Weekly Notes: legal news from ICLR - 4 July 2014

Wolves, sharks and deep fried lawsuits are just some of the veiled metaphors you can hang on to the stories in this week’s selection of legal news from home and abroad, many of which have a religious or moral angle.

Banking 1: Shark pool

New York Attorney General Eric Schneiderman has filed a securities fraud lawsuit against Barclays bank, alleging that it duped investors into using its “dark pool” – a form of private stock exchange – on the basis that their orders would be kept secret, while allegedly permitting “predatory” high speed traders (or, as one might think of them, sharks) into the pool to take advantage of them. It is also alleged that Barclays invested its own clients’ money via the dark pool when they could have got better deals elsewhere. This follows earlier blottings of the Barclays copybook in relation to the LIBOR and gold price manipulation scandals. Full story: Reuters

For more about dark pools and high speed trading, see our review of the book that laid it all bare: Flash Boys by Michael Lewis.

Banking 2: Veiled threats from bogus firms

Last week’s disclosures about payday lender Wonga wringing the conscience of defaulting customers with fake lawyer letters (see Weekly Notes – 27 June 2014) seems to have spawned an investigation into the tactics of other debt pursuers, including first the Student Loans Company (SLC), a government-owned body, which used the fake name of what looked like a third party debt collecting agency; and, now, rather more significantly, some of the top high street banks. It seems Nat West, Lloyds and HSBC are gracing their chasing-up letters, which come from in-house lawyers, with letterheadings using names that look like (but are not) independently regulated third-party firms, according to the Guardian.

As you’d expect, the banks defend their actions, Lloyds putting out a statement clarifying the position:

‘Letters to our customers identify the qualified solicitor of record and make clear that SCM solicitors forms part of Lloyds Banking Group’s in-house litigation department.’

But the SRA (Solicitors Regulation Authority) is looking into the matter, according to the Law Society Gazette.

Comment: Richard Moorhead, on Lawyer Watch: All the gone Pseuds: the dangers of fiction when threatening with the law

Hacking Trial: sentencing

Following the guilty pleas of some of the defendants in the eight month long phone hacking trial, and the guilty verdict against Andy Coulson (as reported in Weekly Notes – 27 June) sentencing was postponed till Friday 4 July, when Saunders J imposed the following sentences:

Coulson, former editor of the News of the World: 18-months imprisonment
Greg Miskiw, former news editor of the NOTW, six months imprisonment
Neville Thurlbeck, former chief reporter, NOTW, six months imprisonment
James Weatherup, former newsdesk executive, four months suspended sentence, plus 200 hours unpaid work
Glenn Mulcaire, private detective for NOTW, six months suspended (he was previously jailed for phone hacking), plus 200 hours community service.

Full sentencing remarks, via Press Gazette.

Commentary from UK Criminal Law Blog.

And from Joshua Rozenberg in The Guardian: Phone-hacking case shows openness is best policy in criminal justice

Useful roundup of links from Obiter J: Law & Lawyers blog.

Rolf in sheep’s clothing

The well known TV entertainer and artist, Rolf Harris, was found guilty on Monday 30 June of 12 charges of indecently assaulting girls between 1968 and 1986. In one case he had groomed the daughter of a friend from the age of 13. Other cases involved interference with girls as young as 7 or 8. And yet it seems he also, at the height of his offending, presented an educational film (Kids Can Say No!) warning children of the dangers of sexual abuse. Full story: The Daily Telegraph.

Commentary: UK Criminal Law Blog.

Since the trial, more alleged victims have come forward and it is likely Harris will face further proceedings in this country, if not also in his native Australia. He may also face civil claims for damages to be paid to his victims.

rolf in sheeps clothing (3) — On google, high interest news, low value art. Not much chance of any right to be forgotten, though, as the search engine appears to gasp and stretch its eyes.

Two aspects of the case are of legal interest.

