ANNUAL REVIEW 2018 WELCOME CONTENTS

There are two key themes in this year’s Bindmans Annual Review: our work defending whistleblowers, and issues Defending whistleblowers arising from Brexit. We are also mindful that a further twelve months have passed without any answers coming out 04 of the Grenfell Tower Inquiry. We have a dedicated team of lawyers who are representing in the region of 190 of the 10 The human cost of the hostile environment former residents of the Tower; they are working intensely to ensure that as core participants in the Inquiry their voices Grenfell Tower - time for the companies to speak are heard. We are concerned that those responsible for the design, construction and refurbishment of the Tower 12 have remained silent; as Paul Ridge states, only a few of those corporate core participants invited to make opening 14 Brexit: rights to a fair vote and a change of heart statements have done so. 16 Koshka Duff Our cover story features Chris Wylie, the man who blew the whistle on his former employer Cambridge Analytica. The 18 Professional negligence: what do do if you have received bad advice from your impact of his actions has been felt far and wide. Tamsin Allen writes of her visits with Chris to the US, to Canada and professional advisers Trinidad. It is a complex case and demonstrates the firm’s skill in cross-departmental working, involving lawyers from 20 Justice for Julian Cole our Public Law, Crime and Employment teams. 22 Adopting an adult We are delighted that The Guardian chose to include four of our cases in a key article on the experience of 23 Search, sift and seizure of legally privileged and journalistic material whistleblowers. Peter Daly and Robert Maddox detail some of these cases including Shahmir Sanni whose own case is Better communication: the route to more satisfied NHS patients? linked to Chris Wylie’s. 24 26 What is a Serious Crime Prevention Order? Brexit has been at the forefront of most people’s minds in 2018. John Halford, Amy Rowe and Clara Barry Born look Deal or no deal: Family law post-Brexit at some of the issues. John charts the work he has undertaken for Fair Vote in bringing a judicial review to the Prime 28 Minister’s decision not to set up an inquiry into the irregularities in the EU Referendum campaign; he goes on to look 30 The problem with police disclosure at the possibility of revoking the Article 50 notice and holding a second referendum. Amy and Clara outline the impact 32 The year of the whistleblower of a deal scenario and the possibility of continuing reciprocal arrangements for families with other EU member states. They also consider the situation for cases involving children, divorce, maintenance and domestic violence if there is no 34 #MeToo and the systemic prosecutorial disclosure failings that the campaign deal. did not need Apology to Lybian man arrested after Manchester bombing for false allegation of Much of our work relates to challenging the Government, the Police or a State agency. Rachel Harger’s and Jules 36 Carey’s case for family of Julian Cole, Ella Jefferson’s article on failures in the Crown Prosecution Service, Laura Hobey- ISIS link Hamsher’s story of Beth and Mitchell, Jude Lanchin’s observations on the Gang Matrix, Ashley Fleming and Abigail 38 Extremism and hate speech: a matter of fact or opinion? Evans on the hostile environment concept and Lana Adamou’s case of Hannah are all examples of the cases that our All you need is love? solicitors undertake every day. In some instances, this has an international dimension as Saimo Chahal’s Buttet case 40 and Kate Goold’s and Alison Stanley’s work for a client facing extradition indicate. 42 The Gang Matrix Extradition and asylum: prosecution or persecution? There are two stories in the Review relating to the Press, each with a different stance. Jessica Skinns writes of the 44 treatment of confidential journalistic material under search, sift and seizure procedures. Tamsin Allen recounts owns 46 Clarifying the law on State Immunity in the European Court of Human Rights of her cases to illustrate the damage that is done when newspapers identify a person early in a criminal investigation. 48 Dishonesty and criminality Jessica states that the protection of journalists and their sources are the cornerstone of a fully functioning free press; Tamsin’s case shows what happens when that freedom is misused. 50 Baby love? Maternity discrimination in the workplace

Many clients come to us following receiving poor advice from another professional firm, possibly an accountant and often another solicitor. Alison Mackintosh sets out the range of our professional negligence work and some of the successes that have been achieved.

At a time of reduced public funding and limitations on the use of Conditional Fee Arrangements, I would like to thank my colleagues for their passion for justice, their commitment and their pioneering spirit which, in many instances, have secured successes for their clients and, in the case of some individuals, made their lives so much better.

