THE WRIT THE JOURNAL OF THE LAW SOCIETY OF NORTHERN IRELAND ISSUE 232 Winter 2019/Spring 2020
THIS ISSUE Society welcomes its new President, Rowan White
Cognitive bias in The bounds of protected speech Child Contact Centres fingerprint evidence A review of the decision in the An outline of the role, Does the alleged ‘matching’ case of In re Jolene Bunting responsibilities and requirements ridge detail even exist? [2019] NIQB 36. of these safe and neutral spaces. DUAL Asset has partnered with Bluechip to provide Title Insurance solutions in Northern Ireland
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PUBLISHERS The Law Society of Northern Ireland Law Society House 96 Victoria Street BELFAST BT1 3GN Tel: 028 9023 1614 Fax: 028 9023 2606 E-mail: [email protected] Website: www.lawsoc-ni.org
EDITOR Peter O’Brien [email protected]
DEPUTY EDITORS Rowan White, Society President and David A Lavery CB, Society Chief Executive. Heather Semple [email protected] Paul O’Connor Contents [email protected]
ADVERTISING MANAGER Karen Irwin [email protected] 04 Cover Story: DESIGN Rowan White, SHO Communications Consultants
DISCLAIMER new President of the Law Society The Law Society of Northern Ireland and its agents accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine and any view or opinions expressed are not necessarily those of the Law Society’s Council, 08 Indictable Cases Process (ICP) rollout save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material 19 Partial commencement of Mental Capacity Act (NI) 2016 in this publication can be accepted by the authors, contributors, editor or publisher. The editor reserves the right to make publishing decisions on any 22 Belfast Magistrates’ Court - revised Bail protocol advertisement, loose insertion or editorial article submitted to this magazine and to refuse publication 23 Principle of indemnity or to edit any advertisement, loose insertion or editorial material as seems appropriate to the editor. The Law Society of Northern Ireland and its agents do 26 SDLT - Sit Down, Let’s Talk not endorse any goods or services advertised including those contained in loose insertions, nor any claims 34 Brexit planning a top Society priority or representations made in any advertisement/loose insertions in this magazine. No part of this publication may be reproduced without the written permission 38 Advanced Advocacy marks 20th anniversary of the copyholder and publisher, application for which should be made to the publisher. 49 Abstracts from the Courts www.lawsoc-ni.org
Copy deadline Writ readers can access back issues of You can also find details on the website about: • Libero database for Summer 2020 Edition: the magazine as far back as October / December 2000 at www.lawsoc-ni.org - • Latest CPD courses • Employment opportunities Friday 8 May 2020 follow Publications link • Forthcoming events 4 Journal of the LSNI Winter 2019/Spring 2020
Law Society welcomes new President, Rowan White
The new President takes up his post with a commitment to represent the interests of the solicitor profession in Northern Ireland both nationally and internationally. Speaking following the Society’s Annual General Meeting, Rowan White said: “I am greatly honoured to become the President of the Law Society of Northern Ireland. One of my primary goals during my Presidency will be to regularly engage with our members on the important work of the Society. This will be achieved through a series of new membership support initiatives which will be rolled out in 2020. I will also continue the work of the Society in promoting the excellence of the solicitors’ profession at home and abroad. This will include underscoring the importance of the network of solicitor firms across Northern Ireland and their value in providing independent legal advice and access to justice for the entire community.”
2020 Hindsight As JVP, I was quickly co-opted on to the Business Committee, which is the senior If anyone had suggested to me this time committee of the Council responsible for two years ago that I would begin 2020 by formulating policy and strategic direction writing this message to you all as President for the Society. This was an invaluable way of the Law Society of Northern Ireland, I of getting both the inside track on the most would have laughed aloud and told them significant issues facing the Society and, just to get their crystal ball recalibrated or as importantly, an insight as to how they upgraded. That was simply not within my should be tackled. contemplation then. However, events can quickly take an unexpected turn and, by I also started to receive an increasing number mid-2018, I had found myself nominated of invitations to events and functions at which as the Society’s next Junior Vice President, I was expected to represent the Society, either before being elected to that position in on my own or with other office-bearers. November that year. By custom, the JVP is Among the most interesting of these are the the next President so I had some eighteen biannual Four Jurisdictions Meetings, hosted months in total to get used to the notion in turn by each of the Law Societies in these that, “D.V. and W.P.”*, I would succeed to islands. They are wonderful opportunities for that office come the end of November the respective Presidents, Vice Presidents and 2019. This run-in period is vitally important Chief Executives to discuss matters of common because the President’s role is so diverse concern to the solicitors’ professions in their that it can take even seasoned Council jurisdictions and to build on the excellent members a significant period of time to professional and personal relationships which absorb all that is likely to be required of we have with all our neighbouring Societies them during their year in office. and which have proved so valuable to us over Journal of the LSNI 5 Winter 2019/Spring 2020
the years. The next one, hosted by the Law means complacent and will remain vigilant backgrounds experience in gaining access to Society of England & Wales, takes place in late in its efforts to ensure that any remaining and remaining in the profession. January, when items such as Brexit, regulation implementation issues are resolved as quickly of the profession, access to justice and how as possible and that the operation of the The welcoming and inclusive environment to best to protect and promote the reputation of system improves over time. which I refer must be one in which the mental the profession will provide plenty of scope for health and wellbeing of both solicitors and interesting discussion. Conveyancing: I hope that there will be support staff is of paramount concern. A very opportunities, in conjunction with the recent survey conducted by the Law Society For me, the other striking aspect of the JVP Society’s Conveyancing & Property Committee, of Ireland showed that the wellbeing of their role was the warmth and goodwill extended to highlight the breadth and depth of the solicitors falls well below the EU average, with by other members of the Presidential team, work which our hard-pressed conveyancing symptoms of anxiety, depression and stress all past Presidents, Council members and, colleagues carry out, often in demanding very prevalent. Worryingly, those in the first indeed, members of the profession at large. circumstances and to tight deadlines, but not five years post-qualification, as well as those I had been told by some of my predecessors always with the degree of appreciation which with 16 to 20 years’ PQE, reported the highest that this would be the case and it was they deserve from clients and the media. I levels of stress. It is reasonable to infer that immensely reassuring to find that they were hesitate to compare conveyancers to ducks the position is unlikely to be significantly right. but it does seem to me there is at least one different in our jurisdiction. For that reason, distinct similarity; most of the time both I am delighted that Action Mental Health has I am telling you all this because I hope it generally float along serenely but the reality agreed to partner with the Society in the year helps to demystify the road to the Presidency is that there is a lot of unseen work going on ahead and I am looking forward to working just a little bit and will encourage colleagues below the surface. The objective will be to with them as we aim to encourage colleagues to consider getting involved with the Society highlight the extent and importance of all that to recognise the extent of the problem and if they have not already done so. You will find invisible effort. to identify measures that will help to achieve that involvement rewarding and, even if it improvements. takes a similar path to mine, it will not prove Equality, Diversity and Wellbeing: The too daunting. Society has work to do in showing leadership Law Society House: Many of you will be to its members on Equality and Diversity aware of the proposals to enhance the issues so that our profession can legitimately accommodation within Law Society House 2020 Vision claim to provide a welcoming and inclusive for the benefit of members, principally by environment for all who wish to pursue a enlarging the Lecture Theatre and providing With apologies for heading both sections of career in it. In 2019, the profession achieved a a suite of rooms which members can use not this message with bad puns, let me now give 50:50 gender balance for the first time but the only for meetings but also for mediations you a brief overview of what the immediate number of women in leadership roles remains and consultations. It may also be possible future may look like for us. stubbornly low at around the 30% mark (up to generate additional income from these from 27% in 2014). Our recent past President, resources by making them available to non- Brexit: Our Chief Executive, David Lavery, Eileen Ewing, has prepared a report on the members when they are not required by the and Dr Frank Geddis, Head of Research and issues highlighted by the roadshows which Society. If all goes according to plan, work Governance, have very capably been leading she hosted in various venues around Northern should start on the meeting room suite in the the way in preparing our profession for the Ireland, including: first quarter of 2020, with the construction consequences of Brexit. They have produced of the enlarged Lecture Theatre taking place an excellent guide entitled “Brexit and Legal • Unc onscious bias against female employees during the summer months. Practice: Northern Ireland, Ireland and the – not just from male employers but also European Union” which can be viewed and from clients This is just a small sample of the myriad downloaded on the Society’s website. The matters which will occupy the attention of the most immediate concern has been to preserve • A continuing gender pay gap Presidential team, the Chief Executive and the existing mutual practice rights on the island Society’s hard-working staff throughout what of Ireland and, as I write, we are close to • Absence of flexible working arrangements promises to be a busy and eventful year. I finalising a Memorandum of Understanding hope you will all prosper in your professional to that effect with the Law Society of Ireland. • Lack of in-firm mentoring endeavours but will also find ways to balance Uncertainty around the whole Brexit project is, the demands of your demanding working lives of course, bound to last for some considerable • The need for male champions to advocate against the impact those demands have on time and the Society will continue to do all for change your wellbeing and that of your families and that it can to support its members through the colleagues. process. Eileen’s report is now being considered so that next steps can be identified and implemented. Rowan White LAMS: Those with Legal Aid practices have January 2020 had a lot to contend with over the past year We also need to consider whether there is or so following the introduction of the new more that the profession can do to alleviate * An expression much favoured by my late LAM system. While it appears that the worst the difficulties which those suffering from mother, meaning ‘Deo volente (God willing) may now be behind us, the Society is by no disability and those from disadvantaged and weather permitting’! 6 Journal of the LSNI Winter 2019/Spring 2020
New Presidential and Chief Executive Team announced
The new Presidential and Chief Executive Team took office following the Society’s Annual General New Presidential and Chief Executive Team Meeting which took place on Wednesday 27 November 2019.
At the AGM the Society announced the election of a new Council to support the membership of the solicitor profession.
The Council is the principal governing body with overall responsibility for the governance of the Law Society of Northern Ireland and it’s important regulatory and representative functions.
The Society’s new office bearers, including Treasurer, Brian Speers, will support the newly elected Council which will now serve a three year term of office.
The new Presidential and Chief Executive Team From left: Suzanne Rice, Senior Vice President; Rowan White, President; Brigid Napier, Junior are pictured right. Vice President; David A Lavery CB, Chief Executive.
PRESIDENT - ROWAN WHITE
Rowan White graduated with an honours degree in law from the University of Cambridge in 1974 and returned to Belfast to take up an apprenticeship with Crawford & Lockhart, Martin H Turnbull & Co. He remained with that firm after he was admitted to the Roll of Solicitors in Northern Ireland in 1977 but moved to its affiliated practice in Ballymena, J & A Caruth & Bamber, in January 1979. Rowan returned to Belfast in September 1983 to join Norman Wilson & Co, becoming a partner in 1985. Although that firm had by then been in existence for more than 80 years, he was, remarkably, only its third principal in all that time. Rowan was instrumental in its merger with leading Irish law firm Arthur Cox in 1996 and was a partner in Arthur Cox’s Belfast practice from 1996 until April 2018, when he took up a consultancy role. His practice covers all areas of commercial property, including acquisitions, disposals and leases for local, national and international clients, as well as property development, finance and corporate support work. Over the years, he has been involved in many of the biggest and most complex property transactions in Northern Ireland. Rowan has been active in a number of professional bodies over the course of his career. He was Chairman of Antrim & Ballymena Solicitors’ Association in 1983 and of The Belfast Solicitors’ Association in 1991/92. He was a founder member and the first Chair of The Northern Ireland Commercial Property Lawyers’ Association when it was established in 2006. Elected to the Council of the Law Society of Northern Ireland in November 2015, Rowan has chaired its Client Complaints and Education Committees, as well as serving on numerous other committees and sub-committees. He also serves as a nominee of the Society on the Council of Legal Education.
SENIOR VICE PRESIDENT - SUZANNE RICE
Suzanne Rice read Law and French at Queen’s University Belfast before attending the Institute of Professional Legal Studies in Belfast where she completed her apprenticeship with Con O’Hagan Solicitors in Lurgan, County Armagh. After qualifying as a solicitor in 2003, Suzanne continued her practice in Belfast where she now specialises in all aspects of Family Law and most notably Divorce and Children’s Law. Suzanne currently works for McKeown and Company Solicitors in Belfast, specialising in Criminal Law, Family Law and Plaintiff Litigation. Journal of the LSNI 7 Winter 2019/Spring 2020
Suzanne is an Advanced Solicitor Advocate and is on the Northern Ireland Guardian Ad Litem Panel as well as the Law Society of Northern Ireland’s Family Law Committee. In 2009 Suzanne qualified as a Collaborative Divorce Solicitor and she became a Council Member of the Law Society of Northern Ireland in November 2013. She currently represents the profession in ongoing Government initiatives towards improving children’s law services. Her expertise in this area has been instrumental in assisting change and development to the practice of children’s law and she continues to advise on consultations and steering groups in this field. As well as representing both parents and children, Suzanne also acts on behalf of international Governments in child abduction cases and she has recently acted on behalf of the American, Australian, Dutch, Irish, Turkish and Moroccan authorities before the High Court of Justice in Northern Ireland. In 2010 Suzanne became Legal Advisor to the Family Care Society in Adoption Matters and she is currently a board member of the Children’s Law Centre Management Board.
JUNIOR VICE PRESIDENT - BRIGID NAPIER
Brigid Napier graduated from Queen’s University Belfast in 1985 and joined her father, the late Sir Oliver Napier, in the family practice of Napier & Sons, a firm established by her grandfather in 1930. She has been practising as a solicitor in the area of Insolvency and Commercial Litigation for more than 30 years and is a Licensed Insolvency Practitioner and a Notary Public. Brigid is the only Northern Ireland lawyer who has been ranked for three consecutive years in Band One for Personal Insolvency in the UK by Chambers & Partners. She currently advises on all aspects of Personal and Corporate Insolvency and is regularly appointed Trustee in Bankruptcy and as a Liquidator in Members’ Voluntary Liquidations, Creditors’ Voluntary Liquidations and by the Insolvency Service in Compulsory Liquidations. She also advises on alternatives to bankruptcy and liquidation for clients facing Personal and Corporate Insolvency and on directors’ responsibilities, disqualification and personal liability. Brigid has received the “Best in Professional Services Award” from Women in Business Northern Ireland and was awarded Advanced Coaching status by the Institute of Leadership and Management. In 2017 she was elected to the Council of the Law Society of Northern Ireland where she has served as a member of a number of committees, including Professional Indemnity Insurance, Financial Services and Professional Ethics and Home Charter. She also sits on the Board of Law Society NI Financial Advice Ltd and Leukaemia & Lymphoma NI. Brigid’s interests include travel and art.
CHIEF EXECUTIVE - DAVID A LAVERY CB
In September 2019 the Society welcomed David A Lavery CB as its new Chief Executive.
David joined the Society after spending the greater part of his career in the justice system, where most recently he was Deputy Permanent Secretary and Director of Access to Justice in the Department of Justice.
He also served as Chief Executive of the Northern Ireland Courts and Tribunals Service between 2001 and 2012 and as Principal Private Secretary to Northern Ireland’s First Minister from 1998-2001.
David has Law degrees from Queen’s University, Belfast and from Harvard Law School and spent the earlier part of his career in private practice at the Northern Ireland Bar.
He was a Knox Fellow at Harvard and an Associate at Harvard’s Centre for International Affairs. He is also an Eisenhower Fellow and is currently a Visiting Professor at Ulster University.
In 2008 he was made a Companion of the Order of the Bath. Since taking up his role in September 2019 he has overseen the development of the Society’s Brexit Strategy. Commenting on his new role, David said: “I am delighted to join the Law Society at an important point in its development. I look forward to engaging with members and taking their views on shaping the Society’s future”. 8 Journal of the LSNI Winter 2019/Spring 2020
Indictable Cases Process (ICP) Rollout
The Indictable Cases Process derives from a available evidence are made known early in promote awareness and understanding of ICP pilot in Ards (County Court) Division which the process, the potential for an early guilty across the criminal justice system. operated in 2015. The Criminal Justice Board, plea to be offered is increased. the main strategic oversight group for the Successful application of ICP principles to criminal justice system in Northern Ireland, From May 2017, ICP principles were rolled out criminal cases can deliver a really positive agreed to roll out ICP following the success of across all regions and districts to the following result – a small number of cases were the pilot. Completed cases saw a significant offence types: concluded within six months, demonstrating reduction in the average end-to-end and validating the potential impact of ICP. processing time from 565 days to 313 days. • murder and manslaughter; • attempted murder; ICP rollout represents a key milestone in The five key principles underpinning ICP are: • serious assaults (sections 18 and 20 efforts to speed up the justice system and the assaults); Department of Justice and its key partners are • early engagement between police and • all drugs cases prosecuted on indictment; considering opportunities to extend the use of prosecutors; and ICP to other offence types. • early engagement between the • conveying a list A article into or out of prosecution and defence; prison. A series of information and awareness • the use of proportionate evidence eg sessions to refresh knowledge and staged forensic reporting, property logs to These offence types were selected following understanding of ICP took place during the prove continuity etc; discussions with criminal justice partners course of 2019. Attendees included defence • judicial case management; and on the type of cases to which the five key practitioners, the judiciary and criminal justice • supporting the delivery of clear sentencing principles apply to best effect and account for agencies. judgments. approximately 25% of the total Crown Court caseload. If practitioners have any questions Early engagement is central to the effective about ICP, they should contact the Justice operation of ICP and in particular early However, evidence indicates that the number Performance Team at the Department of engagement between the prosecution of cases identified and progressed is lower Justice on 028 9016 3474 or by email at and defence. When the line of inquiry and than expected. PPS and PSNI are working to [email protected]
SITTINGS AND VACATIONS OF THE COURT OF APPEAL AND THE HIGH COURT: 2020 - 2021
ORDER 64 OF THE RULES OF THE NORTHERN IRELAND COURT OF JUDICATURE 1980
Michaelmas Term Halloween Recess
Monday 7 September 2020 to Monday 26 October 2020 to Monday 21 December 2020 Friday 30 October 2020 inclusive
Christmas Recess
Tuesday 22 December 2020 to Tuesday 5 January 2021 inclusive
Hilary Term Easter Recess
Wednesday 6 January 2021 to Monday 29 March 2021 to Friday 26 March 2021 Friday 9 April 2021 inclusive
Trinity Term Long Vacation
Monday 12 April 2021 to Thursday 1 July 2021 to Wednesday 30 June 2021 Friday 3 September 2021 inclusive
10 Journal of the LSNI Winter 2019/Spring 2020
Cognitive Bias in Fingerprint Evidence: Does the alleged ‘matching’ ridge detail even exist?
