling the negotiation on Sir Owen’s side, but within Sir Owen’s ‘camp’ the relationship between Sir Owen and Messrs Miller and Dickson had fallen apart. In the end Kea completed its investments into Project Spartan in 2012 without Sir Owen having any proper understanding of what was going on. In February 2013, Sir Owen’s daughter obtained an injunction in Nevis which
30 the barrister Michaelmas Term 2018
among other things suspended the powers of Messrs Miller and Dickson over the two trusts and installed a new temporary trustee provided by the fiduciary services arm of international law firm Harneys. This resulted, over time, in Sir Owen discovering some of what had happened with Project Spartan, including the terms on which Kea had invested its £129m. The joint venture became deadlocked and a dispute arose between Sir Owen, Kea and a corporate director provided by Harneys on the one hand and Mr Watson and Novatrust on the other. Litigation started in 2014, with Kea applying to wind up the principal joint venture vehicle, Spartan Capital Ltd (in the BVI), and Novatrust launching a derivative claim (in England), leading to long running jurisdiction challenges in both jurisdictions. Subsequently, Sir Owen and his legal team uncovered claims for deceit and breach of fiduciary duty, and those were brought
in April 2015 by Sir Owen and Kea. A further claim, based on the authorities on bribery and secret commissions, was discovered after disclosure and added by way of amendment. The three sets of proceedings (deceit, breach of fiduciary duty and bribery/ secret commissions; derivative claim; winding up) were listed to be tried together. A mid-trial settlement with Novatrust disposed of the derivative claim and the winding up petition. The remaining set of proceedings continued as against Mr Watson, resulting in the judgment handed down on 31 July 2018. The factual issues in the proceedings were complex and the dispute was document heavy. Sir Owen and Kea’s Particulars of Claim ran to 157 pages; Mr Watson’s Defence ran to 206 pages. The chronological trial bundle alone ran to 137 volumes. The trial was conducted with the aid of the Opus 2 Magnum software. Witnesses and junior counsel did not use hard copy bundles, although leading counsel and the judge used a mixture of paper and electronic bundles.
backdated, Nugee J did hold that Mr Dickson had executed the agreements without authority and for an improper purpose, namely in order to defeat the injunction, and that Mr Watson knew that those agreements had been executed in breach of the injunction. Also the subject of the Part 7 proceedings brought by Sir Owen and Kea was another joint venture known as Project Edsel. The claims advanced by Sir Owen and Kea in relation to this venture related to a side profit made by Watson through a stake in the “management carry” on the underlying project. Kea did not seek to set aside the Project Edsel agreements but claimed Mr Watson’s side profit. This claim did not succeed. Although Nugee J agreed that Mr Watson had not given full disclosure of his side profit, he considered that on Project Edsel, unlike on Project Spartan, Mr Watson owed no relevant fiduciary duty to Kea.
For the most part, Nugee J found it unnecessary to rule on further claims that Mr Dickson in his capacity as a director of Kea acted for an improper purpose and in breach of his director’s duties by transferring money out of Kea in order to put it beyond the reach of any steps Sir Owen or his family might take to recover control of the trusts. However, in relation to two particular loan agreements which were signed after the Nevis injunction and
•
The judgment is notable for its discussion of various important areas of law, including the following: •
Nugee J held that Kea was entitled to set aside the Project Spartan agreements on three different grounds: (i) that they had been induced by fraudulent misrepresentations made on behalf of Mr Watson to Messrs Miller and Dickson; (ii) that offers made by Mr Watson to obtain a training contract for Mr Dickson’s daughter were sufficient to give rise to a realistic possibility of a conflict of interest in Mr Dickson and therefore engaged the rules against bribes and secret commissions; and (iii) that Mr Watson owed fiduciary duties to Kea and acted in breach of those duties by arranging to make profits from Project Spartan which he did not disclose.
