Raj Chada is a partner in the criminal department at Hodge Jones & Allen Rose-tinted spectaclesIn these areas, what is reasonable to the lord chief justice may not be reasonable to the 21-year-old in Brixton. It is for these reasons that juries are so fundamental to our system. We should remember that the judiciary is still overwhelmingly white, male and Oxbridge-educated, and that their life experiences will differ from most defendants who come before them. This is not to say that we should view jury trials with rose-tinted spectacles. Just because we have had an institution for 1,000 years, it does not mean that we should always continue to have it. It was, after all, jury trials that helped wrongly to convict the Birmingham Six and the Guildford Four, and indeed acquit OJ Simpson. There is also a degree of hypocrisy from defence lawyers, who talk about the importance of jury trials then battle to keep as much information with regard to a case from a jury for fear of ‘prejudicing’ them, or are content for the vast majority of cases to proceed in the non-jury magistrates’ court. It is not the jury system that needs addressing but the whole criminal justice system. It is without doubt the public service that commands the least support among the public, as well as being one of the most expensive institutions in Europe. In high-profile cases it still regularly convicts the wrong people, and offers no solace to victims or confidence to defendants. The attack on juries is simply an easy attack to make on a failing system. However, it is time that the system as a whole began to look at itself. It is too often run for the benefit of lawyers, politicians and the judiciary rather than the public it seeks to serve. The recent bout of soul searching with regard to jury trials has come as a result of a Court of Appeal decision in the Menzies World Cargo trial, which has allowed the first non-jury criminal trial to proceed in England and Wales. While the facts in this case appear at first instance to be exceptional, this is a remarkable judgment with potentially profound implications for the criminal justice system. The Criminal Justice Act 2003 opened the way for the Crown to apply for a non-jury trial where there was a real and present danger of jury-tampering. In the Menzies case there had been three previous trials, the last of which had collapsed over allegations of jury tampering. The appeal court subsequently ruled that the test for a non-jury trial had been passed. This raises a number of concerns. First, it appeared acceptable that part of the equation in coming to this decision was the cost of jury protection. It seems remarkable that the prosecuting authorities can now simply plead lack of resources to avoid a fundamental principle of English law. What price a right that dates from the Magna Carta? It is often easy for criminal lawyers to use the ‘slippery slope’ argument – that is, once one case has been decided, others will follow. Though I do think this scenario will be relatively rare, what happens when there is a trial of alleged international terrorists? Will the state say that this type of trial must be before a judge alone as there is a real and present danger of jury-tampering? To understand the dangers of this type of scenario, we need to go back and understand why jury trials are important. These are remarkable institutions, in that 12 lay people are given a huge amount of leeway to decide factual issues in a case and need give no reasons for their decision. I have no doubt that many judges are well equipped for adjudicating on facts and do so in numerous different tribunals. However, criminal trials where liberty is at stake have always been looked at differently from other fact-finding tribunals. Moreover, a decision in criminal trials is often not so much a straightforward fact, but concerns whether a particular course of action was reasonable (say in self-defence) or dishonest in any of its actions (in any fraud offence, for example).