Simon Bunter, Forensic Scientist, Keith Borer Consultants
Cognitive 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. Crime scene marks received by Fingerprint fingerprint can persuade the Examiner Examiners are often poor quality with into ‘finding’ supposedly corresponding There appears a commonly held view amongst indistinct, smudged and distorted areas. As ridge characteristics in the crime scene police Fingerprint Examiners that they are a result, ridge characteristics (the features mark - detail that they otherwise would not immune to such bias because they are able to mainly considered during fingerprint have observed. This is known as ‘circular’ ‘use their expertise and experience to nullify comparisons) are frequently unclear with or ‘reverse’ reasoning and can result in it’ - nothing could be further from the truth. even their very presence being ambiguous. Fingerprint Examiners making exaggerated or Ironically, dismissing cognitive bias is a type of Conversely, a suspect’s fingerprint form is unrealistic claims regarding the certainty of bias in itself – ‘blind-spot bias’. Examples of made up of good quality fingerprints taken their result and the number of matching ridge the types of situation where cognitive bias can from a person in controlled conditions. characteristics that exist. A good example be introduced to the fingerprint comparison of this occurring is in the case of R-v-Smith process include: Currently... (2011).
• A police officer informing an expert that When examining fingerprint evidence Although the 16-point standard was abolished the suspect was seen holding the item from crime scenes, Fingerprint Examiners in 2007 in Northern Ireland (2001 in England on which the questioned fingerprint was loosely follow a methodology known as and Wales), many Examiners still record the found. ACE-V (Analysis, Comparison, Evaluation and number of matching ridge characteristics Verification). It is the manner in which this in their evidential statement. It is often • The verifying experts being aware that the process is carried out that can affect the professed that a greater number of ridge original examiner has already ‘identified’ validity of an expert’s result. Commonly, the characteristics is a ‘safer’ identification than the fingerprint to the suspect. ‘analysis’ stage tends to consist of a brief a lesser amount; however, it is the quality of look at the crime scene mark to determine ‘matching’ features which should take centre • Job satisfaction – a fingerprint whether it is suitable for comparison. stage, not simply the number. For example, a identification is generally perceived as a Normally the Examiner does not make notes Fingerprint Examiner’s claim that there are ‘18 ‘good’ result. of features observed during this important matching ridge characteristics’ might sound part of the process, instead moving straight like a compelling match whereas, in reality, • Performance evaluation – the performance on to compare the mark side-by-side with the the vast majority of these characteristics of some Fingerprint Examiners and fingerprint forms of any suspects. might be extremely questionable. Equally, even entire Fingerprint Bureaux have the existence of differences should be previously been assessed by the number Once the comparison commences, cognitive highlighted and explored. Strictly speaking, of identifications they have found. bias comes into play. The good quality one confirmed different ridge characteristic fingerprint in the suspect’s reference form can should be enough to exclude a suspect. And most importantly... cause the expert to ‘see’ corresponding ridge Unfortunately, one consequence of the current detail in the poor quality crime scene mark methodology is that apparent differences • The suspect’s fingerprint form itself – the that simply does not exist. In other words, between the mark and the suspect’s print are main focus of this article. the clear ridge characteristics in the suspect’s frequently disregarded; once the Examiner starts to find similar characteristics, any detail Journal of the LSNI 11 Winter 2019/Spring 2020
that looks different is simply ‘explained prior to any comparison. These form. After this was demonstrated in the away’. annotations are retained to show the witness box, Mr Kiseliov was found not guilty. exact detail the Examiner observed prior Although cognitive bias is not a concept to any influence induced by sight of the So just how safe is that fingerprint new to the fingerprint community, suspect’s fingerprint form. When applied identification in the police expert’s very little, if anything, appears to be correctly, this accurate and transparent Proportionate Forensic Report (PFR1)? Is changing in Fingerprint Bureau procedures mechanism can serve to highlight just how it a safe and compelling match or is it to nullify such bias. In 2011 a public exaggerated some fingerprint evidence another example to add to the growing list inquiry into the erroneous Shirley McKie really is. of cognitive bias affected cases that include fingerprint ‘identification’ resulted in 86 Shirley McKie, Brandon Mayfield, Peter Smith, recommendations being made. Several of In a number of cases this approach has Andrej Kiseliov and so on? these recommendations detailed specific shown the fingerprint evidence to be actions that Fingerprint Examiners should unreliable and far from the ‘conclusive’ undertake during their examinations in order result initially claimed. For example, Simon Bunter BSc, MCSFS, FFS to tackle the problem of cognitive bias. in the case of R v Kiseliov (2016) a Many of these important recommendations palm print in blood on a doorframe have gone unheeded and many Fingerprint was ‘identified’ by a police Fingerprint Simon Bunter is a Fingerprint Specialist Bureaux continue to work in a similar manner Examiner and described as having ‘18 clear at leading forensic science consultancy as before. ridge characteristics in agreement’. When Keith Borer Consultants. He is instructed in a linear sequential unmasking approach criminal, civil, family and private matters The Solution? to the ACE-V examination was adopted, and works extensively throughout the UK however, only one of the alleged 18 ridge and Ireland, and further afield as required. Adopt a ‘linear sequential unmasking’ characteristics could be clearly observed in If you have a case involving fingerprint approach to the ACE-V examination process. the crime scene mark. The remaining 17 evidence which requires independent This involves analysing the crime scene characteristics relied on by the police were assessment, please contact Keith Borer mark in isolation of the suspect’s reference either not observed in the bloody palm Consultants on 0191 332 4999 or fingerprint form. An image of the mark is mark at all or were shown to have been [email protected]. annotated with the ridge detail observed influenced by the defendant’s palm print
You can inspire the greatest minds BECOME and invest in world-class research PART OF THE A gift in your will to a registered charity is a tax-effective and unique way for you to support those causes that you SOLUTION are passionate about, without affecting your finances in your lifetime. Legacy gifts to The Queen’s University of Belfast Foundation, both big and small, are instrumental in pushing boundaries for solutions to global challenges in areas such as medical research, cyber-security, global food security and conflict resolution.
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Registered Charity Number: NIC 102044 12 Journal of the LSNI Winter 2019/Spring 2020
in access to the centre being refused. volunteers. Staff and volunteers are available NI Child Contact Centres cannot provide separate rooms for assistance, not supervision. No individual Centres – for observed visits, nor accommodate or close observation, monitoring or evaluation supervised contact. of contact or conversations takes place, other than to ensure that the environment is safe and Information for • Child Contact Centres will always attempt suitable for the child. to facilitate contact but this requires the Stakeholders understanding and cooperation of all What we require stakeholders and potential users of the service. Individual centres will apply their • Child Contact Centres require all potential Introduction own risk assessment to any application users of the service to submit a fully The following article outlines the role, and on the basis of the outcome of the completed referral form. Non-completion of responsibilities and requirements of Child assessment will decide the suitability of the form will result in delay and potential Contact Centres. Appendix A provides a list of the individual centre to host the contact. rejection of the referral. The completion of all centres in Northern Ireland. Due to the individual nature of applications the referral form is the responsibility of the and centres this may result in differing applicant and their legal advisor. Where Who we are outcomes at centres. the applicant is a litigant in person they will own the responsibility of completing • Child Contact Centres are independent • Child Contact Centres do not issue reports the referral form. voluntary charitable organisations which on contact other than to provide details of provide safe, neutral environments for dates and times of attendance. Typically • Child Contact centres require all information children and their parent or significant any issues of concern in relation to contact relating to criminal activities which are other family members to meet. will be raised with referrers, social workers presently being investigated by the or Children’s Court Officers if involved. police or are awaiting a decision by PPS • Child Contact Centres are members of the Where there are child protection concerns or previous criminal activities which Northern Ireland Network of Child Contact cases will be referred to the local Gateway have resulted in a caution/conviction or Centres and of the National Association of team. incarceration to be detailed at the initial Child Contact Centres. point of referral, as subsequent discovery • Child Contact Centres are staffed typically What we are not will result in use of the centre being by part-time employed coordinators and terminated. Centres have a duty of care • Child Contact Centres are not an extension unpaid volunteers who are vetted and to all staff, volunteers and all users of the of and are independent of the legal trained in providing an impartial and service and the ability to carry out a robust system. confidential approach at all times. risk assessment is essential. • Child Contact Centres are not governed by • Child Contact Centres are housed in a • Child Contact Centres require details of any court rulings including court orders, but range of different settings from freely any court order to be provided at the where an order is in place for users of the provided facilities (often churches) to referral stage to ensure that contact can service, contact will be arranged in such as rented accommodations. There are 15 be organised in such a way as to not way as to comply with the order. main centres in Northern Ireland with unwittingly facilitate the contravention facilities provided in a total of 22 locations • Child Contact Centres are not obliged to, of any such order and also to ensure the throughout Northern Ireland. and will not accept referrals, whether details contained within the order are ordered or not, where such referrals do understood by clients. As the welfare of What we do not meet the regulations of the centre, the child is paramount there may be times either by unwillingness of potential users when contact cannot take place even if • Child Contact Centres provide supported to comply with the rules of the centre there is a contact order, however wherever contact as distinct from supervised contact. or where users fail to meet our risk possible and in the child’s best interest we No one-to-one supervision occurs or can be assessment threshold for using the centre. will always attempt to facilitate contact. facilitated. • Child Contact Centres staff or volunteers, in • Child Contact Centres require knowing • Child Contact Centres are child centred line with Lord Justice Gillen’s Family Justice whether an order being issued is a final and staff and volunteers will manage the Review (6:32) are not required to provide or full order. Centres will not accept environment to ensure no distress or risk evidence in court or to report on contact final orders unless specifically agreed in is presented to children or other users of sessions, other than to provide dates advance with the individual centre and the service including terminating contact and times of attendance. This ensures where a maximum time limit is provided. sessions that are disruptive. the neutrality and impartiality of staff Individual Centres can reject final orders • Child Contact Centres may be able to and volunteers and enables retention of where these orders have no set time facilitate observation sessions during volunteer resource. limits for the duration of the contact. normal contact hours within the contact Contact Centres are not facilities to be • Child Contact Centres are not providers of centre setting. This is at the discretion of used to accommodate indefinite or long supervised contact. individual centres and must be requested term contact arrangements as this would in advance by the CCO carrying out the By distinction, supported contact is suitable ultimately reduce the availability of the observation, providing details of the clients where no potential significant risk exists to service to a wider range of families. attending. Failure to do so will result the child, other users of the centre or staff/ Journal of the LSNI 13 Winter 2019/Spring 2020
• Child Contact Centres require all potential of the centre is no longer required thus internally to ensure suitability for users to attend a pre-visit assessment at minimising the potential for waiting lists. ongoing contact. which the rules and conditions for use All changes to contact must be negotiated • Families being re-referred require of the centre will be outlined and the through the referrer. submission of an updated referral suitability for contact to occur in the centre NB form, which will be assessed as to the to be assessed. • In line with Lord Justice Gillen’s suitability of returning to the centre. • Child Contact Centres require all users of recommendation, use of the centre is the service to continue to comply with a short term measure only, and use of the rules and behaviours of the centre as the centre will be periodically reviewed agreed at the pre-visit meeting otherwise use of the centre will be suspended or terminated.