•
•
•
Deceit, it being particularly notable that the deceit claims succeeded despite the individuals alleged to have been deceived either giving no evidence (Mr Dickson) or giving evidence that they were not deceived (Mr Miller), a situation which Nugee J acknowledged was very unusual. The circumstances in which one joint venturer owes fiduciary duties to another: Nugee J reached different conclusions in respect of Project Spartan and Project Edsel, allowing for an interesting comparison. The differing conclusions which Nugee J reached are also a reminder that the circumstances in which a fiduciary duty will be found to have arisen are highly fact-sensitive. The scope for fiduciary duties to be owed where an individual has a personal relationship with the alleged fiduciary but ultimately puts forward a separate person or entity to enter into the relevant transaction. Nugee J held that the fact that Sir Owen had no beneficial interest in the money invested by Kea would not by itself have prevented Mr Watson from
• •
•
owing a fiduciary duty to Sir Owen or Kea or both, provided that their relationship was such that Mr Watson had agreed to act loyally in Sir Owen’s or Kea’s interests. The limits of the law of bribery and secret commissions, in particular how significant or non-trivial an inducement must be to give rise to liability, and whether or not the recipient of the bribe must have received some material benefit for the law on bribery to be engaged. Nugee J held that it was to take too narrow a view to suggest that, because there was no financial value to Mr Dickson in the offer of a training contract to his daughter, the law on bribery was not engaged. The real question, Nugee J held, is whether the agent has been offered something that gives rise to a realistic possibility of a conflict of interest. The duty of company directors to act for proper purposes, particularly in the context of litigation and court orders – especially freezing orders affecting the company. Quistclose trusts in the context of investing pursuant to a term sheet. Tracing, particularly in circumstances where a small misappropriated sum is used to acquire an asset which turns out to be very valuable. The rights of a claimant who settles with one defendant to allocate sums recovered under the settlement to particular claims, potentially affecting the extent of the remaining liability of other defendants.
Consequential orders are to be dealt with in September. These will include directions for the further pursuit of claims against Munil Development Inc, which received over £12m of the money Kea invested into Project Spartan. Also still to be decided is the rate by reference to which Kea’s equitable compensation for breach of fiduciary duty should be calculated.
Elizabeth Jones QC, Justin Higgo, Gareth Tilley, Paul Adams and Oliver Jones of Serle Court, instructed by Farrer & Co, represent Sir Owen and Kea
the barrister Michaelmas Term 2018
31
aware, Mrs Owen’s petition for divorce was challenged by her husband and the courts subsequently refused to grant her a divorce as the examples of unreasonable behaviour she relied upon were judged to be insufficient to warrant a finding that the marriage had irretrievably broken down. Those who have been long campaigning for no-fault divorce say this case shows just how broken the system is, and couples may feel the need to invent spurious, and extreme examples of unreasonable behaviour just to ensure a divorce is granted. Certainly not a cooperative or conciliatory approach – creating these examples of unreasonable behaviour can mean the separation becomes unacceptably bitter, and causes resentment to grow, and which often colours their approach to the resolution of financial issues. This process should be cooperative and conciliatory – especially if children are involved. The introduction of the online divorce courts is a positive sign that the legal system is moving in the right direction and is providing more support to the changing ways of family life.
The modern family? High Court predicts that divorce could be dealt with online, is this achievable? By Stephen Lyon, Barrister at 4PB
A
BBA once shot to success with a record that tugged on many people’s heart strings as they could relate to the sentiment behind ‘Knowing Me, Knowing You’ - ‘breaking up is never easy’. But now key legal figures are taking steps to make this process an awful lot easier for couples across England and Wales, with the introduction of an online divorce process. Sir James Munby, President of the High Court’s Family Division, has recently predicted that within four years most divorce cases will leave the courtroom and be dealt with online instead. These comments come as family dynamics and structures continue to evolve and this development begs the question: could this be the hassle-free separation that people are after? Especially as couples are increasingly living internationally, with assets dotted around the globe. Munby’s observations follow the success of the online divorce pilot
scheme which was rolled out across England and Wales earlier this year (2018). The scheme is part of the government’s £1bn modernisation plan to bring the legal system into the 21st century. The online divorce programme allows couples to apply for an uncontested divorce digitally, via online forms and this includes making payment and uploading supporting evidence. The pilot scheme, which was dubbed by Munby as a ‘triumphant success’, saw 1,000 petitions issued in the trial period and a resounding 91% of people said they were satisfied with the new service. For many couples the divorce process is already stressful and can be made more antagonistic and confrontational, not to mention expensive, by the involvement of legal teams and court rooms. The pressure has certainly been growing to revolutionise our divorce system, with the recent case of Owens v Owens, currently before the Supreme Court, being held up by campaigners as a good example of the need for reform. As many will be
