Lord Bach, legal aid minister, must look forward to facing audiences of legal aid lawyers as much as Daniel looked forward to his engagement in the lions’ den. The minister has received a rough ride at events lately, but at the Legal Action Group’s conference at Freshfields last week, he actually received a compliment – though he wasn’t present to hear it. As is usual with ministers, Bach had to rush off immediately after his speech, but not before giving the next speaker on the programme, veteran human rights solicitor Sir Geoffrey Bindman, ‘permission to insult me in my absence’. But far from doing that, Bindman paid tribute to the minister’s efforts. ‘I have confidence he will do and has done his very best to improve legal aid.’ Bindman went on: ‘In that respect, I think he’s quite different from one of his predecessors who told me: “There are no votes in legal aid so the government can cut as much as it likes without having to worry about it.”’ Wild horses would not drag from him the former minister’s name, Bindman said.
Ahead of the G20 meeting this week in Pittsburgh, the Legal Sector Alliance has released a communique addressed to the leaders of the G20, calling for practical regulatory requirements – not hot air. The Legal Sector Alliance is a group of law firms and organisations working together on climate issues under a set of core principles. Each member commits to measure and reduce its carbon footprint, but that is the easy part. The principles also encourage us to engage in the development of climate change law and policy, and to advise clients on opportunities and obligations arising from and under climate law. The 128 law firm members together represent over a quarter of the lawyers in private practice in England and Wales, and we hope that more will join us. Of course, we are not scientists. But anyone who follows current affairs knows that there is a broad consensus among scientists and policy makers around the world that climate change is man-made, that it poses major economic, social and environmental risks, and that deep emissions cuts need to be made. Even so, we will have to adapt to temperature change – at least 2C and possibly 4C by the end of the century. Disagreements, at least between governments, relate primarily to what solutions are needed, what short-term cuts should be imposed and who should pay. Negotiations will culminate in an intergovernmental meeting this December in Copenhagen, when an agreement is expected that will replace much of the Kyoto Protocol. Delivering these changes can only be done through law, and because of the encompassing nature of climate change, we are talking about a lot of new law. It is in this context that the executive members of the alliance have released a communique addressed to the leaders of the G20. We are calling for high-level statements to be translated into practical regulatory requirements – without regulatory force any policy is just hot air. We are all now fixed with knowledge of the science, but we have insufficient regulation to drive reductions. Many of us have clients who are frustrated with how climate and energy policy has evolved thus far. Without a clear understanding of the structure with which they will have to comply, companies cannot invest at scale. Some working in low-carbon energy markets are struggling with regulatory regimes that are under almost annual review. Building on this experience, we have suggested some core principles for future climate rules:Constructing a coherent set of new requirements in relation to such a complex problem is undoubtedly very challenging. We recognise this and our intention is not to criticise from the sidelines. We have expressed a willingness to contribute pro bono to the formulation of effective climate regulation. We hope this offer will be taken up and that other lawyers will join us in the initiative, both in the UK and beyond. Regulation and its enforcement should be clear, proportionate and form part of a coherent, integrated regulatory and enforcement framework; Existing legal and regulatory regimes should be reviewed and reformed to correct any failure to price or minimise carbon emissions, and to remove perverse incentives that, for example, may promote disproportionate investment in one technology at the expense of others; Broadly consistent national and international rules are required to clarify rights and responsibilities associated with emissions reductions or sequestration; Global product, industry and reporting standards are desirable; Incentives for investment in and deployment of emerging technologies are needed to provide certainty to those businesses that take significant technology or commercial risk; and Time-limited involvement of business in the development or piloting of climate regulation should be used to road-test ideas and build in a ‘snagging’ process. Vanessa Havard-Williams is chair of the Legal Sector Alliance policy committee. www.legalsectoralliance.com
Gazette reporter Jonathan Rayner has won the print category of this year’s Bar Council awards for outstanding legal reporting. He received the accolade for a piece published on 5 March that addressed his son’s mental illness and journey through the health and justice systems. Bar Council chairman Desmond Browne QC said: ‘The judges felt that Jonathan Rayner’s piece on the difficulties facing those suffering from mental illness gave an insight into a difficult area of the justice system, from a very personal perspective.’ Rayner (pictured) received the award from Danny Shaw, home affairs correspondent at BBC Radio 4. The broadcast category was won by Gazette columnist Joshua Rozenberg for Radio 4 programme Top Dogs, which addressed the genesis and role of the Supreme Court.