• Child Contact Centres require being informed of any changes to agreements/ orders as contact progresses, including being advised by solicitors when use 14 Journal of the LSNI Winter 2019/Spring 2020
NORTHERN IRELAND NETWORK OF CHILD CONTACT CENTRES
Armagh Child Contact Centre Ballymena Area Children’s Ballynahinch Child Contact Centre Carrickfergus Child Contact Centre Central Belfast Child First Presbyterian Lecture Hall, Contact Service c/o Ballynahinch Baptist Church, 30-34 Irish Quarter West, Contact Centre College Street, Armagh, 24 Lisburn Road, Ballynahinch, Carrickfergus, BT38 8AT Small Wonders 2 Ballymena Child Contact Centre BT61 9BT BT24 8BL 17 Morpeth Street High Kirk Presbyterian Hall Thursday 3pm - 6.30pm Belfast Thomas Street, Ballymena Contact sessions Saturday 10am - 12 noon & Saturday from 10am - 12 noon BT13 3HZ Weekly Saturdays Wednesdays 3pm - 5pm First x 3 Saturdays each month - Larne Child Contact Centre Saturdays 10am - 2pm 10am - 12 noon 10am - 12 noon Coordinator: Naomi Stewart Greenland Community Centre, Mob: 07769 293 446 Coordinator: Margaret Yarr Every Wednesday Antrim Child Contact Centre Old Glenarm Road, Larne. Mob: 07864 709 598 5pm - 6.30pm All Saint’s Parish Hall [email protected] Weekly Saturday [email protected] Railway Street, Antrim Coordinator – Pauline Muldoon 10am - 12 noon www.centralbelfastccc.co.uk Mob: 07914 959 377 Fortnightly Saturday Coordinator: Shelly McCord [email protected] 11am - 1pm Mob: 07853 938 881 www.armaghchildcontactcentre.org Coordinator – Bill Sheridan [email protected] Mob: 07849 498 494 www.carrickccc.co.uk [email protected] www.baccs.org.uk
Cloona Child Contact Centre Coleraine Child Contact Centres Craigavon Child Contact Centre Fermanagh Child Contact Centre Foyle Child Contact Centres 124 Stewartstown Road The House, Moylinn House, Arc Healthy Living Centre, 12-14 The Diamond, L’Derry, Belfast, Abbey Street, 21 Legahory Centre, 60 Castle Street, BT48 6HW BT11 9JQ Coleraine, Craigavon, Irvinestown, Thursday 3pm - 6pm & BT52 1NE BT65 5BE Co.Fermanagh Saturday 10am - 12 noon Saturday 10am - 12 noon BT94 1EE Saturday 10am - 12 noon and + 12.15pm - 2.15pm Wednesday 7pm - 8.30pm Coordinator: Tina Gregory Tuesday 3.30pm - 5.30pm Mob: 07887 391 607 Saturday 10am - 12 noon Wednesday 5.30pm - 7.30 pm Limavady [email protected] Ballycastle Saturday 10am - 1pm. Dry Arch Children’s Centre, Minor Hall Presbyterian Church, Coordinator: Linda Lyness 47b Catherine Street, Castle Street, Tel: 028 3832 7337 Coordinator: Kate Heaver Limavady, BT49 9DA Ballycastle, [email protected] Tel: 028 6862 8741 Wednesday 4pm - 6pm BT54 6AS Mob: 07849 366 092 [email protected] Strabane Saturday 10am - 12noon Barnados Family Centre, www.archlc.com Melmount Road, Coordinator: Sabrina Scullion Strabane, BT82 9BT Mob: 07899 792 948 Colerainechildcontactcentre@ Monday 2pm - 4pm protonmail.com Coordinator: Liz McCorkell Mob: 07841 072 907 [email protected] www.foylechildcontactcentre.org
Knock Child Contact Centre Mid Ulster Child Contact Centres Newry Child Contact Centre Newtownards and Bangor Child Omagh Child Contact Centre c/o Knock Presbyterian Church, Cookstown & Magherafelt, Newry Family Resource Centre, Contact Centres Early Years Centre, 53 Kings Road, Gortalowry House, 94 Church Street, Lisdrum House, Chequer Hill Old General Hospital, Newtownards Belfast, Cookstown, BT80 8HX Newry, BT35 6DY Woodside Avenue, BT5 6JH Strean Presbyterian, Omagh, Saturdays 11am - 1pm Wednesdays 5.30pm - 7.30pm West St. Newtownards BT79 7BP Saturday 10am - 12 noon Wednesday 6pm - 7.30pm Saturdays 10am - 12noon BT23 4EN Wednesday 3pm - 7pm Wednesday 5.30pm - 7pm (two sessions – Wednesday) Magherafelt Coordinator: Fiona Burns Saturday 10am - 12 noon Saturday 10am - 12.30pm Adult Centre, 55 Hospital Road Tel: 028 3026 0668 Bangor Two sessions available on Saturday. Coordinator: Gemma Bird Magherafelt, BT45 5EG [email protected] Mob: 07847 733 699 1st Bangor Presbyterian Church, Coordinator: Roisin McElholm [email protected] Main Street, Saturdays 10am - 12 noon Newtownbreda Child Contact Centre Tel: 028 8225 1135 Bangor Mob: 07936 530 849 www.kabchildcontact.org Coordinator: Vanessa Haddon The Ark, Newtownbreda Baptist Church BT20 4AG [email protected] Tel: 028 8676 7777 43 Newtownbreda Rd Mob: 07518 303 514 Belfast, BT8 7BQ Thursday 4pm - 6pm [email protected] Thursdays 5pm – 7pm Coordinator: Maryanne Doherty Mob: 07540 143 700 www.muccc.org.uk Coordinator: Louise Mackin [email protected] Mob: 07851 060 499 [email protected] www.kabchildcontact.org
16 Journal of the LSNI Winter 2019/Spring 2020
The case arose following a significant number Article 10 ECHR , now subsumed in the Human of complaints made to the Commissioner Rights Act 1998, provides: concerning Ms Bunting’s alleged conduct, THE BOUNDS including comments about the Islamic faith, “Everyone has the right to freedom of and the councillor’s associations with far expression. This right shall include freedom OF PROTECTED right leaders. The Council’s Chief Executive to hold opinions and to receive and impart was one of those lodging a complaint which information and ideas without interference by SPEECH related to the filming of a Britain First leader, public authority and regardless of frontiers”. Jayda Fransen, seated in the Lord Mayor’s chair in the Council Chamber wearing The right to freedom of expression is not ceremonial robes provided for councillors absolute and can be restricted or limited whilst commenting upon active legal as “prescribed by law and necessary in a proceedings which it was claimed Ms Bunting democratic society for the protection of the In this article, Tom Campbell, a partner in had facilitated. reputation or rights of others.” The Code Campbell Stafford Solicitors Belfast and a local stipulates inter alia that councillors should Councillor, reviews the decision of the Northern In further complaints made it was alleged show respect and consideration for others, Ireland High Court in the case of In re Jolene that Ms Bunting had been pictured standing must not conduct themselves in a manner Bunting [2019] NIQB 36. alongside Ms Fransen outside an Islamic which could reasonably be regarded as Centre in which abusive remarks were made bringing their position as a councillor, or their The limits of what is permissible under the about “Ghetto mosques”, which she had council, into disrepute and that they should be “enhanced” right to freedom of expression for failed to disassociate herself from. There were aware of the council’s responsibilities under public representatives have been the subject of complaints about Ms Bunting’s reference to equality legislation. discussion in the High Court in a case involving Muslims as “problematic sections of society”. a controversial former Belfast City Councillor, The Court reviewed the relevant case law on Jolene Bunting. It was claimed in a newspaper article that the application of Article 10 in the political Ms Bunting was “happy to stand over claims sphere and quoted with approval the remarks The Local Government Commissioner for that “all Muslims” are obliged to “wage of Hickinbottom J in Heesom v Public Services Standards’ office had concluded in an interim war” on the Christian population of the UK Ombudsman for Wales [2014] EWHC 1504 report that there was prima facie evidence that and Europe.’” Objection was also taken to (Admin): Ms Bunting had breached the Code of Conduct her social media comments including a post for Councillors (“the Code”) and that this justified depicting a cartoon character dressed in an “…. in the political context, a degree of suspending the councillor pending the outcome Irish Tricolour and wearing a hat with the the immoderate, offensive, shocking, of an ongoing investigation into complaints caption “Please be patient I have Famine”, disturbing, exaggerated, provocative, made against her. Ms Bunting appealed against comments which may have ultimately led to polemical, colourful, emotive, non-rational the interim determination and sanction. her undoing. and aggressive (comment), that would Journal of the LSNI 17 Winter 2019/Spring 2020
not be acceptable outside that context, “The major exception relates to the meme report had dealt with the matter of the is tolerated… Politicians have enhanced (about the Irish Famine), which was made applicant’s Convention rights” and said that protection as to what they say in the political available on social media. While the content it was unpersuaded that the seriousness of arena…….because of the importance of of it may be interpreted as racist and sectarian the myriad of other complaints merited a freedom of expression in the political arena, and it might reasonably be viewed as being conclusion such as to cause the applicant to any interference with that right (either of aimed negatively against a section of the lose the protection she enjoyed in respect politicians or in criticism of them) calls for the community defined by national origin, it is of political speech. The Judge said that closest scrutiny by the court …” not easy to view the meme as a coherent “while others may be revolted by what the contribution to national or local public debate. applicant has said and done in respect of The Court was critical of the Commissioner’s Notably, the reference to the famine found these incidents, the Court reminds itself of the approach. The Judge said that the subject within it appears to be directed at past history width of the ability of an elected councillor to matter of “the bulk of the complaints” against rather than any form of contemporaneous engage in behaviour which shocks or annoys Ms Bunting which had been determined comment, though the court acknowledges that or appears dangerous or irresponsible.” against her were “within the sphere of the overall effect, nonetheless, is misguided enhanced protection” and that her suspension and offensive. However, the Judge concluded that an interim was “prima facie an interference with the sanction was proportionate and that the terms of Article 10 as it had immediate There is force in the view, therefore, that the Commissioner had been anxious to balance the political consequences for the ability of the meme, on proper analysis, is simply abusive factors for and against a period of suspension, applicant to serve her constituents and for the and reflective of a warped outlook and a balance which he ultimately considered electors who elected her”. The Court said that mind-set and discloses no true contribution to favoured the suspension which was imposed. It the Commissioner should individually examine political discourse. If this is correct, as the court followed that her appeal was dismissed. complaints and that “it would be a mistake to thinks it is, the meme is not the exercise of the view all of the complaints together as some right to engage in protected political speech In many respects the matters of interest to sort of job lot”. and falls outside the enhanced protection the Court in balancing her rights and how associated with Article 10.” these interacted with the Code’s ethics regime In one significant respect, however, Maguire J were academic and of little consolation to Ms concluded that one complaint fell well outside The Court disagreed “with the broader Bunting. She failed to retain her seat in local the scope of enhanced protection: ways in which the Acting Commissioner’s government elections in May 2019.
Your Legacy Of Hope And Care - a gift in your Will to Northern Ireland Chest Heart & Stroke A gift in your Will to NICHS research that will change For a leaflet or further could not only help your the future for families at risk information on leaving loved ones, but leave a from our biggest killers. a legacy to NICHS, legacy of hope for please call us on: generations to come. The smallest investment 028 9032 0184, or write to NICHS Gifts can lead to the biggest in Wills, 21 Dublin Road, In Northern Ireland almost breakthrough. Belfast, BT2 7HB half of all adult deaths are caused by chest, heart and Please visit our stroke illnesses. NICHS website to see how are working to change this our Medical Research through funding research Programme has and caring for those who already supported are affected by devastating groundbreaking health conditions every day. projects and is committed to many A gift to us in your Will could more over the coming be invested in critical local years. www.nichs.org.uk
Charity Reg No. NIC103593 18 Journal of the LSNI Winter 2019/Spring 2020
Personal litigants in the family courts – what can be done to ease the process?
law, but the highest number of unrepresented centred design process that involves working litigants within the study came within family with an extended group of stakeholders proceedings. In these cases the research found – including solicitors, barristers, personal that unrepresented parties did not know litigants, court staff, representatives from how to navigate the court system—often to Women’s Aid, the NSPCC, social services, family their frustration and the frustration of those counsellors as well as those with experience familiar with it. Solicitors and barristers in of technical legal innovation and supporting particular found themselves engaging with those with mental health problems. personal litigants on the opposing side who had no concept of family law, court process or This pioneering design process will be the potential to co-operate to reach agreed supported through a collaboration with settlements. the Family Justice Innovation Lab in British In this article Professor Gráinne McKeever Columbia, Canada, who will act as consultants of Ulster University reflects on an initiative Researchers heard repeated pleas from and mentors throughout the development aimed at assisting all those involved in the lawyers that if litigants were not going to be of the materials. The group itself will decide family courts where one of the parties is not represented, they should come to court better what materials should be developed and work legally represented. informed of their litigation responsibilities. The with the research team to create and test a absence of any such information or support prototype of these materials, which will then It is common for those who work within – beyond legal advice – to assist litigants to be provided to litigants in family proceedings. the court system to see personal litigants as participate more effectively and to ease the problematic. The nature and extent of such consequential burdens placed on others within The research team will interview the problems have been explored by academics the court system was seen as problematic: for unrepresented litigants who have been at Ulster University’s Law School, through a the unrepresented party, for the represented given access to the materials to assess their two-year research study identifying the impact party and their representatives on the other effectiveness in enabling participation. In of litigating in person, both on the litigant and side, for the judiciary and for court staff. While addition, the researchers will re-analyse the the court system. these court actors felt that extending legal aid existing data to develop a check list for legal would help, there was agreement that there participation. This will enable the definition The research, led by Professor Gráinne would still be individuals who would litigate and measurement of the different forms of McKeever in partnership with the Northern in person. legal participation, through observation of Ireland Human Rights Commission, found a court hearings by the researchers. The check- lack of support for personal litigants which The development of support materials for list is intended to be a future research tool created a series of knock-on effects that not personal litigants in family proceedings is that can assist in determining the extent to only exacerbated the litigation process but targeted at easing the litigation journey for which the state is able to meet its obligations carried over into the personal lives of the unrepresented parties, with the potential under Article 6 ECHR that guarantee effective litigants and those legal and court personnel to reduce the impact on other court users. participation. Further details can be found on involved in these cases. The research team will implement a human- the research website at www.ulster.ac.uk/ litigantsinperson. These difficulties added to a wider set of system problems that indicate how much the In addition, in February 2020 the Northern court system already struggles, particularly in Ireland Human Rights Commission and the dealing with disputes between parents about Department of Justice, through its Litigant contact with their children. Where personal in Person Reference Group, will be running litigants and lawyers have common cause a workshop for solicitors, barristers and is in wanting to see better outcomes for other legal advisers and court service staff families. In order to help address this common on dealing with distressed litigants. This is a cause, the Nuffield Foundation is funding the bespoke workshop which is being held at Law development of support materials for litigants Society House run from the Access to Justice in family proceedings as they navigate their Foundation led by two academics who have way through a legal system that often appears extensive NHS clinical experience, that has confusing, complex and byzantine. been running successfully in Britain over the last number of years, in direct response to The research reported in Litigants in person increased numbers of personal litigants within in Northern Ireland covered civil and family the court system. Journal of the LSNI 19 Winter 2019/Spring 2020
repealed for anyone over the age of 16 (it to a Review Tribunal comprising a legal Mental Capacity will remain in force for persons aged 16 or chair, a medical member and a person with Act (NI) 2016: younger). experience in health and social care. Partial It has been agreed that there should be a The existing Mental Health Review Tribunal, phased commencement of the Act. The first which reviews the cases of patients who commencement phase came into operation in two stages - are compulsorily detained or are subject research provisions commenced on 1 October to guardianship under the Mental Health from 2 December 2019 and provisions in relation to deprivation (Northern Ireland) Order 1986, is renamed the of liberty (DoL), and money and valuables of Review Tribunal. 2019 persons in residential care and nursing homes commenced on 2 December 2019. These The Review Tribunal will continue to deal The Bamford Review of Mental Health and latter provisions are contained in Part 2 of with applications under the 1986 Order but its Learning Disability, which concluded in the Act. The Mental Health (Northern Ireland) jurisdiction now extends to hearing appeals 2007, called for the development of a single Order 1986 will remain in force until the 2016 under the 2016 Act. legislative framework for the reform of the Act is fully commenced. Mental Health (Northern Ireland) Order 1986 A person deprived of their liberty has the and the introduction of new mental capacity The definition of deprivation of liberty right to appeal their detention to the Review legislation in Northern Ireland. widened significantly in 2014 on foot of Tribunal if they have the capacity to do so. the decision of the UK Supreme Court in If the detained person lacks capacity in this The Mental Capacity Act (NI) 2016 was passed Cheshire West. In that case, the court held regard, their nominated person can apply to by the Northern Ireland Assembly in May that a person is deprived of his or her liberty the Tribunal on their behalf. 2016. It is unique within the UK in combining if the State is involved in the deprivation of mental health and capacity law in one piece liberty and the person is under continuous If the detained person lacks the capacity to of legislation. When fully commenced, it will supervision and control and not free to leave. understand that they have a right of appeal fuse together mental capacity and mental The fact that the detention has a benevolent to the Tribunal, their case is automatically health law for those aged 16 years and over, or beneficial purpose or that the person does referred to the Attorney General who can then as recommended by the Bamford Review. not seek to leave the place where they are ask the Tribunal to consider it. detained is irrelevant. The Mental Capacity Act addresses the When the Tribunal has considered the case it capacity of those aged 16 years or over to The partial commencement of the 2016 may choose to end the detention or take no make decisions about their health, welfare Act provides a specific statutory framework further action. or finances and the safeguards that must be for dealing with DoLs. Under the Act, each put in place where they lack the capacity to deprivation of liberty application is considered The Tribunal also considers applications about do so. In broad terms, the Act provides that a by a Trust Panel comprising three members appointing or removing a nominated person. person is assumed to have decision-making appointed by the Health and Social Care Trust capacity unless it is established otherwise. (one medical practitioner, one approved The table overleaf outlines the various appeal When the Act is fully commenced, the Mental social worker and one other suitably qualified routes to the Review Tribunal under the 2016 Health (Northern Ireland) Order 1986 will be person) with a mechanism for onward appeal Act: 20 Journal of the LSNI Winter 2019/Spring 2020
Relevant statutory Subject Relevant time period provision (Mental Capacity Act (Northern Ireland) 2016
Section 45 Authorisation of Deprivation of Within the period of six months beginning with the date the Liberty authorisation is granted
Section 45 Interim Authorisation of Within the period of 28 days beginning with the date the interim Deprivation of Liberty authorisation is granted
Section 45 Authorisation of Short Term Within the period of 28 days beginning with the date of admission Detention in hospital
Section 45 Extension of a Trust Panel During the period beginning with the date when the period of the authorisation of DoL authorisation is extended and ending with the end of the period for which the authorisation is extended
Section 47 Referral by Attorney General, At any time a DoL authorisation is in force Department or Master (Care and Protection)
Section 48 Automatic Referral by Health and Where a DoL authorisation is extended and the Tribunal has not Social Care Trust considered the case during the period of one year ending with the extension date (if the person deprived of their liberty is under 18) or during the period of two years (if the person is over 18) ending with the extension date
Section 80 Application to Tribunal for A qualifying person can apply for appointment of a nominated appointment of nominated person person subject to certain conditions and if the qualifying person reasonably believes that the person lacks capacity to make decisions about who should be his or her nominated person
Section 83 Application for revocation If the Tribunal has appointed a nominated person for someone of Tribunal’s appointment of who lacks capacity to decide who should be his/her nominated nominated person person and that person regains capacity, they can apply to the Tribunal for revocation of the appointment Journal of the LSNI 21 Winter 2019/Spring 2020
New pensions guidance
A recently published report provides Guidance for how Pensions should be treated in divorce. The Guide to the Treatment of Pensions on Divorce, released in July 2019, is prepared by The Pension Advisory Group (PAG) which is a multidisciplinary group of professionals in England & Wales who specialise in dealing with pensions on divorce. pensions specialist may be necessary to guidance notes that negligence cases against ensure that fair and appropriate decisions can practitioners in this area are overwhelmingly The stated aim of the Guide is to improve be made about the pension component of the in cases involving “ill-considered” offsetting understanding of the complex area of law overall financial settlement on divorce. agreements. relating to pensions on divorce and enabling more consistent and fairer outcomes. Although The Guide also draws attention to potential This Guidance highlights the complexity of it is directed towards practice in England & pitfalls that may be encountered in these pensions and their treatment in divorce and Wales, this report will be equally useful to cases and provides a good practice guide is likely to be an essential tool for Ancillary those dealing with Ancillary Relief cases in for legal practitioners and experts involved Relief practitioners. It can be downloaded from Northern Ireland. in these cases. It indicates that best practice https://www.nuffieldfoundation.org/project/ should involve comprehensively gathering pensions-on-divorce-interdisciplinary-working- The Guide aims to help lawyers and other information on all client’s pensions, including group/ practitioners dealing with pensions on divorce State Pensions. It also explores cases involving to understand issues relating to pensions in equalisation of income and equalisation of divorce cases and help with decisions about capital approaches as well as the different Claire Edgar, Francis Hanna & Co, when the instruction of an actuary or other treatment in needs and sharing cases. The Solicitors, Belfast
Society Chief Executive retires after eleven years in post
Working with Presidents and the Council of standard in the Society, as well as leading the Society, Alan enthusiastically led the initiatives in relation to regulation of the development and delivery of an engagement profession. strategy with members and key stakeholders, At a Society function held to mark his including members of the Northern Ireland retirement, Alan said: Assembly. This included hosting the Committee for Justice at Law Society House. “It has been my privilege to work together Overall, he ensured the Society was an with Presidents, Council members, authoritative voice on the administration of colleagues and interested parties over the justice throughout his tenure and in particular last eleven years. I would like to thank all following the devolution of justice in 2010. those who supported me during that period to achieve our objectives.” Alan oversaw a review of the professional indemnity insurance arrangements which Commenting on his retirement, then Society brought about a significant reduction in President, Suzanne Rice said: costs for the profession. He also led a review of the governance of the Society, which “I want to thank Alan for his commitment In September 2019, after eleven years in proposed a range of reforms designed to and work over the past eleven years. That post, Alan Hunter retired as Registrar of ensure the operational framework of the period has seen enormous change in the Solicitors, Secretary and Chief Executive organisation was fit for purpose in a changing Society as an organisation and, together of the Society. Prior to his appointment in environment. with Council, Alan has led the promotion, October 2007, Alan had worked in private representation and regulation of the solicitor practice and held a series of key positions During his time in office, Alan conducted a profession with distinction.” in the Senior Civil Service, including Director number of organisational reviews to align The Society is most grateful to Alan for his of Legal Aid, Director of Judicial Services resources with the strategic objectives and contribution and commitment and wishes and Chief Executive of the Northern Ireland statutory responsibilities of the Society. He him well for the future. Judicial Appointments Commission. oversaw the introduction of the ISO quality 22 Journal of the LSNI Winter 2019/Spring 2020
Belfast Magistrates’ Court – Revised Bail Protocol
Criminal Practitioners should note that a Revised Protocol for Bail Applications in the Belfast Magistrates’ Court has been issued.