James Carter (see  Gazette, 17 December, 9) appears to have a rather different understanding than I about the way in which family cases, and public law proceedings in particular, are conducted. First, he refers to them being dealt with ‘in secret’ when they are not. They are dealt with confidentially. There is a substantial and important difference. The media have had right of access to proceedings in the Family Proceedings Court for years. They rarely, if ever, exercise it. Second, it is generally not the case in family proceedings that expert witnesses ‘have to give evidence for one side or the other’. Indeed, there is abundant case law requiring such witnesses (who more often than not are jointly instructed on behalf of the court) to remember that their primary duty is to the court, not the parties. Moreover, in areas of disputed fact, it is the judge, not the expert, who decides, albeit with the assistance of experts as well as the parties, their witnesses and the advocates. Third, having practised as a children panel solicitor since 1985, I cannot recall one public law case in which ‘there is only the expert for the local authority’. Any such practice should have been well and truly rooted out by now in any event, following the Protocol for Judicial Case Managment in 2003 and the Public Law Outline in 2008. Fourth, although he makes fleeting reference to ‘guardians’, Mr Carter appears oblivious of the tandem system of representation in which children’s guardians appoint solicitors to represent each child in every care case, and which involves a rigorous and critical analysis of the local authority’s case and actions. Does he believe we are so wet behind the ears that we take everything a local authority says as gospel, and do nothing to prevent children’s wishes and feelings being ignored, when it is at the very heart of what we do to ensure that this does not happen? If so, he does us a great disservice. Moreover, I can tell him that he is wrong. If local authorities ‘fail to engage with parents, other professionals and the child’, guardians and children’s solicitors are quick to address that issue directly with the local authority and, in the event they will not listen, the matter is referred to the judge to whom the case has been allocated. The image painted by Mr Carter is one in which children are taken forever from their families by unscrupulous local authorities who pay experts to peddle their case before a weak and easily persuaded tribunal with nothing to prevent this happening apart from ‘the power of the media’. Mr Carter portrays a system I do not recognise. Stephen Mannering, Nottingham
The Solicitors Regulation Authority is to examine whether it should stop setting a minimum salary level for trainees as part of its overhaul of regulation, in a review that will begin this autumn. The regulator is also considering whether to freeze the current minimum salary level this year, with a decision expected shortly. The minimum salary for trainees is £16,650, or £18,590 in London. This normally increases in line with inflation based on the previous calendar year’s retail price index. An SRA spokesman said its education and training committee was considering whether to freeze the minimum salary level for 2010/2011 in view of the financial problems being experienced by firms, and would soon publish its decision. He said the SRA would also be reviewing whether it should abolish the minimum salary altogether, as part of the regulator’s move to outcomes-focused regulation, which will include all aspects of education and training. It will begin to consider the issue this autumn, in consultation with the profession.
A former cashier at a Midlands law firm has been jailed for five years for stealing £1.6m from her employer to fund a luxury lifestyle. Louise Martini, 36, from Solihull, pleaded guilty at Gloucester Crown Court to charges of money laundering and theft of £1.6m from the accounts of Solihull and Shirley firm Williamson & Soden. Martini, who had worked at the firm for 17 years since leaving school, committed the offences over a six-year period that began in 2003, and ceased when her actions were discovered in 2009. The court heard how she stole to fund a luxury lifestyle, buying expensive jewellery, designer clothes, cars, a share in a racehorse and funding the lease on a pub. Giving sentence, Judge Tabor QC said Martini had ‘plundered to a quite remarkable degree’. He said: ‘To get away with it for so long required you to lie, forge and defraud. This you did with coolness and a degree of cunning.’ Ian Williamson, senior partner at Williamson & Soden, said: ‘I welcome the sentence as the final chapter, bringing closure to a story that for us began with the partners’ discovery of Ms Martini’s fraudulent activities in February 2009 and her immediate dismissal.’ ‘We were of course horrified at what she did, and have worked closely with the police from the beginning,’ he said. Williamson said no client had suffered any loss as a result of Martini’s actions, and all funds were completely restored within a short time of the theft being discovered. He said the firm had a new accounts team that had undertaken a detailed review of the accounts function, and they were satisfied that nothing like this could happen again. Martini’s solicitor could not be reached for comment.
The Legal Services Commission has today extended the present family and combined family/housing legal aid contracts until 30 November next year. The contracts had previously been extended until 14 December 2010. The LSC said the additional extension of almost a year would give certainty to providers and clients. The LSC will allocate new matter starts to cover the period from 15 December 2010 to November 2011. This allocation will be set out in a contract schedule which will be sent to providers before 15 December. The LSC said that an announcement on the ‘harmonisation’ of family fees between solicitors and barristers will be made by ministers ‘as soon as possible’. A Law Society spokeswoman said: ‘The Law Society believes this is a pragmatic response to the current circumstances that should give us all time to consider medium-term solutions.’