Lawyers were out in force last weekend for the Pride 2010 parade in central London celebrating ‘equality under the law’. Some 120 solicitors, barristers and legal executives braved the heat to join the lawyers’ contingent, which saw the Law Society, the Bar Council, the Junior Lawyers Division, the Lesbian and Gay Lawyers Association and other groups join forces for the first time to march together. Most wore T-shirts but some sweltered in full barrister getup and one demonstrator, clearly a Lady Gaga fan, wore something else entirely, but still managed to make a few calls and keep the billing machine ticking. The JLD’s Kevin Poulter assures Obiter that there was a fantastic reaction from the sizeable crowd, with lawyers even using a banner for an impromptu limbo dancing competition – impressively without displacing any wigs.
The appellants appealed against the imposition of antisocial behaviour orders (ASBOs) following their pleas of guilty to supplying class A drugs including heroin and cocaine. The appellants had been tried under separate indictments for offending which was uncovered as part of the same police operation in the St Paul’s area of Bristol: Operation Polar. Each appellant had been caught selling drugs to undercover police officers on several occasions. Open drug dealing had a negative impact on the St Paul’s area which had resulted in a general decline of the area. Residents suffered fear, intimidation and nuisance as a result of the drug dealing. The judge imposed sentences of imprisonment and detention and similar post-conviction ASBOs on all four appellants preventing them, inter alia, from entering the Ashley ward of Bristol. The first appellant (B) submitted that his sentence of four years’ imprisonment was manifestly excessive as insufficient account had been taken of his age, which was 18 at the date of the first offence. The appellants all appealed against their ASBOs on the basis that there was no need for an ASBO in light of the sentences passed, and it seemed to be police policy to apply for a standard ASBO for each offender caught up in Operation Polar without justifying them in the special circumstances of each appellant’s case. The appellants further argued that, if the ASBOs were upheld, the exclusion zone was too large. Held: (1) There was nothing wrong with a sentence of four years’ imprisonment in the circumstances of B’s case. R v Djahit (Turkesh)  2 Cr App R (S) 142 CA (Crim Div) established a starting point of 5-6 years for a street retailer of class A drugs, Djahit followed. Despite B’s age, he had previous convictions for possession of class A, class B and class C drugs, which indicated a lack of respect for the authority of the courts (see paragraph 17 of judgment). (2) The case of R v Dyer (Julio)  EWCA Crim 2096 was especially relevant as it was an appeal by an offender also caught up in Operation Polar against his ASBO which mirrored those imposed on the appellants. In that case it was open to the trial judge to decide that an ASBO was necessary and that the pre-conditions for the making of a post-conviction ASBO were met, Dyer followed (paragraph 21). The appellants’ challenge that the judge omitted to set out the factual basis for each appellant’s ASBO failed. The judge had vast background information before him of the circumstances of each appellant from which he could conclude that the statutory requirement of necessity for an ASBO was met in the case of each of the appellants. He considered the potential deterrent impact of the sentence. The post-conviction ASBOs were not simply directed at future drug offending, but also at their involvement in the antisocial behaviour associated with the open street dealing of drugs and their contribution to making St Paul’s a ‘no go’ area. The ASBOs were also targeted at the nuisance, fear and intimidation which were conducive and preparatory to open drug dealing. The ASBOs were justified in the case of each appellant. The appeals against the imposition of ASBOs were dismissed. However, the ASBOs were varied to reduce the exclusion area specified to the St Paul’s area (paragraphs 29, 33-34, 38). Appeals allowed in part. Criminal procedure – Antisocial behaviour orders – Sentence length – Supply of drugs R v (1) Kirk Jordan Barclay (2) Noah Ntuve (3) Francis Cowan (4) Trevor Junior Prince Campbell: CA (Crim Div) (Lord Justice Pitchford, Mr Justice Cranston, Judge Warwick McKinnon (Recorder of Croydon)): 1 February 2011 James Ward (instructed by CPS) for the Crown; David Miller (instructed by Allen Hoole) for the first and third appellants; Mark Worsley (instructed by Rodney King & Partners) for the second appellant; Ian Halliday (instructed by Elite) for the fourth appellant.