Bail Application
Magistrate Court bail applications (other than first remand bail applications) will now be dealt with in accordance with the procedures set out below. These provisions seek to balance the principle that defendants should have their bail applications heard at the earliest opportunity with the requirement that the police have sufficient time to obtain all relevant information.
1. The Defence complete a Bring Forward Application and email it to PSNI Court liaison officers, PPS and Court Service before noon on the day prior to the Bring Bail Variation 3. The PSNI officer in charge of the case, or Forward Application. All three must be a suitably briefed Officer should advise copied into the email. The Defence complete the Bail Variation the PPS of his/her objections and should Application Form and email it to PSNI Court attend the hearing of the application. 2. PSNI Court liaison officers will make liaison. PSNI Court liaison Officers will make relevant enquiries and inform the defence relevant enquires. Compassionate Bail and PPS as to whether or not there are
objections. Where there is no objection to variation The defence complete and serve Form 96A on PPS, Police and Court Service. Police 3. A t the Bring Forward Application PPS will 1. PSNI Court liaison serve the completed make relevant enquiries. In liaison with the notify the Court of a suggested hearing application on the Court before 4pm on the defence and PPS, Court Service either lay the date which will normally be the next day prior to the application being made. Application before the Judge in Chambers or working day. However, in some instances list the application for hearing. it will be appropriate for the District Judge 2. C ourt staff will place the application before to list the case for the next appropriate the Judge in Chambers before 10.30hrs the When an application is made out of hours, the day on videolink, for example in cases following day for his/her consideration. defence will, in addition to the above, contact where the Bring Forward Application was the Court Service using the out of hours not emailed before noon on the date 3. C ourt staff will result and confirm the Court telephone number. Tel: 07795 311319. the email was sent, or the investigating result as soon as practical or by 16:00hrs police are officers attached to non uniform following judicial approval, and notify the Note. In all the above applications, Forms sections of police such as CID, PPU and Applicant’s Solicitor, PSNI Court liaison and must be completed fully and the Court folder MIT. the PPS. number (found on the charge sheet) should be provided, if available. 4. The PSNI officer in charge of the case, or 4. If a hearing is directed by the Judge, the a suitably briefed Officer should advise parties will be notified by Court Service of the PPS of his/her views or objections the date, time and venue. PSNI Court liaison email: and should attend the hearing of the [email protected] application. Where there is an objection to variation
PPS email: [email protected] Note. The Bring Forward procedure is not 1. PSNI Court liaison will notify Court Service, required where the defence notify the the defence and PPS of the objection. Court Service email: court and prosecution in open court on a [email protected] date when the case is listed. In that case 2. The application will be listed by Court the court will adjourn (on the basis of the Service for hearing before the Court, and PSNI Court liaison Officers (CPT): principles set out in paragraph 3) to enable Court Service will notify PSNI Court liaison, Tel 07815 410089 or 07500 895963. police to make enquiries. PPS and the Defence of the date of listing. Journal of the LSNI 23 Winter 2019/Spring 2020
with it then, such a proposition, must certainly This reinstatement option is offered to the be wrong.” However, those involved in policyholder, subject to an undertaking that Principle of property claims appreciate that the calculation of an indemnity is not an exact science. 1. reinstatement commences and proceeds Indemnity without unreasonable delay; and that Typically, a property loss will be measured A review of the principle of indemnity arising as the cost of identical reinstatement less 2. the cost of reinstatement has actually from the judgment in Sartex Quilts & Textiles consideration for any resulting betterment. been incurred. Ltd (“Sartex”) v Endurance Corporation This measure is acknowledged as the primary Capital Ltd (“Endurance”) (2019). standard by which compensation is to be It is accepted that, if a property is restored given. When an indemnity has been agreed, to a condition similar to that which existed The concept of an equitable property the analogy of common law is applied that prior to the damage, then the actual cost settlement arising from damage is one that when paid, the use of the settlement monies of reinstatement in full is the appropriate will provide a financial result ensuring the becomes solely a matter for the recipient. indemnity without any further deduction. entity suffering damage will be reimbursed, in Otherwise, the policy will revert to a payment equal measure, to the value of what has been Whilst within the insurance contract there is which reflects the standard measurement; lost. This is the principle of indemnity. no express direction around the concept of the indemnity payable had the reinstatement betterment, it has been accepted by the courts option not applied. The principle can be applied to compensation that such a financial contribution by an insured under contract or statute and actions against is a well-established practice in measuring It is also accepted2 that a settlement on wrongdoers in tort. It is well established in compensation. However, this position is less a reinstatement indemnity leaves it open cover provided under property insurance likely to be accepted in an action in tort where for an insured to take advantage of the policies. there could be resistance that a wrongdoer consequences of the damage in making should expect an injured party to be bound at significant changes to what was already there, In insurance, the principle had been set out all to any financial contribution. albeit within the financial parameters of the in Castellain v Preston1 establishing that “the agreed settlement. insurance policy is a contract of indemnity To alleviate any financial loss caused by and of indemnity only in which the insured betterment, it is now common for insurance The courts recognise that on occasions there shall be fully indemnified, but shall never policies to expressly provide an option will be circumstances when reinstatement be more than fully indemnified and if ever a enabling the insured to reinstate the property may not be an appropriate measure of proposition is put forward which is at variance without any such reduction. indemnity, but rather an alternative loss measurement, such as that based on an assessment of the overall value of the asset before and after damage. This is known as the diminution in market value (DMV).
However, it is important to recognise that such a method of assessment has to fully embrace the concept of value by identifying the specific worth of the asset to the insured. Particularly in relation to business properties, such valuations should not be a mere question of the “bricks and mortar” value but include an additional factor within the assessment for the future profit which would have been achieved from the loss of the activities carried out in the building. The valuation of such a property therefore, as a going concern, can often produce a measurement up to or indeed in excess of the total cost of the property replacement
In Leppard v Excess3 an unoccupied cottage that had been purchased from a family member for £1,500 with a view to a later sale, was destroyed by fire. It was determined
1 Castellain v Preston [1883] 2 Tonkin v UK Insurance Ltd [2006] 3 Leppard v Excess Insurance Co Ltd [1979] 24 Journal of the LSNI Winter 2019/Spring 2020
that the actual financial loss would not be DMV could be regarded as an appropriate basis Sartex did not accept the measurement of based on the cost of the reinstatement of to determine the loss but not when beneficial indemnity offered by Endurance maintaining the cottage established at £8,694, but the occupation was enjoyed. that the standard indemnity should still be loss of the actual market value at the time of based on the cost of reinstatement. They The Sartex action related to a fire in May 2011 damage. That value was established at £3,000 submitted that the question of what was at the plaintiff’s Crossfield Works in Rochdale recognising that the owner’s declared intent intended after the loss was only relevant if, which caused serious damage to the factory was to sell rather than reinstate and occupy. at the time of damage, there was a clear premises severely damaging the building and intention to sell the property or to cease Alternatively, in Reynolds v Phoenix4 the destroying all plant therein. trading. However, this was not in the opinion insured had purchased an old commercial Sartex was formed in 1979 by a partnership of Sartex, one such case. building complex for £16,000 for manufacturing home textiles. In 1984, the manufacturing use. The property, insured for partnership purchased the Crossfield Works Endurance sought to rely on the Court of a total sum of £628,000, was subsequently 5 to where production was transferred, the Appeal decision in Great Lakes Reinsurance seriously damaged, but the insurer only business then becoming incorporated in 1992. arguing that in that judgement there was a offered a market value settlement until By a subsequent agreement, the partners requirement for a genuine intention on the reinstatement was carried out. The insured arranged that Sartex could use the Crossfield part of the insured to reinstate, in the absence contended that as there was a genuine factory rent-free but taking responsibility of which, a market value settlement was intention to reinstate, in such circumstance, for the insurance and maintenance of the appropriate. the indemnity must be based on the cost of property. However, the court disagreed with Endurance reinstatement irrespective as to the work on their interpretation noting that the Great being undertaken. As the business developed, larger premises were purchased to which production was Lakes judgement confirmed that “where The court found in the insureds favour moved leaving the Crossfield Works mainly as the insured is the owner of the property the commenting on the general principles of a storage facility. However, the business then indemnity is to be assessed by reference to indemnity and the question of enrichment explored the feasibility of a new production the value of the property to the insured at or impoverishment. “This question cannot line which was established at Crossfield in the time of the peril. In many, perhaps most, depend, in my view, on an automatic or 2010. At this time insurance cover was placed cases of damage or destruction the insured’s inevitable assumption that market value is with Endurance in relation to all the property loss is the cost of reinstatement although the appropriate measure of the loss. Indeed, including Loss of Profit for a 12-month period. that may not be the case if, for instance, the in many, perhaps most cases, market value insured was trying to sell the property at the seems singularly inept as its choice subsumes Production ceased as a result of the fire time of the loss.” the proposition that the insured can be forced and in the years following, Sartex explored to go into the market (if there is one) and various options in relation to recovery plans It was noted by the court that Sartex had buy a replacement. To force an owner who is for the factory within their business including not immediately taken up the reinstatement not a property dealer to accept market value reinstating by way of the acquisition of a option available under their policy. Endurance if he has no desire to go to market seems textile manufacturing business in Pakistan. had argued that, as reinstatement had a conclusion to which one should not easily However, Sartex presented to the court that not taken place, Sartex had failed that test arrive. The question of the proper measure of none of these options had been developed of commitment. The court disagreed and indemnity thus becomes a matter of fact and into a feasible business proposition. accepted the evidence of Sartex that whilst some considerable time had passed since degree to be decided on the circumstances of Endurance had initially agreed to settle the the date of the fire without reinstatement each case.” claim on the terms of the reinstatement taking place, this was entirely due to the option applicable to the policy but within the Furthermore, in Reynolds, the insurer argued fact that the business had spent that time express terms this option had subsequently that even if there was a genuine intention exploring alternative options none of which been lost to Sartex. to reinstate with the insurance monies (but had been identified as a viable option against not the owners’ money) such an intention The insurer therefore indicated in late 2012 reinstatement in similar form. In hearing the would be unreasonable. This contention was that, as Sartex had not demonstrated a evidence, the court concluded that it was rejected, the court indicating satisfaction genuine intention to reinstate, the indemnity appropriate to award Sartex an indemnity on “that the plaintiffs do have the genuine available would be a measurement based on the reinstatement basis. intention to reinstate if given the insurance DMV. Endurance duly made such a payment So, what can be taken from the Sartex case? monies; that this is not a mere eccentricity under the policy in the sum of £2,141,527 It is clear that in arriving at the decision, but arises from the fact, as I find, that they which fell short of the full reinstatement the court has followed the established will not be properly indemnified unless they indemnity value measured at £3,492,041. are given the means to reinstate the building conventions in regard to indemnity This proposed reinstatement value did not substantially as it was before the fire.” compensation for property claims. That represent the total cost of reinstating the will be fundamentally a recognition that Therefore, the direction from the already property, due to a significant level of under whilst each and every case will be judged decided cases was that an insured’s prevailing insurance established after the damage. on the prevailing facts, the likelihood is interest and defined intentions at the time Indeed, this underinsurance fact lead to that compensation will be measured on the of the damage were important factors in a separate action by Sartex against their determining the value of the loss. Certainly, if insurance intermediary which was only settled there was an intention to sell a property which in September 2016 in the overall sum of 4 Reynolds & Anderson v Phoenix Ass Co & Others (1978) had never been in beneficial occupation, then £1,000,000. 5 Great Lakes Reinsurance (UK) v Western Trading Ltd (2016) Journal of the LSNI 25 Winter 2019/Spring 2020
standard measurement of reinstatement less fully provided for the beneficial value of the be tested by the vagaries of a negotiating betterment. building. path taken between the parties in the interpretation of the facts and towards Any reliance on an alternative measurement The danger for compensators is that a view seeking a particular settlement outcome. will only be supported if it displays a is taken that DMV is the automatic default proposition which is deemed to better reflect However, there is every reason to take measurement in circumstances where the actual financial loss incurred given the comfort that, for their part, the courts will reinstatement has not taken place or where extent of any beneficial interest enjoyed by continue to maintain a consistent view in they opine that there is no clear genuine the injured party at the time of the loss. relation to those key principles in achieving intention so to do. a fair and reasonable indemnity. That is to Certainly, it did seem that Sartex enjoyed That is not the position and there is a strong ensure that there is a proper recognition as to a beneficial interest as a going concern case for adopting a stance that DMV should the absolute value of the damaged property operating from the damaged premises at only be recognised as appropriate when there and that the injured party is restored to the the time of the fire, with no intent in the has been a clear and unequivocal declaration same beneficial position as that which had foreseeable future for that position to change. of intent on the part of the owners that existed at the time of damage. No better or Indeed, it is noted that in 2013, Endurance reinstatement will not be carried out. no worse. agreed a settlement in relation to the To that extent, the Sartex decision reaffirms business interruption cover which extended the position of indemnity based on to provide an indemnity for the gross profit Brian Kelly ACII FCILA FUEDI ELAE FIFAA reinstatement to be awarded in circumstances lost by the business during the period insured Insurance & Commercial Claims Consultant. where reinstatement has been carried out i.e. 12 months immediately following the Brian Kelly Consulting Limited or an intention to reinstate is reasonably fire. It would have been expected that such Number One Lanyon Quay justified and is not a mere eccentricity on the a payment would have been resisted if the Belfast BT1 3LG part of the owners. insurer was not satisfied that production 07402 260626 would not have continued throughout that The question of the proper measurement [email protected] period, but for the fire. In addition, the fact of indemnity will always remain a matter www.briankellyconsulting.com that a separate payment for loss of profit of fact and degree based on the particular was made by Endurance might infer that circumstances arising. Inevitably, the the insurer’s DMV assessment may not have principles of indemnity will continue to © Brian Kelly Consulting Ltd [2019] 26 Journal of the LSNI Winter 2019/Spring 2020
persons’ was introduced from 21 March cases this will provide a very significant 2012 as a deterrent to perceived SDLT saving for the client. A claim for MDR can SDLT: avoidance. The flat rate applies to any be made where two or more dwellings are Sit Down, purchases by ‘non-natural persons’ of being purchased. Again, availability of this single dwellings valued at over £500,000. relief will not be picked up by HMRC’s SDLT Let’s Talk There are some exemptions to the rules, calculator. but these must be applied to the specifics of each case. Suzanne O’Hara (Senior Tax Consultant, What constitutes chargeable consideration? Moore (NI) LLP) provides an overview of the • T ypically, the chargeable consideration will • The higher rates of SDLT for additional current state of play in relation to Stamp be the actual amount paid by the purchaser dwellings (‘HRAD’) were introduced Duty Land Tax but care must be taken if there are any on 1 April 2016, putting an extra three mortgages attaching to the property as any percentage points onto the standard rates From 1 April 2019, the time limit for assumption of debt will also be deemed to of SDLT for certain residential property submitting SDLT returns has been reduced be chargeable consideration. to 14 days from the effective date of the transactions. Anyone regularly dealing with residential property transactions will testify transaction. One must spare a thought for • Wher e a connected company is acting as a that the rules are complex and can be the all the conveyancing solicitors who are purchaser, the transaction will be deemed applied to a wide variety of transactions, now not only expected to deal with the legal to occur at market value, regardless of the even some quite unexpected scenarios complexities of each individual property actual consideration. transaction but are up against the clock to (much to the surprise and chagrin of the client). calculate and submit the SDLT return within Linked transactions: two weeks of completion (or substantial performance, whichever is sooner). • Firs t Time Buyers’ Relief was introduced • The ‘linked transactions’ provisions must from 22 November 2017 and means that be considered where separate transactions Back in the early days of SDLT, this may not first-time buyers of homes worth between take place between the same purchaser have posed too much of a problem. However, £300,000 and £500,000 will not pay stamp and vendor or persons connected with in today’s SDLT world, the acting solicitor has a duty on the first £300,000, and a rate of them. These are anti-avoidance provisions plethora of rules to decipher. This article seeks 5% between £300,000 and £500,000. As which have been drafted with the to provide a whistle-stop tour of some key tax always, however, the devil is in the detail, intention of covering a wide range of points that conveyancers should bear in mind and the finer points of each case must be scenarios. when completing SDLT returns. examined in order to determine whether the relief will be available. These are but a few of the considerations Classification of property: when dealing with SDLT and it does rather Multiple purchases: raise the question of how HMRC can expect • The classification of the property is more complex cases to be finalised within 14 • Ther e is a quirk in the legislation so that essential in determining the SDLT, and the days. With such a tight turnaround, one can where six or more dwellings are purchased, distinction between residential and non- only suggest that to be forewarned is to be they will not be treated as residential residential is crucial. forearmed – if possible, seek specialist advice property, but instead commercial property, prior to completion. • Wher e the land is commercial or ‘mixed resulting in the lower (commercial) rates applying. Beware - this is often missed on use’, the lower rates of SDLT will be For further information, Suzanne O’Hara can HMRC’s SDLT calculator. applied. be contacted on [email protected] or • A claim for Multiple Dwellings Relief • Ge tting this right can prove very valuable to 028 7035 2171. the client. (‘MDR’) should be considered, as in many
Residential property transactions:
• A ‘super rate’ of 15% for acquisitions of residential property made by ‘non-natural Journal of the LSNI 27 Winter 2019/Spring 2020 ADVERTORIAL Making Tax Digital is forcing firms to review their outdated legal IT systems By Tim Smith, Technical Director at Insight Legal
Year one of Making Tax Digital (MTD) for VAT system to theirs. With years of historical Finally, if you’re unsure about the questions or (the soft landing period) ends this April. Firms data, live matters and finance records, it’s fearful of understanding the responses, seek may be using bridging software, provided by inconceivable to re-enter data manually in advice from a legal IT expert. their IT supplier, to meet electronic VAT filing exchange for successful migration. requirements. Soft landing was only ever a temporary measure. It does not deal with other 5. Ho w can I believe what a software To discuss this topic further or the services we elements of MTD like digital record keeping. company tells me? can offer, please give us a call on 028 9433 Look for third party indicators, like awards 9977, email us at [email protected] or Entering year 2 after April, firms can face a or accreditations to support claims about visit our website; www.insightlegal.co.uk financial penalty if HMRC considers a practice the quality of product and service? has not been making enough of an effort to comply with MTD.