The Law Society sent a letter of claim to the owner of the Solicitors from Hell website last week, as it prepared to launch a class action against him on behalf of the profession. The letter demands that website owner Rick Kordowski must close the site, or face an action for defamation, harassment and breach of the Data Protection Act. More than 300 individual solicitors, law firms and others have joined the action against Kordowski, having been affected by the site. The action is also being brought on behalf of the profession as a whole. The letter of claim, sent by the Society’s solicitors Brett Wilson, points out that Kordowski has been sued for libel on at least 16 occasions in relation to the website. It notes that more than £150,000 has been awarded against him in damages, which remains unpaid. Brett Wilson said its analysis of the 990 postings on the site between 15 April and 10 August 2011 indicated that the site serves ‘no legitimate purpose’. It said the site was a ‘magnet for the vexatious and bitter whose complaints would not stand up to scrutiny in any impartial tribunal or forum’. In many cases the author is a disgruntled opponent, the firm said. The Society’s letter of claim sets out a schedule of undertakings on which it seeks agreement from Kordowski. These include an undertaking to remove the entire site from the web and not to publish any of the content in future, or set up any other website with a similar name. A Law Society spokeswoman said: ‘Not all solicitors defamed on the website can afford the time and trouble to bring a case themselves, and the Law Society is taking every possible step to protect our members and the public interest.’ Kordowski said he denied all the allegations made against him. He pointed to the high levels of complaints against solicitors received by the Legal Ombudsman, and said the Society had rejected his offer to work together to expose wrongdoing in the profession. In a separate development last week, Kordowski lost two applications to appeal earlier judgments against him won by Megan Phillips, solicitor at London firm Bhatt Murphy, and Juliet Farrall, solicitor at London firm McCormacks. In Farrall’s case, Sir Richard Buxton held that Kordowski’s ‘argument that he offered the claimant the alternatives of excusing herself to him or paying a substantial amount of money, in each case to secure the removal of the posting, casts a dire light on the way in which he conducts his business’. He added: ‘The need to control the applicant’s activities’ had made ‘considerable demands on the court’s time’.
R v Burton: Court of Appeal, Criminal Division (Lord Justice Brunton, Mr Justice Cooke, Mr Justice Blake): 11 August 2011 The defendant was aged between 26 and 27 at the time of the alleged offence. X was aged 14. X’s mother found some love letters which she believed were from the defendant. The letters included passages such as: ‘when we lay together and kiss I want this all the time with you by my side…’ and ‘the way you hold me in your arms and kiss me makes me go weak at the knees’. X’s mother contacted the police. A police officer spoke with X and made a record of their conversation. The officer recorded that she asked X how she knew the defendant, to which X had replied: ‘he was my boyfriend some months ago and we have remained good friends’. Asked whether she had had a sexual relationship with him she replied: ‘No, I have not slept with him, but we have kissed and cuddled’. It was also recorded that X had said that the defendant had bought her alcohol and a phone. X had not been prepared to say anything further. She refused to provide either a statement or a video interview to the police. The defendant was arrested. In interview he appeared to suggest that he and X were boyfriend and girlfriend. He said that they had kissed and cuddled whilst they had been in a relationship. He further explained that they had ‘snogged’ with tongues. He said that he had feelings of love towards her. The defendant was charged with sexual activity with a child. X refused to give evidence in the proceedings and the prosecution decided not to compel her to attend. The prosecution applied to adduce the hearsay evidence of what X had said to the officer under s 114(1)(d) of the Criminal Justice Act 2003 (the Act). The defendant objected, on the ground that the provision was being used to circumvent the restrictions on hearsay evidence in s 116 of the Act concerning admissibility of evidence where a witness was unavailable. The judge concluded that the evidence should be admitted as it was in the interests of justice to do so. The defendant was convicted of sexual activity with a child. He appealed against conviction. The defendant submitted that the judge should not have allowed hearsay evidence to go before the jury. The appeal would be dismissed. The instant case was exceptional. The judge had taken into account the matters required to be taken into account under s 114(2) of the Act and his ruling was not marred by legal error (see - of the judgment). Admissibility – Cases where witness is unavailable – Sexual offence Timothy Palmer (instructed by Andrew Jay & Co) for the defendant. Stephen Lowne (instructed by the Crown Prosecution Service) for the Crown.
Emma Wray, solicitor (clinical negligence), Sway, Hampshire I was interested to read Paul Sankey on proposals to introduce a duty of candour as part of the health reforms. There is nothing new in this, as those familiar with the inquiry into the management of care of children receiving complex heart surgery at Bristol Royal Infirmary will recall. Recommendations from Bristol included the adoption of an NHS-wide culture of safety and openness firmly centred around a duty of candour when a mistake was made, even when that mistake might bring legal liability. The report was widely disseminated and much discussed but, as it reaches its 10th anniversary this year, it looks increasingly clear that anything but an enforceable statutory duty of candour looks doomed to failure. It is therefore dispiriting to read about the latest toothless attempt to bring about the culture of safety and openness that was a key recommendation of the Bristol inquiry. The argument then (and it remains just as potent today) was that the more that is known and understood about adverse events generally, the more it would be possible to address their causes and prevent them in future.