32 the barrister Michaelmas Term 2018
One step that will significantly reduce stress is the move from a paper-based process to an online system, which will cut waste and speed up the service in a bid to provide a better fit for busy family life. It has been reported that the MoJ claims that court staff currently spend 13,000 hours dealing with complex paper divorce forms, but this online service has already contributed to a 95% drop in the number of applications being returned because of mistakes, when compared with paper forms. As Justice Minister Lucy Frazer has said, the new system is to “make sure we are best supporting people going through an often difficult and painful time” “More people will have the option of moving from paper-based processes to online systems which will cut waste, speed up services which can be safely expedited, and otherwise better fit with modern day life.’.. One example of how the process has been simplified for people is the way the Government has cut the legal jargon and made the language more accessible for ordinary people throughout the online process. However, we should not count our chickens just yet, as the online process is still in its early stages and of course, may not be suitable for all couples. Some people will still prefer handing over the process and all the related paperwork – whether online or not - to a lawyer, particularly where one party may feel under pressure from their spouse. Another issue which many have to consider is that their separation will not be straightforward, with complex webs of assets across countries and children to think about. This is a common issue that frequently arises for high-net worth individuals going through the divorce process, as more
often, the couple will be based across a number of different jurisdictions and have to make decisions on where children should live/be schooled and how to divide the assets. For example, it is not uncommon for a French family to be based in London and have assets say, in Sweden, Spain and the US. Although at its heart, the divorce process is quite simple, it can become complicated very quickly. Lots of potential issues and hurdles can be raised throughout the separation which the online process does not allow for, or enable swift resolution. For many their divorce is not simple, or uncontested, and they will need personal advice from legal experts, which would be outside the online system. It is fair to argue that a straightforward divorce would work well through this new online system, but how many cases in this day and age are that straightforward? And although the figures show that overall, people have found the forms simple to fill in, there is still ample room for mistakes, which could end up making the supposedly simple process more complex and stressful. Having a legal expert guide you through the divorce process can mean the documents and legal details are one
less thing for a busy person to worry about. The digitalisation of courts is not unique to the Family Courts and has been tried and tested across our judiciary system, to varying degrees of success. One example is the HM Courts & Tribunals Service, which is now operating a virtual court. Claimants in the tax court can now present evidence or interact with lawyers or judges from their homes via Skype or phone. Is this creating a radical, cost-saving future? Or the death of the court room? Whilst there are strong arguments for both sides, there is no denying that 250 courts have already closed since 2010, and 6,500 court and backroom jobs look set to disappear by 2022. Balance is key to the future and the survival of the courts. The legal process needs to adapt to fit better with modern life and embrace technology more generally, but it is also true that the demand for couples to have their divorce case heard remains consistent – signifying that the London court system remains an attractive place for litigation on the global stage. How successful are the government’s technological initiatives? Their trackrecord is not always successful. For example, E-conveyancing is back on
the agenda following its unsuccessful trial a decade ago, which suggests this online system might not change the status quo too much, and that teething issues may arise down the line. Positively though, there have been big developments here, and maybe as family law modernises with key cases and digitalisation, it will meet the needs of the modern family. As with everything in life, families are evolving and these days there’s no such thing as a traditional 2point4 children structure, and it is no secret that the law is struggling to keep up. High-profile cases like Owens vs Owens have emphasised how the law does not meet the needs of 21st century couples. Answers to these issues are not going to be suggested overnight, and we should certainly not dismiss digitalisation of the courts–for some going through a fairly simple, uncontested divorce, this system will work and will prove to be a much simpler and cheaper option. However, there is no doubt that legal teams will always be needed as human nature is not simple, and neither are their divorces. The good news is the law is taking steps in the right direction to keep-up with our evolving family lives.