What does this mean for law firms?
Firms operating the oldest systems are most likely at risk of a penalty and may now consider their next steps. Software developers are investing in their current platforms, making them MTD-compliant. A developer would like to migrate all its legacy customers to its current platform, but is that the right decision for a firm?
There may be a gap of many years between IT systems from the same supplier and no commonality between them. A firm is advised to look at the whole of market and not just take the word of its existing supplier.
Firms invited by their supplier to upgrade are advised to;
1. Understand the time needed to plan for a new system The average time from an old system to new is 3-6 months - doing nothing is not an option.
2. What’s really on offer from the existing supplier? Ask for a proposal of what the supplier’s deal is. What are the costs, is any ‘special offer’ time limited and what if you choose not to take up the offer?
3. Discuss within the firm your needs from any new IT software Don’t assume your existing supplier knows what’s best. There’s no point paying for great functionality that won’t be used.
4. Which developers offer a migration path from your existing system? Find out about other suppliers with a good track record of migrating from your current 28 Journal of the LSNI Winter 2019/Spring 2020
the customer will not be making an onward Contractors must also establish whether the Reverse Charge supply of the services) or someone connected reverse charge applies to their purchases of to one. Where the customer is an end user or services; if subcontractors incorrectly charge VAT: Changes to someone connected to one VAT is chargeable VAT to them on a supply, the contractor is not VAT accounting by the supplier at the applicable rate. entitled to recover this VAT in its VAT return. for the building HMRC’s guidance on the new rules (https:// For those businesses whose services were www.gov.uk/guidance/vat-domestic-reverse- subject to the reverse charge from 1 October and construction charge-for-building-and-construction-services) 2019, there may have been a negative cash also includes a list of services which are not flow impact where VAT collected on supplies is industry from subject to the reverse charge. no longer available as working capital. 1 October 2019 Some contracts may have a reverse charge Invoicing and non-reverse charge component. In such circumstances, the entire supply will still be When supplying a service subject to the In this article Eddie Broomfield of GMcG subject to the reverse charge. reverse charge, suppliers must include all the Belfast, sets out how the way in which certain information that is typically included on a businesses which operate in the construction Construction contracts standard VAT invoice but must not charge VAT. industry account for VAT has changed since 1 October 2019. Generally, the customer is now Solicitors need to consider whether Suppliers must also include a statement on the responsible for accounting for VAT due rather amendments are required to construction invoice referring to the reverse charge and the than the supplier. Solicitors need to consider contracts to potentially take account of the amount of VAT to be accounted for under the the impact of the new rules on construction following in relation to the new rules: reverse charge, such as: contracts. • the contract should specify which party is “Reverse charge: customer to pay output VAT Background responsible for accounting for VAT; of £(insert VAT amount) to HMRC.”
From 1 October 2019 HMRC introduced • the supplier may require the customer If the VAT amount cannot be included in the a domestic reverse charge for VAT to the should warrant as to whether the customer statement, the applicable VAT rate must be building and construction industry. The is an ‘end user’ or someone connected included. purpose of the measure is to combat VAT fraud to one under the new rules, and where where businesses in the supply chain charge relevant, its VAT and CIS registration status; Penalties customers VAT and fail to remit this VAT to and HMRC. HMRC will assess for VAT on errors in • a customer may require the contract to accounting for the new reverse charge. Where the reverse charge mechanism applies, stipulate that it is not required to pay VAT to However, HMRC has stated they will apply a a business supplying ‘specified services’ to a the supplier in addition to the contract price. ‘light touch’ for errors arising in the first six VAT registered customer, no longer charges months of the new measures where taxpayers VAT from 1 October 2019. Instead, the What do businesses need to do? try to comply with the legislation and act in requirement to account for VAT shifts to the good faith. customer, who will account for VAT to HMRC Businesses working in the construction via their VAT return. industry must consider how the introduction Summary of the reverse charge impacts upon their VAT HMRC did not provide any transitional period compliance, depending on whether they are Solicitors should consider if amendments are in relation to these new measures and a contractor or subcontractor in a particular required to construction contracts as referred businesses were required to apply the new contract. to above. rules immediately from 1 October 2019. Businesses should ensure that their software Businesses should carefully consider what In what circumstances does the reverse can process the reverse charge, and that their processes they should put in place to ensure charge apply? staff are familiar with the changes that have the correct VAT treatment is applied and taken place and how they will apply to both evidence is held to support a decision to apply The reverse charge applies to ‘specified sales and purchases, as applicable. the reverse charge or to charge VAT. services’ (broadly those which are construction operations for the purposes of the Construction Both contractors and subcontractors need to GMcG Belfast provides VAT consultancy Industry Scheme (CIS)) supplied to VAT consider whether the reverse charge applies services to the construction sector and has registered businesses which are also registered to supplies that they make. This involves experience in assisting businesses and their under CIS. The reverse charge applies to both confirming whether the customer is an end legal advisors with changes in VAT compliance standard-rated and reduced-rated supplies user or someone connected to one; whether legislation. To discuss any aspect of the (it does not apply to zero-rated supplies). the customer is VAT and CIS registered; and new reverse charge, please contact Eddie The reverse charge does not apply where the whether their services are those that are Broomfield of GMcG Belfast on 028 9031 customer is an ‘end-user’ (generally where subject to the reverse charge. 1113 or by email: [email protected] Journal of the LSNI 29 Winter 2019/Spring 2020
Important Member Communication - Accounting systems and records
You will already be aware of the wisdom of hardware or system may be at best difficult, You may be required to demonstrate to the undertaking key health checks for you and at worst impossible; you may find you fail to Society that your system or package is fit for other members of your firm but have you comply with – or are already in breach of - the purpose. ever thought that your firm’s hardware – Society’s Regulations such as the Solicitors’ and software – would benefit likewise from Accounts Regulations 2014. Never mind the What the Society will do is to encourage you to regular key health checks? Have you put in resource you will spend in trying to retrieve take time to consider the wisdom of conducting place contingency plans to cover the failure data or rectify whatever is the problem, you regular and spot checks of the package and of your packages and systems? Do you test will come to the Society’s attention as the systems you have in place in your firm, to your firm’s packages and systems regularly? statutory regulator of solicitors in Northern ensure they are, and remain, fit for purposes. Do you test your backups? Ireland and the Society will conduct such Future proofing is key. investigation and take such steps in the Are you sure? exercise of its regulatory function, protection The Solicitors’ Accounts Regulations 2014 can of the public key, as it considers is required be accessed from the Society’s website at It is inexorable that, with the passage of into your firm. https://www.lawsoc-ni.org/dataeditoruploads/ time, firm’s hardware and software package doc/solicitorsaccountsregs_2014%5b1%5d.pdf and systems age and in fact may become, The Society does not promote any particular or are already, not fit for purpose. By the hardware or software package or system. and an accompanying Guidance Note at time you become aware of any issues with As a solicitor, you must ensure any accounts https://www.lawsoc-ni.org/ your package and systems, it may already system or package used in you firm is fit for dataeditoruploads/doc/Solicitors%20 be too late. Valuable data may be corrupt or the purpose of effecting full and satisfactory Accounts%20Regulations%202014%20 lost; the migration of data from old to new compliance with the Society’s Regulations. Guidance.pdf 30 Journal of the LSNI Winter 2019/Spring 2020
COUNCIL DINNER 2019
Thanks to the Lord Mayor and Belfast City Council, the City Hall was the venue for this year’s Council Dinner. More than 150 guests including members of the judiciary, the legal profession, politicians and members of the Civil Service, the business community and academia attended the Dinner. Suzanne Rice, then Society President, thanked attendees for Barbara Jemphrey, Director of the IPLS; Bernard Brady, Vice Chair of the Bar Council; Fiona Bagnall, their ongoing support of the solicitor Presiding District Judge; David A Lavery CB, Society Chief Executive; John Mulholland, President Law profession and the work of the Law Society of Scotland; Suzanne Rice, then Society President; Simon Davies, President Law Society of Society. England & Wales; Jackie Henry MBE, DeloitteNI; David Ford, former Minister of Justice and David McFarland, Recorder of Belfast and Presiding Judge of the County Court.
David A Lavery CB, Society Chief Executive; John Finucane, then Melanie Rice; Declan Green; John O’Prey; Bronagh McMullan; Sinead Lord Mayor of Belfast and Suzanne Rice, then President of the Polley and Robert Rice. Society.
Eileen Ewing, then Society Senior Vice President; Mark Borland Paul Dougan; Kelly Breen; Reg Rankin and Andrew Kirkpatrick. and Colin Mitchell. Journal of the LSNI 31 Winter 2019/Spring 2020
Suzanne Rice, then Society President and Martin McCallion and Chris Kinney. Leonard Edgar and Alan Reid. Enda Lavery, then Chair of the Belfast Solicitors’ Association.
Donald Eakin; Mr Justice O’Hara; District Judge McNally and District Ann McMahon; Maria McCloskey; Lord Justice McCloskey and Judge King. Catherine Dixon.
Dinner guests in the Banqueting Hall of Belfast City Hall. 32 Journal of the LSNI Winter 2019/Spring 2020
Publication of new book on ‘Bail Law and Practice in Northern Ireland’
Members of the Judiciary and legal profession were in attendance at Law Society House in Belfast for the launch of a new book entitled ‘Bail Law and Practice in Northern Ireland’.
The new book, which is published by the Society, outlines the many powers of the police and the courts to grant bail in Northern Ireland. From l to r: Heather Semple, Society Head of Library and Information Services; Charlene The book examines bail at each stage of the Dempsey; Lord Justice McCloskey; Katie Quinn; Rowan White, Society President and Brigid Napier, criminal process, from bail granted by police Society Junior Vice President. officers on the street to bail granted by the highest courts. Advocate, Charlene Dempsey. It sets out the accessible and practical book - an essential relevant legislation and rules of court and guide for practitioners in this jurisdiction and It also considers the applicable law in relation includes references to both reported and beyond.” to children accused of criminal offences, unreported Northern Ireland cases. as well as bail in the context of extradition The new book is available for purchase and immigration proceedings, and includes Commenting on the new book, Society from the Society at a cost of £30, using practical insights into bail applications and President, Rowan White said: the Order Form enclosed with this edition proceedings. of the magazine or by downloading an “I wish to congratulate Charlene Dempsey, O r d e r F o r m f r o m t h e S o c i e t y ’s w e b s i t e o r The new book has been written by Barrister Katie Quinn BL and the Law Society Library by emailing [email protected] and former academic, Katie Quinn and Solicitor team for producing what is a comprehensive,
New e-book - Criminal Practice And Procedure in The Magistrates’ Court
The Magistrates’ Court deals with the vast majority of those who encounter the criminal justice system whether as defendants or witnesses. The work in the courts of summary jurisdiction has become increasingly complex and practitioners face ever more pressures.
This new e-book addresses all aspects of work in the Magistrates’ Court on a sequential basis, from initial investigation by the police to decision making by the PPS and through CRIMINAL to the court process itself. The book will be an invaluable reference for those starting their careers in the Magistrates’ Court as well as experienced practitioners who need to check PRACTICE AND more obscure points – in short all those involved in the criminal justice system. PROCEDURE IN The text covers up to date issues in relation to PACE, disclosure, hearsay, bad character, THE MAGISTRATES’ special measures, bail, committal hearings, sentencing and ancillary orders and is COURT OF complimented by an associated website and Twitter feed to provide updates to the text and NORTHERN observations on developments in the criminal law as it applies in the Magistrates’ Court. IRELAND The new e-book also covers practical issues like advocacy, the rules of evidence and police interviews and contains case law and evidential points relating to some of the most
J. F. O’Neill, LL.B., Solicitor Advocate, commonly encountered criminal offences. Senior Public Prosecutor (Higher Court Advocate) Anyone wishing to order a copy of the e-book should contact Heather Semple at the Society or email her at [email protected] Journal of the LSNI 33 Winter 2019/Spring 2020
Expert Evidence: Getting it right
Inaugural Conference of the Law Society of Northern Ireland Clinical Negligence Practitioners’ Group (LSNICNPG)
Law Society House in Belfast was the venue for the Inaugural Conference of the Law Society of Northern Ireland Clinical Negligence Practitioners’ Group (LSNICNPG).
The aim of the conference was to provide to colleagues both medical and legal updates from keynote speakers and to offer invaluable information and guidance for practitioners in this specialist area.
The first presentation was delivered by Sir Sabaratnam Arulkumaran, Professor Emeritus of Obstetrics and Gynaecology, St George’s University of London.
This was followed by a series of joint presentations, shared between a doctor and a lawyer, considering the commissioning and Pictured are the keynote speakers at the conference. From left: Patrick Mullarkey, review of expert evidence. Partner, O’Reilly Stewart Solicitors; Phillip O’Connor, Consultant in Accident & Emergency and Intensive Care Medicine at the Regional Trauma Unit in the Royal Victoria Hospital; Attendees also had the opportunity to hear Jacqueline McAleese, Partner, Carson McDowell; Dr Kieran McGlade, General Practitioner, about the management of expert evidence Belfast;, Sir Sabaratnam Arulkumaran and Mark Harvey, Assistant Chief Legal Adviser, during the lifetime of the case. Directorate of Legal Services.
Obligations pursuant to the Solicitors’ (Northern Ireland) Order 1976
The Society’s Professional Conduct Department wishes to remind the membership of their obligations pursuant to the Solicitors’ (Northern Ireland) Order 1976 as amended and the Regulations made thereunder.
In particular we draw attention to Article 31 of the Solicitors’ (Northern Ireland) Order 1976 as amended regarding restrictions on conduct of practice and Regulation 25 of the Solicitors’ Practice Regulations 1987 as amended:
A Solicitor shall bring to the notice of the Society, having where necessary first obtained his client’s consent, any conduct on the part of another solicitor which appears to him to be a breach of these Regulations.
Please direct any enquiries to: The Professional Conduct Department, Law Society of Northern Ireland, Law Society House, 96 Victoria Street, BELFAST BT1 3GN 34 Journal of the LSNI Winter 2019/Spring 2020
Brexit planning a top priority for Law Society of Northern Ireland
The implications of Brexit for legal practice was just one of a number of issues discussed at a series of events organised by the Society throughout Northern Ireland.
The series of events provided local solicitors with up-to-date information on Brexit and a platform to discuss its possible impact on their practices and clients.