(1) When he was first arrested his lawyers apparently relied on the then recently published Leveson report and recommendations to persuade newspapers not to report the fact and threatened libel actions if they did. But when the fact of his arrest was made known, it led to more alleged victims coming forward. This tends to support the case for not suppressing the identity of arrested suspects in sexual offences cases, whatever the rule about complainants. For more on this, see The Drum, where Chris Boffey explains how this happened (with a nice repetition of the word “bottle”):

In his report into the culture, practices and ethics of the press, Leveson had said: “I think that it should be made clear that save in exceptional and clearly identified circumstances (for example where there may be immediate risk to the public) the names or identifying details of those who are arrested or suspected of a crime should not be released to the press or the public.”

Harris’s legal team, Harbottle and Lewis, put the fear of God into the media immediately post-Leveson [relying, inter alia, on this proposal] and that continued for five months until the Sun had the bottle to break the story on its front page.

(2) During his trial, evidence was adduced from witnesses who claimed to have been abused by Harris outside the jurisdiction – in Australia, New Zealand and Malta – for which he could not be tried in the UK, but which was led as “an added illustration of his behaviour”, ie to support propensity and dispel the notion of coincidence. For more on this, see comment by Felicity Gerry QC (co-author of the Sexual Offences Handbook) on The Justice Gap: Rolf Harris, jurors and heavy prejudice.

Sentencing was adjourned till Friday 4 July, when Sweeney J imposed a total prison sentence of five years and nine months for the 12 offences. Full sentencing remarks, via Crime and Justice.

Commentary on UK Criminal Law Blog.

UPDATE: Rolf Harris jail sentence to be reviewed by attorney general, via the Guardian.

Woolf in sheep’s clothing

In a debate in the House of Lords for the second reading of the Criminal Justice and Courts Bill (which among other things is aimed constricting the pipeline of judicial review), Lord Woolf added his dismay to that of other legal peers (including Lord Pannick and Lord Brown of Eaton-under-Heywood) with this beastly rumination:

My Lords, when I was a relatively young judge, a long time ago, and I had to travel on judicial business, it was suggested by the then Lord Chancellor’s Department that I should travel under a nom de plume for my safety. It was suggested that Mr Sheep would be an appropriate name. I am afraid that I have reluctantly come to the conclusion that, as regards the rule of law, the Lord Chancellor, Mr Grayling, is showing signs of becoming a wolf, so far as clothing is concerned, rather than a Lord Chancellor. The judiciary, I fear, may be the sheep. I hope that he is not doing this deliberately. I believe that he is sincere in his many protestations that he is seeking to fulfil his oath and his special statutory responsibilities, but he has to be judged by his actions, to some of which I am about to refer, as well as his words.

The actions in question included proposals which His Lordship regarded as “contrary to the rule of law”, citing, as a declaration both of interest and of expertise, De Smith, Woolf, & Jowell’s Principles of Judicial Review and Zamir & Woolf, The Declaratory Judgment.

Full speech, via They Work For You.

Hat tip to UK Human Rights blog, You cannot be serious! Peers call ‘out’ on Government’s judicial review reforms – Angela Patrick.

And, it hardly bears mentioning, apart from the pun in the title, there is no connection whatever between this story and the previous.

LC/SSJ: a legal and political BOGOFF?

Still in the House of Lords, and on the subject of the Lord Chancellor, the Select Committee on the Constitution has put out a Call for Evidence on the office. The committee invited interested organisations and individuals to submit written evidence to the inquiry. Please form an orderly queue.

A key issue raised by the committee is question 8: “What are the advantages and disadvantages of the office of Lord Chancellor being held by a lawyer?” This has already been answered to a large extent by David Allen Green in his blog for the FT, Does a lord chancellor really need to be a lawyer?

The committee also asks (Q4): “Are the offices of Lord Chancellor and Secretary of State for Justice best performed by the same person?”

This raises the prospect of the roles being occupied by two separate persons, one of whom might even be a lawyer, which might relieve the slightly contradictory nature of the combined role at present. Though, to look on the bright side, we are at least getting two roles for the price (and expenses claims) of one – much like a supermarket BOGOFF (buy one, get one for free) deal.