Stephen Lyon, Barrister at 4PB
The role of Litigation PR outside and inside the courtroom By Tim Maltin, CEO at Maltin PR The asymmetric approach King Pyrrhus of Epirus famously said: “If we are victorious in one more battle with the Romans, we shall be utterly ruined.” He was talking in 279 BC about the large number of soldiers he had lost in the battle of Asculum, but today he could just as easily have been referring to the high cost of litigation, or the pitfalls of winning the legal battle inside the courtroom at the expense of losing the communications war outside Your client’s reputation may be more valuable than the matter you are litigating over, or at least the other side’s reputation may be. So winning in the court of public opinion is just as important, and sometimes even more so, than winning in the courtroom. But the courtroom and the outside world are connected for two important reasons. Firstly, because, as Lord Chief Justice Hewart said in 1924, in his appeal judgment in R v Sussex Justices, Ex parte McCarthy, it “is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”; and secondly because judges and jurors, no matter how impartial, urbane and sophisticated they may be, do not in reality sit in a vacuum, but ride the Clapham omnibus of popular culture to a greater or lesser extent, whether they like it or not. In other words, there are two conversations going on: one inside the courtroom to persuade the judge, and the other outside the courtroom to persuade the public. But the reality is that these two conversations are linked. Not only to the extent that they make the same arguments in different ways, but also because one cannot help but inform the other. This means that you need to develop your PR strategy alongside your legal strategy, from the outset. In the most extreme circumstances, your PR strategy might dictate that you should not litigate, no matter how good your case, because
of the balance between the possible legal gain and the certain reputational risks involved for your client. At the other end of the scale, your PR strategy might dictate that you bring a particular case, in a particular jurisdiction, which you might not otherwise have brought, because of how that case will play in your overall strategy, and how that will set up both the legal and public narrative for other current and future cases. Or there will be times when you consider a legal case to be too weak, complex, costly, slow or unrewarding for your client, but where the reputational concerns of the other side mean that a carefully orchestrated settlement PR campaign, threatening to litigate, can bring the other side to make a settlement offer to your client. And when it comes to Group Actions, it is often not possible to bring or manage the legal claim at all without a strong litigation PR campaign recruiting and keeping informed the corporates or consumers involved. This asymmetric approach to litigation and PR is particularly key in complex, cross-border international commercial litigation, but its deployment in any case can often mean the difference between success and failure for your client, both inside and outside the courtroom. When to comment As Sun Tzu said in ‘The Art of War’: “Attack is the secret of defence; defence is the planning of an attack.” The decision whether to be reactive or proactive in your litigation PR strategy is to a great extent a false one in practice. For example, you may decide to keep quiet unless the other side goes on the PR offensive. But all good journalists seek balance in their stories as far as possible, and in particular like to get the view of the other side of a case, as well as encouraging rebuttal comments from those who will be criticised, so you will get an early warning of the impending attack when you or your client are asked to
the barrister Michaelmas Term 2018
33
use word pictures where possible, be statesmanlike, consider alliteration or the use of aphorisms, be interesting, and say something different. As well as putting a strong, clear argument forward, consider introducing other voices where these are aligned with your client’s. Multiple sources will help to validate your messages. Also create broad appeal by talking about principles of law as far as possible, rather than the minutiae of the particulars of your case. In considering what you say, consider the legacy digital footprint you will be leaving on search engines. Hard copy is tomorrow’s fish and chip paper, but online lives forever, and increasingly everything starts with a Google search. comment. Then you can deploy the full force of your carefully prepared reactive PR strategy, preemptively turning the fire of the attack back on your opponent, either killing their article or shaping it to your own messaging. Sometimes no comment at all really is the best comment, but usually only when you are either losing hard or winning big. But these can also be the best times to get on the front foot, by getting to the real or metaphorical microphone first and shaping the news agenda to fit your narrative. Contrary to popular belief, there is wide latitude to comment on active public court cases. The strict liability rule in Section 1 of the Contempt of Court Act 1981 “applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”, and “only if the proceedings in question are active at the time of the publication”. And “a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith”. Furthermore, “a publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.” As with so many things in today’s world, speed is key. A pithy comment on a judgment will often go far and wide if it is given within minutes of the judgment being handed down. An hour’s delay and the other side will have beaten you to it, or the story will have been written, or in high-profile cases social media may have already gone off-message. Get out ahead and stay ahead in the mainstream media, and monitor it and social media closely, correcting misinformation where the readership and influence of any publication requires it. The essential ability to act quickly requires briefing your litigation PR agency on the details of the litigation well in advance of the hearing, and having them brief the press as far as possible in advance. Briefing packs setting out the history and background to the case can be created and distributed, provided that these stick to publicly available information, such as background