Those attending the events in Newry, Belfast, Enniskillen and Londonderry/Derry had the opportunity to hear from a number of keynote speakers including John Campbell, Business Editor with BBC Northern Ireland, Angela McGowan, Director of the CBI Northern Ireland and Stephen Kelly, Chief Executive Officer of Manufacturing NI.
Also speaking at all of the events was Law Society’s Chief Executive Officer, David Lavery CB, who delivered an overview of the ongoing From l to r: John Campbell; David A Lavery CB; Suzanne Rice and Angela McGowan. work of the Society to prepare for Brexit.
Commenting after the Belfast event, David Lavery said:
“The legal profession will not be immune to the impact of Brexit and the Law Society recognises that its priority must be to provide its members with the necessary information and support to ensure that they continue to provide the best available advice.
Our number one priority will be to ensure the continuity of legal services on the island of Ireland irrespective of how Brexit turns out.”
New Brexit Information Pack published
The Law Society of Northern Ireland’s Brexit Information Pack is now available for download.
Brexit and Legal Practice: https://www.lawsoc-ni.org/new-brexit-information-pack-published Northern Ireland, Ireland and the European Union The Pack is designed to be a useful and practical guide to some of the key issues for the profession arising from the Brexit process.
The Society has sent a hard copy version to the principals of all firms. Additional copies are available from Reception at Law Society House. Journal of the LSNI 35 Winter 2019/Spring 2020
Northern Ireland Solicitors’ Team win inaugural Iron Law Triathlon challenge 2019
A Northern Ireland team of solicitors won the Commenting, then Society President, Suzanne inaugural Iron Law Triathlon Challenge 2019. Rice, said: The team which included solicitors Peter Jack from RG Connell & Son, Darren Toombs “On behalf of the Society I wish to congratulate from Carson McDowell and Adam Wood from Peter, Darren and Adam for not only winning Campbell & Haughey Solicitors Ltd, brought the Iron Law Triathlon Challenge 2019 but also home the winning trophy. for committing themselves to this mammoth undertaking and raising more than 30,000 euros The Northern team were competing against for the SBA. It was a fantastic achievement on a team from the Law Society of Ireland as the part of both teams of solicitors.” part of the Iron Law Triathlon Challenge, Adam Wood pounding the road to Dublin. which involved the most exhaustive physical challenges and encompassed three provinces, six counties and at least six border crossings over the course of one day, all in support of the Solicitors’ Benevolent Association (SBA).
The teams raised in excess of 30000 euros and all proceeds went towards supporting the work of the Solicitors’ Benevolent Association (SBA) which helps solicitors and their families who are experiencing difficult times.
From l to r: Adam Wood, Darren Toombs and Peter Jack. 36 Journal of the LSNI Winter 2019/Spring 2020
More than 300 solicitors attended Annual Conveyancing Conference 2019
More than 300 solicitors from across Northern Ireland were in attendance at the Law Society’s Annual Conveyancing Conference at the Hilton Hotel in Templepatrick.
This year’s conference was sponsored by Willis Towers Watson. From l to r: Harry Weir; Simon Hunter; Now in its sixth year, the Law Society Alan Reid; Mary Murnaghan; Rowan Conveyancing Conveyancing Conference has become a White and Sam Kinkaid. regular feature of the legal calendar. Conference 2019 This year’s conference programme covered current issues of importance and relevance Domestic Discharge Consents: The Current the Process and the Future Ahead - LAW SOCIETY to solicitors who undertake conveyancing OF NORTHERN IRELAND transactions as well as a general overview of Stephanie Millar, Northern Ireland the increased threats from Cyber-Crime. Environment Agency A Judicial Perspective - Those attending had an opportunity to hear Lessons learned from the Lender Claims The Honourable Madam Justice McBride from a number of keynote speakers who Culture - spoke on the following issues of interest: Commenting on the conference, Alan Reid, Simon Hunter, Willis Towers Watson Conference Chair said: Welcome by the Chair of the Conference - Alan Reid, Chair of Conveyancing and Property Current cyber threats to the NI Legal Sector - “The Society is delighted that so many local Committee Sam Kinkaid, PSNI Cyber Crime Centre solicitors attended the annual conveyancing conference. Revised General Conditions of Sale (4th Cyber issues and the regulatory framework of Edition) - the Law Society of Northern Ireland - We are especially grateful to our key note Simon Murray, Murray Kelly Moore Solicitors Catherine McKay speakers. our exhibitors and our principal sponsor Willis Towers Watson for their Revised Home Charter Scheme documents - Cyber protection - contribution in making the 2019 conference Mary Murnaghan, Murnaghan Colton Solicitors Harry Weir, Willis Towers Watson such a success.”
Society hosts Well Being Day at Law Society House
Suzanne Rice, President of the Law Society of Northern Ireland, was delighted to welcome colleagues for an early morning pilates class at Law Society House in Belfast.
The pilates class was part of a series of events for the Law Society’s ‘Well Being Day’ in support of the solicitor profession in Northern Ireland.
Attendees at the pilates class. Journal of the LSNI 37 Winter 2019/Spring 2020
Solicitors’ Benevolent Association - making a real difference
Dear Colleagues
As the representatives for Northern Ireland on the Board of the Solicitors’ Benevolent Association (SBA) we would like to take this opportunity to thank all our colleagues for their continuing support throughout 2019 and into 2020.
Your contributions last year have helped support over 100 solicitors and their families in Northern Ireland - many of whom have experienced significant life changing circumstances in their lives.
As colleagues will be aware the SBA is a voluntary charitable body supporting solicitors and their families throughout the island of Ireland.
The SBA is completely independent from both the Law Society of Northern Ireland and the Law Society of Ireland and all applications are dealt with in complete confidence.
As part of the Practising Certificate renewal process for the year ending 5 January 2021, colleagues had the opportunity to make a £100 donation to support the work of the SBA. We are both encouraged and pleased with the response. The increased revenue will make a difference in supporting colleagues and their families going through difficult times.
To explain what the Solicitors’ Benevolent Association does, how it makes a difference and how you can further help, members should have a look at the Association’s website http://www.solicitorsbenevolentassociation.com/ or watch a short video which is downloadable from https://vimeo.com/377531370.
Thank you.
Caroline Boston Colin Haddick John Guerin Solicitors’ Benevolent Association representatives for Northern Ireland
IMPORTANT MEMBER COMMUNICATION
Members are asked to note that the Money Laundering Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 have been amended.
If you intend to become the Beneficial Owner, Officer or Manager of a relevant firm or commence practice as a relevant sole practitioner as defined in the Regulations, youMUST first apply to the Society for approval under the Society’s Regulation 26 process.
You must produce to the Society all relevant, current documents in association with your application.
Please note
- You are not permitted to commence practice as a relevant sole practitioner or beneficial owner, officer or manager of a relevant firm without the Society’sprior approval under Regulation 26 of the Regulations. Silent - You should noteCrisis that this does not affect those solicitors who have applied to the Society for approval under Regulation 26 of the Regulations before 09 January 2020. 38 Journal of the LSNI Winter 2019/Spring 2020
The course also involves some of Northern Ireland’s most senior A&E doctors taking on New video celebrates the role of key witnesses. 20th anniversary of the
At the Closing Dinner for attendees at the Advanced Advocacy Course course, Suzanne Rice, then Society President, said: To mark the 20th anniversary of the course, the Society has produced a “I wish to take this opportunity to congratulate video which highlights the significant Advanced those who have successfully completed the achievements of the course with Advanced Advocacy Course 2019. interviews with those who set up the Advocacy Course course, participated and contributed to its The Law Society of Northern Ireland success over the last two decades. marks 20th recognises the importance of this course, not least in the advocacy skills and techniques The contributions throughout the new anniversary which it teaches, but also in the sense of video highlight the importance of empowerment that it provides to the solicitors the course in the advocacy skills and who undertake it. techniques which it teaches but also in the sense of empowerment that it provides to More than 30 solicitors participated in the The value of the Advanced Advocacy Course the solicitors who undertake it. 2019 Advanced Advocacy course which goes from strength to strength with over 550 marked its twenty year anniversary. solicitors having undertaken this course since The video (which is downloadable from it started. https://vimeo.com/370927837) is also Organised by the Law Society of Northern Its popularity and its success is easily being launched to encourage solicitors Ireland in conjunction with the Advocacy explainable – it is well organised, well from Northern Ireland and further afield Working Party and the National Institute for delivered and well worth it.” who have not undertaken the course or Trial Advocacy (NITA), solicitors are trained those who have but wish to add to their to improve and develop their advocacy skills Solicitors in Northern Ireland have unrestricted skill base to sign up for the new Advanced to assist in making them a more competent rights of audience to represent clients in the Advocacy Course in 2020. advocate. Magistrates’ Court, County Court and Crown Court by virtue of legislation. They also have Given the success of the 2019 course The intensive course combining training limited rights in the High Court by virtue of the Society is encouraging members to in advocacy and evidence culminated in a the Judicature (NI) Act 1978. register their interest in the course now to mock trial in the High Court presided over secure their place for this year. by members of the Judiciary from Northern The Advanced Advocacy Course delivers Ireland including Mr Justice Horner, His Honour additional professional training which Those wishing to undertake the Advanced Judge Kinney, Master Hardstaff and District enhances solicitors’ advocacy skills and Advocacy Course 2020 should email Anne Judge Keown. techniques. Devlin at [email protected] to register their interest at this early stage.
Guests at Advanced Advocacy Course closing dinner. Journal of the LSNI 39 Winter 2019/Spring 2020
Child marriage and trafficking focus of CLA European Hub meeting
Law Society House recently hosted the second meeting of the European Hub of the Commonwealth Lawyers Association (CLA).
The meeting was chaired by the President of the Commonwealth Lawyers Association (CLA), Brian Speers, who was supported by John Almeida, CLA Vice President (Europe), Brigid Watson, Secretary General CLA and Laurie Watt, Treasurer.
The focus of the meeting was to consider issues around child marriage and trafficking with presentations from the Police Service of Northern Ireland.
The meeting also considered legal professional regulation and complaints handling.
Representatives from the Law Society of Northern Ireland, the Law Society of Scotland, the Bar of England and Wales, the Law Society of Jersey, the Law Society of Isle of Man and European Lawyers at CLA Hub Meeting. the Law Society of Cyprus attended.
FOLIO: the Northern Ireland Conveyancing and Land Law Journal
Folio contains up-to-date and authoritative comment and information on conveyancing and land law. The journal is packed with practical and topical articles, case notes and information from leading practitioners and academics. Its unique focus on Northern Ireland law makes Folio an essential information resource for local practitioners. Folio is published twice a year and is priced at £60 per annum (inc p&p).
To subscribe to the journal please contact: Heather Semple, Law Society Library, Law Society House, 96 Victoria Street, Belfast BT1 3GN. DX: 422 NR Belfast 1 or email [email protected] 40 Journal of the LSNI Winter 2019/Spring 2020
Conference examines ‘Silent Crisis’ in the UK immigration system
Law Society House in Belfast was the venue This year’s conference examined recent The conference also examined the for the second Annual Immigration Conference. developments in the legal and policy implications of government policies for frameworks, with regards to the rights asylum seekers. More than 50 members of the legal profession afforded to, and restrictions imposed upon, joined senior members of the judiciary, leading people wishing to enter and live in the UK. Conference attendees also had the academics, prominent activists, community Areas discussed included: opportunity to participate in a unique ‘Small organisations and practitioners to explore the Worlds’ workshop presentation from Belfast conference theme of “The Silent Crisis - Human • ac cess to justice; Syrian Voluntary Friendship Group which provided an insight Rights in the United Kingdom immigration Resettlement Programme; into the real lives of refugees and migrants system”. from around the world. • pr otecting the rights of asylum seekers, migrants and refugees; Organised by the Law Society of Northern Those attending also heard from a range of Ireland Immigration Practioners’ Group, the • the future of human rights within refugee high profile speakers including Lord Justice conference provided an important platform to law; McCloskey and Professor Colin Harvey from discuss overarching and specific immigration Queen’s University, as well as contributions issues for applicants within the immigration • s trategic litigation to further rights of from colleagues working within the system in the United Kingdom. refugees. immigration system.
#thesilentcrisis From l to r: John Mackell, Law Society; Ann Marie White, Red Cross; Liz Griffith, Flourish NI; Alyisha Hogan, PPR; Sinead Marmion, IPG; Bernadette McAliskey, STEP NI; Asleigh Garcia, IPG and Professor Colin Harvey, Queen’s University.
Silent Crisis - a presentation of films relating to the human rights of refugees and asylum seekers
To mark the Conference the Society’s Immigration Practitioners’ Group in conjunction with Queen’s University Belfast hosted at the University’s Moot Court Silent Crisis - a Presentation of Films relating to the Human Rights of Refugees and Asylum Seekers.
Attendees, who included Ashleigh Garcia and Sinead Marmion (Chair and Secretary respectively of the Immigration Practitioners’ Group), had the opportunity to watch the films and participate in a QA and Panel Discussion which was held after the screening and which was moderated by broadcaster, Declan Harvey. The Panel included Professor Colin Harvey, QUB, Sean Murray, Award Winning Director and Edie Shillue, Writer and Social Campaigner. Journal of the LSNI 41 Winter 2019/Spring 2020
New Law Society Mediation Services (LSMS) Board hold first meeting
The first board meeting of the new Law Society Mediation Services (LSMS) took place at Law Society House.
LSMS will provide mediation services from local solicitors who are trained mediators and who will assist in resolving disputes resulting in time and expense savings.
The new LSMS Management Board will consider the future direction and promotion of the service to key stakeholders at home and further afield.
From l to r: Kevin Neary; Rosalind Dunlop; Gareth Jones; Therese Johnston and Brian Speers, interim Chair of the Board.
Law Society hosts Law Commission’s surrogacy project event
More than 40 members of the legal profession and community/voluntary representatives attended The Law Commission of England and Wales’ Surrogacy Project event hosted at Law Society House in Belfast.
The Project is considering the legal parentage of children born via surrogacy, the regulation of surrogacy more widely and the international context of surrogacy.
The Project will take account of the rights of all involved in surrogacy, including the question of a child’s right to access information about their origin and the prevention of exploitation of children and adults.
Those attending the event heard about the Law Commission’s current consultation paper on surrogacy law reform which includes provisional proposals to improve surrogacy laws so they better support the child, From l to r: Verity Bell; Professor Nick Hopkins and Spencer Clarke all from the Law surrogates and intended parents. Commission of England & Wales. 42 Journal of the LSNI Winter 2019/Spring 2020
Over the years the conference has examined McGarry gave a current law update with local Sports Law important sports law related themes including and international issues. Conference 2019 business and sport, contractual issues, sporting injury risks, equality and good governance The conference also included a panel Q&A with outstanding as well as issues in the news including the Michael Beloff QC and Richard Harry who were impact of concussion injuries in sport. joined by Bernie Fox of Ulster GAA and local success solicitor and triathlon athlete, Peter Jack. The popularity of the conference has been reflected not only in the increasing number Conference attendees also had the opportunity One of the world’s leading sports law of attendees drawn from the legal profession, to hear (via a video link) a contribution from specialists was the keynote speaker at the governing bodies of sport and their clubs but Professor Jack Anderson, a member of the annual Sports Law Conference which took the calibre of speakers which has included Court of Arbitration of Sport and Head of place at Malone Golf Club in Belfast. Lady Mary Peters and former Northern Ireland the Sports Department in the University of manager, Michael O’Neill. Melbourne. The conference, which is organised by the Law Society of Northern Ireland and the NI Speaking about the conference, Keith McGarry, The conference continues to be supported Sports Forum, is now in its eighth year and conference organiser and solicitor in Conn and by the NI Sports Forum and Law Society of has become an anticipated feature of the legal Fenton said: Northern Ireland. and sports calendar. “We were delighted that Michael Beloff QC Speaking on behalf of the NI Sports Forum its Michael Beloff QC has had a long and and Richard Harry, CEO of Sport Resolutions UK Chairperson, Richard Johnson, said: distinguished career in sports law and was came to Belfast and spoke at the Sports Law Ethics Commissioner for the London 2012 Conference 2019. “Unfortunately disputes are common place Olympic bid and has been, since 2014, in the world of sport and we are delighted Chairman of the IAAF Ethics Board. Those attending had the opportunity to to have such experienced contributors to the hear not only from Michael Beloff QC on the Sports Law Conference this year to share their Among his credentials he was described in Effective Resolution of Sport Disputes but stories.” the Daily Telegraph in 2011 as “probably the also from Wilma Erskine, former Secretary most eminent sports lawyer in the world”, by Manager of Royal Portrush Golf Club, following Commenting about the conference then the Guardian in 2012 as “the go to man for a hugely successful staging of the 148th Open Society President, Suzanne Rice said: sporting disputes” and in 2016 by The Times Championship in July. as “by far the UK’s and maybe the world’s “The Law Society of Northern Ireland is most distinguished specialist in sports law” All of the contributions underscore the delighted to support the 8th Sports Law and by the Daily Telegraph as “the silkiest increasing importance of the Northern Ireland Conference. It remains the definitive Sports assassin in sport”. Sports Law Conference to the legal, medical Law Conference in both the North and South and sporting professions throughout the of Ireland, offering discussion and insight on He was one of a number of speakers who United Kingdom and further afield.” issues of importance to the legal and sporting presented at this year’s Sports and Law professionals. It is an excellent legal and Conference on the overarching theme of Richard Harry of Sport Resolutions led a moot sporting platform which continues to showcase Mediation in Sport. mediation process with attendees whilst Keith the thought leaders of tomorrow.”