PS. Thought for the day. What if the Chief Medical Officer (a member of the board of the NHS, currently occupied by Dame Sally Davies, a consultant haemotologist and professor of haemoglobinopathies) were to have no medical qualifications. Would that matter?

Law (and religion) around the world

China

Students and civil servants in Xinjiang, a mainly Muslim area of north west China, have been ordered not to take part in Ramadan fasting. Beijing is cracking down on security in the area in the wake of recent violent unrest, which the Beijing government blames on the influence of external terrorist links. Full story: India Today.

France

Burqa ban upheld by Strasbourg court.

In SAS v France the European Court of Human Rights decided that the so-called French burqa ban did not violate the European Convention on Human Rights. Technically, the law in question (Loi no 2010–1192 interdisant la dissimulation du visage dans l’espace public) should be termed a niqab ban, not a burqa ban, since it is the facial covering, not the veiling of the rest of the body, which the law prohibits. The applicant, who was represented by UK lawyers, had argued that the law breached, inter alia, the right to family life under article 8 and the right to manifest religious belief under article 9, and discrimination under article 14 of the Convention. The court upheld the French law on a fairly narrow point: without presuming to find that the religious obligation to veil up was oppressive or gender-unequal, and rejecting the notion that it was necessary on grounds of public safety, it concentrated instead on the concept of ‘respect for the minimum requirements of life in society’ or ‘living together’ (paras 116, 121, 122), and concluded (giving France a wide margin of appreciation) that it was proportionate to the aim pursued (paras 155, 157-159).

The judgment seems to be in line with the recent trend to give states parties a wide margin of appreciation on matters relating to religious observance. For more detailed summary and commentary, read:

Frank Cranmer, posting on Law & Religion UK: Ban on covering face in public not a breach of ECHR: SAS v France

Stephanie Berry, lecturer in public law at Sussex University, on the Blog of the European Journal of International Law (EJIL: Talk!): SAS v France: Does Anything Remain of the Right to Manifest Religion?

Carl Gardner, author of the Head of Legal blog, took part in a discussion on BBC Radio Wales (starting at 2:10:10) in which the possibility was mooted that a parallel ban on miniskirts might also be upheld.

India

Though not strictly a matter of religion versus law, the ruling by an Indian court that a husband who forbad his wife wearing kurta and jeans, and insisted upon her donning a saree, amounted to cruelty and constituted grounds for a divorce.

Full story: India Today

South Africa

Trial of Oscar Pistorius resumes. A psychology report ordered by Judge Thokozile Masipa disclosed that the athlete, accused of murder, did not have a mental disorder when he killed his girlfriend. The report result was announced when his trial resumed on 30 June after being adjourned for the report. Both prosecution and defence have accepted the results of the psychological report but it has not been published. Full story: BBC.

This week’s slightly silly story

A right carry-on with the Carron

The chip shop where the infamous deepfried Mars Bar delicacy (one of your Scottish five a day) was invented, has been told by the confectioner that it must display a disclaimer to the effect that the company does not recommend or endorse this particular treatment of its product.

The letter came after the shop applied for European protected name status for the name of the delicacy, which is The Carron.

Full story: Daily Record.

Parish notices

The new chair of the Board of the Judicial College is to be Lady Justice Rafferty DBE, commencing on 1 August. She will continue to sit in the Court of Appeal. She replaces Lady Justice Hallett DBE, Cice President of the Court of Appeal (Criminal Division). Announcement via Courts and Tribunals Judiciary.

On 21 June Lord Justice Moses resigned as Lord Justice of Appeal. He will become chairman of the Independent Press Standards Organisation (IPSO).

And finally…

A comical approach to intellectual property law

Julia Powles is a PhD student in Cambridge (Laws) but is also the creator of Law Comics (with assistance from illustrator Ilias Kyriazis). The first instalment focuses on patent law and is titled: Alice in Patent Land. The comic strip is reproduced in full on Patently-O, but this taster gives some idea of its energetic flair. Reproduced with Julia’s kind permission.

Weekly Notes: legal news from ICLR – 4 July 2014