information about the parties and a summary of judgments from analogous cases or previous litigation between the parties. It is also useful to agree key messages and prepare on the record comments in advance for win, lose and draw outcomes. Your PR should also invite key journalists to the hearing and sit discreetly in the back row of the courtroom with journalists, ready to brief them further on background, as well as on the key points which reinforce your messages from their own contemporaneous notes of what was said in the proceedings. You should also ensure that transcriptions of the hearing are provided to your key journalists as soon as possible on the day of the hearing, together with the key highlights and quotes for your case. To have the best possible control over this situation, your PR strategy can and often should inform the tone and order of your pleadings, and even your choice of advocate. Beyond this, PR can also assist with witness selection and preparation, as well as the strategic development of private investigations and thought-leadership campaigns, which can be deployed and promoted to shape public opinion. What to say Mark Twain said you should “Never let the truth get in the way of a good story.” That is true, but you should also never lie, especially to a journalist. So, tell the truth and weave it into a good narrative. As well as being accurate and informative, the media also needs to entertain. Even the most complex international commercial disputes need to be simplified to the extreme in order for a clear message to be produced to achieve cut-through. Keep it simple, and make sure your story arc is topical and that your messages will resonate with both the public and your client’s stakeholders. In the event that a hearing goes badly, litigation PR can strategically shift the focus away from what went wrong on the day, towards the positives and the prospect of an appeal. Even if the appeal never materialises, its prospect on the day creates a positive focus for your client. As Shakespeare said in Act II of Hamlet: “Since brevity is the soul of wit and tediousness the limbs and outward flourishes, I will be brief…”. You should be brief and to the point,
34 the barrister Michaelmas Term 2018
Sometimes you will need to get inaccurate articles or broadcast items amended or removed. In this your litigation PR team should keep friendly with journalists, but keep defamation lawyers in the background and on hand. IPSO rulings take a long time and defamation suits take even longer and are hard to win significant damages from, meanwhile the offending publication often remains live. So your quickest and only really practical and effective remedy is immediate and from the publication itself, by persuading the journalist or their editor that there is factual error or genuine imbalance in the article. Journalists will normally be prepared to rapidly correct errors of fact in online articles, and add antidote quotes into published articles where appropriate for balance, fairness and accuracy, provided these are drafted and requested in the right way and do not go further than is strictly necessary. Integration is key With the high stakes of litigation, it is vital that a bond of trust is developed between the legal team and the litigation PR team. Often pure legal advice is at odds with pure PR advice, so in order to optimise the outcome for clients, litigators increasingly need a good feel for the balance between the priorities of the law and reputation management, just as specialist litigation PR experts must understand the legal reporting restrictions, the fine details of the case, and the client’s wider objectives. The client, legal and PR teams need to work very closely with each other, both at the planning and execution stages. Thorough planning and preparation is key, including preparing quote books in advance, as your plan will sometimes need to be executed in the heat of battle, where speed and precision are vital in order to take and keep control of the narrative. Only by PR and legal working hand in hand will you win both the legal battle and the reputation war. And the reality is that winning the reputation war will help you win the legal battle.
Tim Maltin is CEO of Maltin PR and has extensive experience in legal and litigation PR, reputation management and public affairs. Maltin PR is a London-based communications agency specialising in corporate, legal and litigation PR and reputation management.
the barrister
35
EXPERT WITNESS SERVICES
the barrister Michaelmas Term 2018
EXPERT WITNESS SERVICES the barrister
36 the barrister Michaelmas Term 2018
the barrister
37
EXPERT WITNESS SERVICES
the barrister Michaelmas Term 2018
EXPERT WITNESS SERVICES the barrister
38 the barrister Michaelmas Term 2018
the barrister Michaelmas Term 2018
39
40 the barrister Michaelmas Term 2018