A Law Society debate will this month consider how superinjunctions can survive in an era of social media. The free discussion, entitled Privacy, Free Press and the Public Interest, will look at how anonymity orders can be enforced when information is so readily available through sites such as Twitter. The event is the second in a series of cutting-edge debates examining key law reform issues, for which the Gazette is media partner. Topics up for discussion include the principles of free speech, the role of the press and how parliament can self-regulate any apparent abuses of its privilege. Law Society chief executive Desmond Hudson will chair the debate, with participants including Schillings partner Gideon Benaim, leading privacy counsel Hugh Tomlinson QC (pictured) and Jo Glanville, editor of the Index on Censorship. The event will take place at 6pm on 20 September at the Law Society. Go to the Law Society site for more information.
Security for costs – Amount of security Ackerman v Ackerman and others: Chancery Division (Mr Justice Roth): 12 August 2011 Craig Orr QC (instructed by Enyo Law LLP) for the claimant. John Wardell QC and Emer Murphy (instructed by Berwin Leighton Paisner LLP) for the first, second and fourth defendants. The underlying proceedings concerned a claim brought by the claimant against the defendant for breach of contract. The claimant and his brother, JA, together built up a successful business of property investment and development (the Ackerman Group). Upon the death of JA in 1989, his interests passed to his widow, NA. By 2006, the relationship between the claimant and NA had severely deteriorated and there needed to be a parting of the ways. The parties agreed that a tax barrister, AT, should be engaged to give effect to a division of the Ackerman Group between them so as to achieve a demerger of their interests. A document containing the terms agreed by the parties in relation to the engagement of AT was entered into in June 2009 (the agreement). The claimant subsequently commenced proceedings in April 2011, alleging a series of breaches of the agreement as regarded the scope of what AT was permitted to do, the procedure required and also a failure by AT to act fairly, impartially and in an unbiased manner. The defendant brought an application for security for costs on the basis that the condition in CPR 25.13(2)(g), namely that the claimant had taken steps in relation to his assets that would make it difficult to enforce an order for costs against him, had been satisfied. It was acknowledged by the claimant that the condition in CPR 25.13(2)(g) for the making of an order had been satisfied. It was submitted on the claimant’s behalf that there should be a charge by way of security over half of his wife’s interest in the matrimonial home which would amount to around £375,000 (the charge). The defendant submitted that £950,000 would be an appropriate figure for security. The principal issue that fell to be determined was whether it was just in all the circumstances to make an order for security for costs over and above the charge. The court ruled: Applying settled principles, it was just in all the circumstances to make an order for security for costs over and above the charge. On the facts, a total of £600,000 by way of security was a fair and appropriate amount in all the circumstances to do justice as between the parties. The instant case was one where the claimant’s lack of means had been contributed to by the defendants in a manner that was at the heart of the claim (see , ,  of the judgment). The claimant was ordered to provide security in the sum of £600,000, of which £375,000 might be furnished by way of the charge.
To One Great George Street in the heart of Westminster for the 90th anniversary party of Thompsons Solicitors, the unofficial legal wing of the Labour movement. The event’s timing might have dampened the mood, what with the government about to abolish referral fees in personal injury cases, and in a nice tribal twist not a single Conservative parliamentarian was invited. But chief executive Stephen Cavalier was in defiant spirits as he rallied an audience of Labour frontbenchers and MPs, policy wonks, lefty journos and assorted stalwarts of the trade union movement. The core message – that the reforms are being driven by an insurance sector which bankrolls the Tory Party – certainly went down well, judging from the raucous applause. Incidentally, Thompsons must be the only law firm in England and Wales with its own campaign banner (pictured), which celebrates the firm’s proud history of defending workers’ rights. Ample evidence indeed of its commitment to raising standards in the legal profession.
While the online renewals process for practising certificates was confusing and highly stressful for many of us, the SRA deserves credit for the way in which some of its staff handled individual complaints and concerns. With large organisations and online services it is usually impossible to find a human being who cares, but I think it is only fair to say that people at the SRA, once you have a name and an email contact, can be very helpful. So frequently, all that is required is a call from an organisation which pre-empts all the debilitating on-hold messages (and music) and the build-up of angst which this creates. It’s quite disarming to receive an unexpected call from a person checking if everything is going to plan with some guidance and a direct number if that is not the case. The SRA got that right, and perhaps the system will settle down after the initial hullabaloo… and thanks to those individuals concerned. Gordon Turner, Gordon Turner Employment Lawyers, London EC2
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