From l to r: Ciaran Kearney; Richard Harry; Jennifer Ferguson; Michael Beloff QC; Wilma Erskine; Ken Nixon and Keith McGarry.
44 Journal of the LSNI Winter 2019/Spring 2020
New Consent Form launched to support patients seeking medical records
Law Society House in Belfast was the venue for the launch of a new initiative which aims to support local GPs, solicitors and clients.
The new ‘Joint Consent Form’ has been developed by the Law Society of Northern Ireland and British Medical Association (BMA). Members of the Society and the BMA attending the launch of the new Consent Form. It is a part of a joint initiative from the two professional bodies which will run as a pilot The form is provided by the solicitor and is which will undoubtedly support both and aims to significantly improve the process completed when the client attends to give professions in the services they provide to by which solicitors seek client’s GP notes and instructions. clients and patients.” records. This is the first in a series of initiatives which Dr Alan Stout, chair of BMA Northern Ireland’s The development of the new form is in it is hoped will build on best practice and General Practice Committee added: response to an increase in requests for patient identify areas of mutual interest to the two notes and records and a recognition by both professional bodies. “Administration workload for GPs has professional bodies of the need to provide increased exponentially over the past few work collaboratively. Commenting on the launch, the then Senior years and changes in data governance were Vice President of the Law Society of Northern adding to this burden. By developing this The new form is provided in a clear, concise Ireland, Eileen Ewing said: form in conjunction with the Law Society of and user friendly format and is supported by Northern Ireland we hope that the process will explanatory notes for the client, solicitor and “The Law Society is delighted to be working be simplified and will free up GP time to see GP in a compatible and easy to use format. with the BMA on this Joint Pilot initiative patients.”
Memorandum of Understanding signed with Belgian/Brussels Bar President Suzanne Rice added her signature on behalf of the Law Society of Northern Ireland to the Memorandum of Understanding developed between the UK Law Societies and Bars and the Belgian/Brussels Bar.
The MOU underscores the commitment of the respective professional bodies to future co-operation and partnership between the jurisdictions, irrespective of the terms of the UK’s withdrawal from the European Union.
This reflects a shared aim of the legal professions across the UK jurisdictions and their Belgian counterparts to facilitate the practice of law and the interests of clients internationally and to demonstrate that it is possible for individual professional bodies and regulators to signal their intent to facilitate such co-operation. Journal of the LSNI 45 Winter 2019/Spring 2020
Society Annual Dinner 2019
Nearly 200 solicitors attended the Law Society of Northern Ireland’s Annual Dinner which was held in the Titanic Hotel in Belfast on 29 November 2019.
Speeches were delivered by the Society’s new President, Rowan White, guest speaker, Mr Justice Huddleston and Sarah Matthews of Tughans, speaking on behalf of the newly admitted solicitors.
During his keynote address the new President, Rowan White, welcomed the newly admitted solicitors to the Law Society of Northern Ireland, outlined his Presidential programme for the year ahead and his support for his chosen charity of the year, Action Mental Health.
David Babington, Chief Executive of Action Mental Health, also spoke at the dinner.
The Society wishes to thank Harbinson Mulholland for their sponsorship and support of the Annual Dinner 2019.
Suzanne Rice, Senior Vice President; Rowan White, President; Brigid Rachael Gamble; Chris Kinney; William Nugent; Eileen Ewing, then Napier, Junior Vice President and David A Lavery CB, Society Chief Society Senior Vice President; Shannon Gawley; Owen Williamson; Executive. Lauren Jones and John O’Kelly.
Dinner Guests in The Drawing Room, Titanic Hotel. 46 Journal of the LSNI Winter 2019/Spring 2020
Sarah Matthews speaking on behalf of the newly admitted Patrick McIlroy; Rebecca Logan; Kirsten Magee; Maeve Fisher; Emma McCloskey; solicitors. Sancha O’Neill and Lucy Hannah.
Stephen McGuigan; Anna Fitzpatrick; Micaela Fitzpatrick; Caroline Ciaran Maguire, Chair of the Belfast Solicitors’ Association and Rowan McCammon and Timothy McCall. White, President.
Amy Hamilton; Aimee Donaldson and Katie Millar. Mr Justice Huddleston; Rowan White, President and David A Lavery CB.
Nichola Coghlan; Nadine Brennan; Nicola Dooher; Aimee Craig; Sarah Leonora Rice and Louise McLaughlin. Matthews and Caoimhe Lowe. Journal of the LSNI 47 Winter 2019/Spring 2020
How do you search for a job in the legal market?
MCS Group is a leading recruitment 7 DON’T try and force the process rejected because of social media. consultancy operating across Northern Ireland. • Why? I have been told by some firms that Basically, what I am saying is, any In this article David McCallum, Specialist Legal they have been phoned multiple times a recruiter, human resource manager or Recruitment Consultant, discusses how to go day by people looking for update on their business owner worth their salt will about searching for a new opportunity in the CV. This is when a recruitment consultant Google someone they might invest legal market. is good as they can keep the ball rolling in. Keep your social media clean and without making you seem desperate or in controversial free and please use a I guarantee that most people will read this some cases a pest! professional looking photo. article’s headline and immediately think that they will just do a quick Google search, or 3 DO write a cover letter So that gives an idea of simple dos and don’ts head to an online job board. Ten years ago, job • Why? Well it won’t always be necessary but what tips are there for the newly qualified seekers would have picked up a newspaper but on occasion it’s very useful, and can solicitors in regards to the future of roles and looked at the vacancies columns or the make your profile stand out from the within the Northern Ireland Legal market? careers supplement. So, in 2020, what is the crowd, while demonstrating that you best way to go about finding a new job? have taken the time to go beyond pinging 1. Tech – if you have any IT skills now is across a CV. I suggest having several the time to utilise them. Technological Some people will tell you it depends on versions saved matching the differing innovations, new systems and artificial what stage you are at in your career, and areas you may want to work in. intelligence is obviously a massive area yes there is some truth to that; if you carry of growth, coupled with the fact that one more experience the job might come to you. 7 DON’T click on every job! of the fastest growing sectors in legal However, in my opinion anyone applying • Why? Because recruitment firms will recruitment is hybrid roles involving legal for jobs is on a level playing field. Post be advertising the same jobs as well as knowledge and tech skills. the application point, work experience, firms. Imagine a firm receiving your CV qualifications and quality of CV come in to play three or four times, this might smack of So, if you are sitting at home coding in but at the point of locating jobs, everyone is in desperation which will make negotiation your spare time, then make sure and same boat. harder. get it on your CV. Outside of that it might be worth doing a part time course on I have outlined below a few dos and don’ts 3 DO utilise a Recruitment Consultant! an area of relevance within IT or digital. when commencing your search for a new • Why? Because its free, why would you not Honestly, upskilling will make you stand position: take free advice and help? Honestly it just out amongst your peers. makes sense! 3 DO read the requirements of the role 2. Picking a specialism – OK, you need to • Why? Because if you don’t cover those 7 DON’T jeopardise your job search with be careful when picking a specialism, requirements it will be a rejection and social media some allow for switching but others will some firms will not consider your CV for • Why? It’s simple, you could have used mean you will be forever pigeon-holed. anything else, which would be a shame if a recruitment consultant, written an Seek advice from established solicitors or a job matching your skills were to appear amazing cover letter, utilised every come and have a chat with me and I will in the future. method of job search and keep getting talk through your options. I don’t want to make anyone feel bad, but the reality is that some specialisms may not exist in ten years. Mr Justice Huddleston; Rowan White, President and David A Lavery CB. These are just a few pieces of advice, but keep an eye out for an upcoming event hosted by MCS Group where a panel of experts from across the legal sector will discuss and debate what they think the legal landscape will look like in the future. You will also have an opportunity to ask questions and put across your opinion.
If you would like further information regarding your next career move or indeed landing your first role, please speak to me, David McCallum by calling 028 9023 5456 or emailing [email protected] . 48 Journal of the LSNI Winter 2019/Spring 2020
facilitation skills. The JPC promote human The JPC are seeking to launch a pilot mediation Swapping the rights and access to justice within vulnerable service that will provide the access to justice corridors of rural communities and within the two that many local people simply cannot afford, refugee settlements in the Hoima district. helping to resolve conflicts over land, inheritance Laganside for the The settlements are home to international issues and family disputes. Oil has recently refugees fleeing from war and oppression in been discovered in the region and this has led dusty streets of the Democratic Republic of the Congo and to many people being evicted from their land South Sudan, together with those from Burundi, without adequate compensation, or in some rural East Africa Rwanda, Kenya, Sudan and internally displaced cases none at all. We also aim to broaden our populations fleeing strife. engagement and impact within the refugee – appeal by Peter settlements and set up Justice and Peace Most people in the Hoima region live in abject Committees within the settlements of Kyangwali McGettrick and poverty, are unaware of their basic human and Kiryandongo. Nicki Clarke rights and often people’s rights are being abused by both State and non-State actors. We are asking our friends and colleagues back Furthermore, even within communities who home to help us raise some money to inject into do have knowledge of their rights, many do our project. All donations, however small, will In November 2018, my partner Nicki Clarke not know where to turn when their rights are be greatly appreciated and we can guarantee and I travelled to Uganda to undertake a year abused. Corruption within the State is endemic 100% of the funds will be spent on the ground of volunteering. We are working as Volunteer and a huge barrier to progress in a country rich here in Uganda. You can rest assured your Development Workers with the Justice and in minerals and natural resources. money will be not only put to good use, but will Peace Commission (JPC) in Hoima, a small town also be reaching some of the most vulnerable in Western Uganda. The local population survive The JPC attempt to raise awareness of people’s and impoverished people in the world. mainly through subsistence farming, with rights by various means: through a weekly domestic electricity and water connections rare radio phone in show; Justice and Peace clubs For anyone who can donate, the easiest way to and constant power and water outages for the in local schools; community engagement do so is to use our dedicated JustGiving Page: lucky few who do. events and training events. We have a range https://www.justgiving.com/crowdfunding/ of other projects we are attempting to initiate peteandnickijpc Our main role is to build the institutional to supplement our current work but, as is capacity of the JPC and provide training in often the case with projects in Africa, a lack Wabale Mono! (Thanks very much!) different areas, to include peace building and of finances prevents worthy initiatives from mediation, finance, child safeguarding and getting off the ground. Peter McGettrick and Nicki Clarke Journal of the LSNI 49 Winter 2019/Spring 2020
HIGH COURT COURT OF APPEAL IN THE MATTER OF EC AN 21 MARCH 2019 7 MAY 2019 APPLICANT FOR BAIL HORNER J MORGAN LCJ, STEPHENS LJ, TREACY LJ Applicant granted bail . - applicant charged with causing IN THE MATTER OF AN grievous bodily harm with intent, APPLICATION BY DEBORAH CONTRACT attempting to pervert the course MCGUINNESS FOR LEAVE TO APPLY of justice and criminal damage. From the FOR JUDICIAL REVIEW (NO 2) RONALD KERR V AGNES JEAN - prosecution alleges that the Whether the proceedings are to be JAMISON applicant has breached a bail characterised as a criminal cause Whether the defendant entered condition which was that he was High Court or matter and consequences for into a binding agreement whereby not to see, speak to or in any ensuing hearings and appeals. she assigned all her interest in other way contact any of the and Court - applicant seeks to challenge a dwelling house to her niece. alleged victims or witnesses in the three decisions related to the - plaintiff (who is the personal case, either directly or indirectly. of Appeal – consideration of the inmate, representative) seeks a declaration - prosecution contend that bail Michael Stone for early release; that the defendant is bound by the should be revoked. - definition of abstracts the decision of the Sentence terms of an agreement entered reasonable grounds. - definition Review Commissioners to accept into between her and all the other of opinion. - rules of evidence. - of some the application made by the beneficiaries of the estate of the procedure for the revocation of prisoner for early release; the deceased whereby they all agreed bail. - HELD that bail is revoked recent case decision of the Commissioner to to transfer their respective interests HIGH COURT law direct that the application be the in land and premises to the niece, 8 AUGUST 2019 subject of a preliminary indication an order that the defendant STEPHENS LJ The full text of these decisions by a panel of the Sentence takes all the necessary steps and is available on the Libero Review Commissioners and the executes all necessary documents IN THE MATTER OF AN Database in the member’s decision of the Sentence Review to transfer her interest and APPLICATION BY MARK PATRICK section of the Law Society Commissioners to not provide alternatively damages for breach TOAL FOR JUDICIAL REVIEW (NO.2) Website at information about the proceedings of contract. - legal principles of the Appeal against quashing of a www.lawsoc-ni.org before them and the decisions formation of a binding agreement. - finding of a Parole Commissioner made in relation to the application HELD that application dismissed Panel that it was not satisfied that of the prisoner for early release. HIGH COURT it was no longer necessary for ADMINISTRATION OF JUSTICE - HELD that the application for 27 FEBRUARY 2019 the protection of the public from judicial review is neither a criminal MCBRIDE J serious harm that the respondent ALAN FERGUSON AND GEORGINA cause nor a criminal matter should be confined in prison. - FERGUSON AND LESTER WEIR AND HIGH COURT test for the assessment of the WEIR JOINERY AND CONSTRUCTION 1 AUGUST 2019 CRIMINAL LAW significant risk of serious harm to LIMITED V RAYMOND GILLESPIE MCCLOSKEY J, KEEGAN J members of the public under the T/A PRESTIGE HOMES AND ALPHA DIRECTOR OF PUBLIC Criminal Justice (NI) Order 2008. - INSULATION LIMITED REGINA V SEAN MURPHY PROSECUTION’S REFERENCE whether the Panel failed to apply Plaintiffs claim the defendants Applicant charged with 8 counts (NUMBER 1 OF 2018) VINCENT the correct test and/or misdirected were guilty of breach of contract contrary to the Protection from LEWIS themselves in law. - whether there and negligence in and about the Harassment (NI) Order 1997. - Offender was sentenced to a term is an equivalence between the test carrying out of design and building applicant wished to vacate his of 10 years 6 months pursuant for dangerousness and the test for work at their premises. - third party guilty plea and solicitor wished to the Criminal Justice (NI) Order release. - HELD that appeal allowed were engaged as a sub-contractor to come off record. - applicant 1996 in respect of multiple COURT OF APPEAL to carry out insulation work at the claimed that he stopped the trial offences of indecent assault, and 27 JUNE 2019 premises. - parties agreed to permit because of emotional stress. - sexual offences against children. - MORGAN LCJ, STEPHENS LJ, TREACY LJ the defendants to withdraw/ application to vacate the plea application for leave by the Director continue against the third party on the basis that he did not of Public Prosecutions to refer the R V JOHN PATRICK MAUGHAN AND and that the third party would understand the advice being given sentences to the Court of Appeal OWEN JOHN MAUGHAN bear his own costs. - whether this to him by his legal representatives pursuant to s.36 Criminal Justice Appeal against sentence. - was a final order precluding the at the time, given the stresses he Act 1988 on the grounds that appropriate reduction in sentence defendants from taking further was under. - whether the applicant they were unduly lenient. - age when an offender pleads guilty at proceedings and re-litigating can prove that the stresses he was of the offender. - aggravating and arraignment but does not indicate the action. - distinction between under deprived him of his freedom mitigating factors. - HELD that the his intention to plead guilty at the having proceedings discontinued/ to choose whether to plead guilty sentences were unduly lenient and outset. - defendants convicted withdrawn and having proceedings or not guilty. - judge dismissed increased by order of the court of numerous offences between dismissed or obtaining judgment. the application to vacate. - COURT OF APPEAL them including aggravated - HELD that defendants are entitled applicant appealed the dismissal. 31 MAY 2019 burglary, theft, possession of a to issue a further Third Party Notice - application for extension of time MORGAN LCJ, STEPHENS LJ, firearm, resisting police, dangerous against the third party dismissed MCBRIDE J driving, possession of drugs and 50 Journal of the LSNI Winter 2019/Spring 2020