You know the ritual. A laptop computer, smartphone or memory stick goes missing and, a few weeks or months later, some shamefaced public body admits that the device contained sensitive personal data. Over the past year, however, the Information Commissioner’s Office (ICO) has started getting tougher with delinquent data handlers. As well as prosecuting offenders it now has the power to impose monetary penalties on organisations ‘in the most serious situations’. A remarkable proportion of these ‘serious situations’ seem to occur in public bodies. Of nine penalties issued last year, seven went to local authorities. (The remaining two were a solicitors’ firm, ACS:Law and an employment services company, A4e Limited.) We’re talking fairly serious money – £130,000 imposed on Powys county council, £120,000 on Surrey county council and £100,000 on Hertfordshire. These were all exceptional cases, involving highly sensitive information – including, incredibly, details of child protection cases – being sent to the wrong recipients. Someone should be punished. But is it right to hit the organisation with a monetary penalty, especially if all you’re doing is cycling money back to the exchequer? (The ICO is at pains to point out that the penalties go to the Treasury’s Consolidated Fund, not to pay for champagne parties at its Wilmslow HQ.) One opponent of this money-go-round is the Taxpayers’ Alliance pressure group. It reckons that financial penalties mean citizens are hit with a double tax – once to pay for collecting the data, and once for losing it. It has proposed instead that responsible managers be held personally liable for data lost while in their care. In principle, that sounds reasonable to me – and, as a registered data controller in a small business, I know I’m potentially in a glasshouse myself. The arguments against seem to be, first, that putting managers on such a spot would reduce the public sector to such a state of fear that nothing would ever get done. Possibly that’s what the Taxpayers’ Alliance has in mind. However, the second objection may have more force – the practical difficulty of imposing liability on people who would typically be employed staff, even at chief executive level. I’d welcome thoughts, especially from colleagues in local government and the NHS. If the whole personal liability idea is bonkers, it’s best to kill it off now before it gains political traction. After all, whatever efforts we make to promote good data governance, those memory sticks and mobiles will keep going astray.
The Gazette of 19 January contained two separate items that can be usefully linked: one a call to help the public, the other a warning of how such help can be turned against us. Grania Langdon-Down’s article on the difficulties of managing civil litigation with an increasing number of litigants in person reports the suggestion of the Civil Justice Council that legal professionals ‘sell small amounts of their time or take on one or two defined pieces of work in the course of a case’. When I started in practice nearly 40 years ago, I considered offering litigants in person exactly that. A drop-in service, open evenings and Saturday mornings, in a welcoming shopfront office stocked with all the court leaflets, ‘how to…’ guides and typing facilities – and with me on hand to give free 15-minute advice on how best to present their case. I was not doing it to get business – the cases would be low-value – but as a service to the community and to the court. A perusal of the solicitors liability sections in Cordery on Solicitors convinced me that my offer of help would be abused. No matter how much one might stress to the litigant in person that one was offering only a well-intentioned guide to presentation of documents and witnesses, and general comments about procedure, even if one got them to sign a disclaimer accepting that limitation, it was all too likely that a losing litigant would claim that I should have advised them further and better, and that insurers and the courts would hold me liable. Which is precisely what seems to have happened in Padden v Bevan Ashford, judging from the report of the case in the Court of Appeal. There is a distressed client; two local firms refuse to help; the client finally sees a newly qualified solicitor for 15 minutes’ free advice; the client is advised not to sign over her interest in the matrimonial home to her husband but does so nevertheless; the client sues the solicitor. I do not make any comment on the correctness of the decision in that case, which has been remitted for retrial. My point is a general one: that the law on solicitors’ liability tends to impose the same absolute standard of care, whether we are giving an anxious member of the public general off-the-cuff comments intended to explain and reassure, or advising a multinational on cutting-edge commercial work in consultation with a silk. Until insurers and judges recognise that the two are very different, it is unsurprising if solicitors decline the invitation of the Civil Justice Council to offer ‘dip in, dip out’ help to litigants in person. Our advice would necessarily be limited; our liability might not. John Baird, Southport