false imprisonment. - whether it was possible in law to make an unreliable. - whether inclusion of Ancillary relief application appeal the starting point was too high. award of aggravated damages. - if the tapes as evidence would have by the husband against orders of - whether the Judge failed to so, whether an award should be an adverse effect on the fairness of the Master. - appeal by way of have regard to the totality of the made in this instance, and the the proceedings. - HELD that tapes re-hearing. - husband claimed the sentence passed. - whether the appropriate amount. - HELD that be excluded as evidence court failed to take into account the discount of 25% failed to properly the claim by the estate for injury to CROWN COURT wife’s failure to disclose a number reflect the credit the applicant feelings of the deceased resulting 16 OCTOBER 2019 of assets including her pension, ought to have received as a result from the tortious actions of the O’HARA J that the court placed an excessive of guilty pleas which were entered soldiers culminating in him being valuation on the husband’s assets, on arraignment. - whether the shot dead is established in law and that the court wrongly took Judge made adequate allowance the estate is entitled to aggravated FAMILY LAW into account assets which were for the fact that one of the damages of £15,000 inherited and other assets which defendants is seriously learning HIGH COURT RE: C (A CHILD) were non-matrimonial property disabled. - aggravating and 2 APRIL 2019 Trust seeks a care order and freeing and that the court failed to take mitigating factors. - HELD that both MCALINDEN, J order for a girl who is just over 2 into account litigation misconduct appeals dismissed years old. - applications are resisted on the part of the wife. - findings COURT OF APPEAL by the mother.- child is with foster of fact regarding income and 25 NOVEMBER 2019 DISCLOSURE carers who are not suitable as capital assets of both parties, STEPHENS LJ, TREACY LJ, KEEGAN J long term carers because of their income and earning capacity of RE S (DISCLOSURE TO THIRD age. - threshold criteria. - whether the parties, assets and financial R V SHANNON McILWAINE PARTY) long term care or freeing for resources, monies dissipated since Defendant is one of 8 persons Application by the Police Service of adoption is appropriate. - likelihood the date of marital separation, facing various counts on indictment Northern Ireland (“PSNI”) for the of placement. - mother claims financial and litigation misconduct. arising from alleged murder and release of 2 reports, which were that, in order to protect the - legal principles on division of assault. - defendant has made prepared in relation to proceedings child’s ethnicity, she should not capital and periodical payments. - an application for her count to be involving children of a family who be adopted outside the traveller HELD that assets to be divided to severed from the indictment and were placed on the Child Protection community. - HELD that care order provide the wife with a home and that she should be tried separately Register under the categories made based on the care plan assets to enable her to generate from all other defendants named of potential emotional, physical that C be freed for adoption and income and become self-sufficient on the indictment on the basis and sexual abuse. - release of that the mother is unreasonably HIGH COURT that it would ensure fairness in the documents held by the Court under withholding her consent 23 OCTOBER 2019 trial process to the defendant and the Family Proceedings Rules (NI) HIGH COURT MCBRIDE J co-defendants. - presumption in 1996. - disclosure to third parties 19 JULY 2019 favour of a joint trial unless the risk from family proceedings. - welfare O’HARA J S V S of prejudice is unusually great. - and interests of the children. - Application for ancillary relief and HELD that application refused maintenance of confidentiality in A FATHER V A HEALTH AND SOCIAL clean break. - income and assets. CROWN COURT children cases. - public interest CARE TRUST AND A MOTHER - whether the husband’s company 4 OCTOBER 2019 and administration of justice. - Applications relate to a male and was an asset of the marriage. - COLTON J redactions proposed by the parties. female child who were the subject valuation of the company. - dispute - extent of disclosure. - HELD that of care orders. - care plan that the about whether wife was cohabiting it is appropriate to release both girl should remain in her current with a subsequent partner and DAMAGES reports to the PSNI long-term foster placement and whether the wife was claiming HIGH COURT that the boy should be freed for and receiving government benefits DESMOND JAMES DOHERTY AS 13 MARCH 2019 adoption and be placed with his during such cohabitation EXECUTOR OF THE ESTATE OF KINNEY HHJ current carers. - father did not HIGH COURT BRIDGET MCGUIGAN GALLAGHER have parental responsibility for the 11 APRIL 2019 (DECEASED) V MINISTRY OF girl. - discharge of a care order. - SWEENEY M DEFENCE EVIDENCE freeing a child for adoption in the Plaintiff is the widow of a person best interests of the child. - parent WESTERN TRUST V P AND Q shot dead on Bloody Sunday and R V IVOR BELL unreasonably withholding consent. Ex Parte Emergency Protection initiated a claim for damages under McConville. - confession evidence - religious practices. - A.8 ECHR Order (“EPO”). - issue and the Law Reform (Miscellaneous made to Mr McIntyre in 2004. right to family life. - HELD that the service of proceedings. - ex parte Provisions) Act 1937 on behalf - whether the evidence should father’s application to discharge the applications.- consequence of of the estate of her late husband be excluded under a.74(2) and care order dismissed, that the boy either parent not appearing before under the Fatal Accidents (NI) a.76 Police and Criminal Evidence should not be freed for adoption a Family Proceedings Court. - Order 1977. - plaintiff died before (NI) Order 1989. - application to HIGH COURT powers of a District Judge. - need the action came for hearing and exclude the Boston tapes evidence. 4 JANUARY 2019 to obtain leave. - discharge of was continued in the name of the - whether the confession made MCFARLAND HHJ an EPO. - HELD that, without a Executor of the Estate. - whether by the defendant in consequence summons being duly served, the in the case of a victim who died of the false guarantee given to MADONNA MARIE QUINN V appellant had not been given instantly as a result of being shot, him was likely to be rendered ANTHONY JOHN QUINN notice of the hearing and was Journal of the LSNI 51 Winter 2019/Spring 2020
entitled to seek discharge of the the fitting of electronic monitoring LICENSING PERSONAL INJURIES EPO equipment in respect of his curfew. MAGISTRATES’ COURT - statutory provision on recall of DENMIN LIMITED V JOHN HUGHES NEASON GERALD DYNES V 2 APRIL 2019 offenders. - whether the decision AND SINEAD HUGHES TRANSPORT NI DEPARTMENT FOR MEEHAN DJ of the Commissioner was unlawful In the matter of an application INFRASTRUCTURE on the basis that there was an for the provisional grant of Plaintiff was injured in an accident uncritical assumption that all the an intoxicating liquor licence in which he lost the tip of the HUMAN RIGHTS facts in the police report were pursuant to a. 5(1)(B) of the middle finger of his right hand correct and there was an obvious Licensing (NI) Order 1996. - when a street lamp standard fell. IN THE MATTER OF AN need to make simple enquiries validity of the licence to be - evidence. - liability. - HELD that APPLICATION BY FRANCIS of the officer compiling the police surrendered. - whether the there is a measure of liability which MCGUIGAN AND MARY MCKENNA report. - HELD that appeal allowed remaining objector was entitled falls on the defendant but part of FOR JUDICIAL REVIEW in so far as leave granted to apply to raise an objection in relation the accident can be ascribed to Appeal concerns applications for for judicial review but dismissed to the validity of the subsisting negligent behaviour on the part judicial review by “the hooded the appeal on the merits licence. - beer garden had been of the plaintiff in climbing and men” of the decision made by the COURT OF APPEAL created outside the curtilage of swinging on the lamp standard in PSNI that there was no evidence 1 APRIL 2019 the original licensed premises on such a way as to bring about the to warrant an investigation, STEPHENS LJ, TREACY LJ, SIR adjoining land which had been accident and put him in danger. - compliant with Articles 2 and 3 of RICHARD MCLAUGHLIN purchased after the licence had plaintiff held to be 50% responsible the ECHR, into the allegation that been granted and which was not for the accident and awarded the UK Government authorised and IN THE MATTER OF AN APPLICATION licenced for the consumption of £20,000 used torture in Northern Ireland. - BY MARGARET MCQUILLAN FOR alcohol. - recusal application of HIGH COURT interrogation of persons detained JUDICIAL REVIEW judicial bias. - whether conflict of 24 MAY 2019 without trial. - five disorientation Judicial review application interest on the part of counsel. MAGUIRE J and sensory deprivation seeking a declaration that the - manner in which counsel techniques. - whether the proposed further investigation cross-examined a witness. - HELD treatment to which the men were into the death of her sister by that the applicant’s application is POLICE subjected could be characterised as the Legacy Investigation Branch refused on the basis of a failure torture. - HELD that the treatment (“LIB”) of the PSNI conflicts with to comply with the mandatory MAUREEN MAGEE AS to which Mr McGuigan and Mr the requirements of a. 2 ECHR on provisions of Article 74(4)(e)(ii) ADMINISTRATRIX OF THE ESTATE McKenna were subject would, the basis that the LIB lacks the of the 1996 Order.- issues over OF JONATHAN MAGEE (DECEASED) if it occurred today, properly be requisite independence required the conduct of the appellant’s V CHIEF CONSTABLE OF THE POLICE characterised as torture bearing to perform an a.2 compliant solicitor and counsel be referred SERVICE OF NORTHERN IRELAND in mind that the ECHR is a living investigation into the death. - to their respective professional Appeal against decision of Master document. - one judge dissenting - whether an a.2 investigatory disciplinary bodies to order the plaintiff’s action in dissenting judgment attached requirement arose under the HIGH COURT common law negligence against the COURT OF APPEAL Human Rights Act 1998. - whether 8 FEBRUARY 2019 defendant to be dismissed pursuant 20 SEPTEMBER 2019 correct legal tests of public MCALINDEN J to O.18 r.19 RCJ. - plaintiff’s claim MORGAN LCJ, STEPHENS LJ, SIR confidence and public perception arises from the death of her son DONNELL DEENY applied. - HELD that a.2 ECHR who asserts her claim under the Law applies to the future investigation MENTAL HEALTH Reform (Miscellaneous Provisions) of the death, the Chief Constable (NI) Act 1937 and the Fatal Accidents JUDICIAL REVIEW has not demonstrated practical A HEALTH AND SOCIAL CARE (NI) Order 1977. - viability of the independence on the part of the TRUST V MR X AND THE OFFICIAL cause in respect of alleged common NEIL HEGARTY’S APPLICATION FOR LIB and the trial judge was correct SOLICITOR AND MS Y law negligence on the part of the JUDICIAL REVIEW to conclude that the PSNI were not Deprivation of liberty. - Mr X police. - whether no reasonable Appeal against dismissal of an bound in any form of procedural suffered from a mental illness cause of action. - whether the application for judicial review legitimate expectation , that within the meaning of the Mental Chief Constable owed a duty of brought about by the appellant there was no parallel obligation Health (NI) Order 1986 (“the care to the plaintiff or his personal who seeks to impugn 2 decisions to a.2 existing at common law Order”). - Trust applied for an representative. - correctness of the by the Parole Commissioner so that there was no breach of order for guardianship under a.18 Master’s decision to strike out the and the Department of Justice the common law that the Chief of the Order . - whether Mr X plaintiff’s common law cause of recommending that the appellant’s Constable had not acted irrationally was being deprived of his liberty action in negligence against the licence be revoked and he be or unreasonably in the exercise of within the care home in which Chief Constable. - involvement of the recalled to prison. - applicant discretion concerning the future he was placed. - whether the police with the deceased prior to his contends that both decisions conduct of any investigation into provisions of a.22 of the Order death and powers available to them. were unlawful being based on an the death can be interpreted as a power to - HELD that plaintiff’s appeal allowed inaccurate and un-particularised COURT OF APPEAL detain. - appropriate order and statement of claim restored assertion that the appellant had 19 MARCH 2019 HIGH COURT HIGH COURT stated before leaving prison that MORGAN LCJ, STEPHENS LJ, SIR PAUL 17 MAY 2019 13 SEPTEMBER 2019 he would not be consenting to GIRVAN O’HARA J MAGUIRE J 52 Journal of the LSNI Winter 2019/Spring 2020
Re: Ian Charles Patrick Madden MISSING TITLE DEEDS (deceased) Formerly of: 3 Billy’s Road, Property: 97 Dublin Road, CLASSIFIEDS Commons, Newry, County Down Antrim, County Antrim BT34 2NA, BT41 4PN 4 Bridge Street, Lurgan, Owner: Paul Gibson and Roisin Re: Margaret McGregor Craigavon, County Armagh Missing Wills Gibson (deceased) BT66 6AY and Late of: Anniscliff House Would any person having Re: Hugh Fitzpatrick (deceased) 137 Bridge Street, Portadown, Nursing Home, 141 knowledge of the whereabouts Late of: 14 Mullandra Park, Kilcoo Craigavon, County Armagh Moneysharvin Road, Maghera of the Title Deeds for the Date of Birth: 16 March 1937 BT63 5AW BT46 5HZ above property please contact Date of Death: 12 May 2019 Late of: 132-136 Thomas Street, Formerly of: 434 Antrim Road, the undersigned as soon as Would any person having any Portadown, Craigavon, County Belfast possible:- knowledge of the whereabouts Armagh BT62 2AN Date of Death: 15 January 2018 Brian Gibson of any Will made by the above- Date of Death: 12 September 2019 Would anyone having any Apartment 9, Kim’s Court named deceased please contact the Would any person having knowledge knowledge of the whereabouts 21 Kensington Road undersigned as soon as possible. of the whereabouts of a Will made of any Will made by the above Belfast BT5 6NH Brian Feeney & Co by the above named deceased named deceased please contact: Tel: 07710 462533 Solicitors please contact: Mallon McCormick Solicitors Email: brian.p.gibson@ 20-22 Market Street Watson and Neill Limited btinternet.com Downpatrick Solicitors Station Master’s House 23 High Street County Down BT30 6LY Property at: 33 Ballybracken 16 Station Road Lurgan Tel: 028 4461 6895/028 4461 Road, Doagh, Ballyclare, Maghera Craigavon 5153 County Antrim BT39 0TQ BT46 5BS County Armagh BT66 8AH Email: info@brianfeeneysolicitors. Owner: William McNeilly Tel: 028 7964 2670 Tel: 028 3832 5111 co.uk Wilson (otherwise Wilfred) Fax: 028 7964 4655 Fax: 028 3832 7319 and Janetta Wilson. Re: Veronica (otherwise Vera) Email: [email protected] Re: John Joseph McAfee Would any person having Farrell (deceased) (deceased) knowledge of the whereabouts Late of: 15 Captain’s Road, Re: Daniel McCormick (deceased) Late of: 7 Benvardin Road, of the Title Deeds for the above Forkhill BT35 9RR Late of: 28 Upper Stanfield Street, Derrykeighan, Ballymoney property please contact the Date of Death: 25 April 2019 Belfast BT7 2DN BT53 8AG undersigned as soon as possible: Would anyone having any Date of Death: 3 March 2018 Date of Death: 3 June 2019 Ian McMurray knowledge of the whereabouts of Would any person having knowledge Would anyone having any O’Rorke, McDonald & Tweed any Will made by the above named of the whereabouts of a Will made knowledge of the whereabouts Solicitors deceased please contact: by the above named deceased, of any Will made by the above 37/39 Church Street Eoin McConville please contact the undersigned as named deceased please contact: Antrim Fisher & Fisher soon as possible: Mallon McCormick Solicitors County Antrim BT41 4BD Solicitors Mr Robert Crawford Limited 9 John Mitchel Place R P Crawford & Co Station Master’s House Newry BT34 2BP Solicitors 16 Station Road Tel: 028 3026 1811 17 Stranmillis Road Maghera Fax: 028 3026 6695 Belfast BT9 5AF BT46 5BS Email: eoin.mcconville@ffsolicitors. Tel: 028 9038 1024 Tel: 028 7964 2670 THE com Email: robbie@rpcrawfordsolicitors. Fax: 028 7964 4655 WRIT com THE JOURNAL OF THE LAW SOCIETY OF NORTHERN IRELAND ISSUE 232 Winter 2019/Spring 2020
THIS ISSUE Society welcomes If you wish to advertise in The Writ please its new President, THE Rowan White contact Karen Irwin for rates, specification and copy deadlines at:
Cognitive bias in The bounds of protected speech Child Contact Centres Email: [email protected] fingerprint evidence A review of the decision in the An outline of the role, Does the alleged ‘matching’ case of In re Jolene Bunting responsibilities and ridge detail even exist? [2019] NIQB 36. requirements of these safe and WRIT neutral spaces. Journal of the LSNI 53 Winter 2019/Spring 2020
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REPUBLIC OF IRELAND AGENTS
Willing to undertake agency work on behalf of Solicitors in Northern Ireland
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Contact: Marc Fitzgibbon, Partner 54 Journal of the LSNI Winter 2019/Spring 2020
HEART TRUST FUND (ROYAL VICTORIA HOSPITAL)
The main object of this established and registered charity is the support and furtherance of the vitally important treatment, both medical and surgical, provided primarily for patients in the Cardiology Centre in the Royal Victoria Hospital Belfast, and the equally important work of research into heart disease carried on there. The charity is authorised to use its fund to provide that support, or achieve that furtherance when (but only when) public funds are not available, or are insufficient, for the purpose. The Royal’s splendid record in the fight against heart disease is too well known to need advertisement, and by an immediate cash gift or a legacy or bequest to this charity in your will, you can help directly to reduce the grave toll of suffering and death from this disease in Northern Ireland. The grim fact is that the incidence of coronary artery disease in Northern Ireland is one of the highest in the world. The administration of the charity is small and compact and the Trustees are careful to ensure that its cost is minimal. As a result donors and testators can be assured that the substantial benefit of their gifts and bequests will go directly to advance the causes of the charity.
Further details about this charity and its work will gladly be supplied by the Secretary, The Heart Trust Fund (Royal Victoria Hospital), 9B Castle Street, Comber, Co Down BT23 5DY. Tel: (028) 9187 3899. (Registered Charity No: XN52409). (Inland Revenue Gift Aid Scheme Code: EAP76NG). (Registered with The Charity Commission for Northern Ireland: NIC100399) Web: www.hearttrustfund.org.uk Email: [email protected]
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