David Harris, Chief Executive his former company Cambridge mainstream media had covered up. inception worked exclusively and Analytica had obtained data about closely with Cambridge Analytica. HIV+ pregnant women, ostensibly At the time Chris joined Cambridge He and Shahmir were convinced to work out why they were not Analytica he was in his early that Vote Leave had overspent and taking anti retro-viral drugs, but had twenties and doing a PhD in Fashion cheated in the campaign and that then deployed this data to target trend forecasting in London. AIQ had helped. Shahmir came to them in an election campaign by He is gay, vegan, a liberal with see us and showed us how a Google the former health minister, with progressive values. I asked him Drive shared by him and others discussions of profitable kick-backs how on earth he ended up working inside the Vote Leave campaign had in the form of investment offers in with these people. The explanation been altered in a way which looked national infrastructure. The pattern was complex, but part of it related highly suspicious and yet another was repeated around the world. to his intellectual curiosity and incredible part of the story unfolded. He told me how the company the benevolent potential of using had stolen medical data and information about people to affect Shahmir had been working as a leaked it in the Nigerian elections; their behaviour. There was also the volunteer on a youth outreach circulated a video of people being context – in 2013 no one had heard programme within Vote Leave murdered to vulnerable voters to of Steve Bannon, the Alt Right still after leaving University. Suddenly, stoke Islamaphobia and examined appeared to be a bunch of crazy old less than two weeks before the Trinidadian internet browser men and Trump was a washed up Referendum, his programme, histories to build up ‘pre-crime’ reality TV star. Chris stayed with the BeLeave, was given a huge donation profiles for the security minister. company for less than a year and of around £675,000 all of which left when it became clear how it was went straight to AIQ without even At the heart of all this was the use of enabling far right actors. When he touching the BeLeave bank account. DEFENDING WHISTLEBLOWERS individual data to distort elections. realised that its work in the US had AIQ was working in the Vote Leave Chris explained how the far right influenced the outcome of the 2016 Office on its digital strategies. At realised that in order to change election, he started to talk. the time, Shahmir assumed that politics, you have to change culture. everything was being done legally To do that, you need to know how Chris next explained to me that his as the lawyer at Vote Leave had ike many others, I had more like a musician or activist than between Robert Mercer and Steve people tick. The way to do that is information went even further than been advising the young volunteers. Lbeen captivated by Carole the former research director of a Bannon from the US and SCL, a to use their online and social media the vast landscape of corruption However, after the referendum Cadwalladr’s article in the Observer major international company. He company used to operating in a data, an incredibly rich seam of he had already revealed to me. His and following press coverage, about shadowy companies working told me over a series of meetings military context with the credibility golden information about their friend Shahmir Sanni had worked Shahmir realised he had been used to disrupt elections and by her about a complex web of military of old Etonians and military most intimate lives. Couple that inside the Vote Leave campaign effectively to commit electoral fraud. long and thoughtful investigations contractors, private intelligence connections. with disinformation and rumour, all headquarters, Vote Leave had Two of the Vote Leave officials into possible cheating in the firms and military surveillance individually targeted, and you have spent 40% of its whole budget on a involved are now senior advisors to Referendum campaign. During the technologies being deployed It sounded almost unbelievable, a uniquely powerful tool. When data firm, AIQ, which had since its Theresa May and the project was summer of 2017 I received a request against British and American voters. but Chris had kept a meticulous I asked how this differs from any from the Observer to advise one of He described corrupt deals in former catalogue of documents and the other sort of electioneering, or even her confidential sources. This source colonial countries, hacking and fixed entire story was fully supported by advertising, Chris explained that the was thinking of revealing his identity elections. He told me he suspected evidence. His explanations were techniques were similar to those and there was a potential conflict a cover-up inside Facebook and clear and consistent; his intelligence used in warfare and psy ops – to between his interests and the how Russian state intelligence may and strategic vision strikingly confuse and disrupt an enemy. interests of the media which meant have infiltrated his former company. obvious. He told me that there Advertisers might say that a brand of “IT IS IMPORTANT TO BE A VISIBLE QUEER PERSON WHO he needed independent advice. He said that this likely involved the existed a complex and dark web bottled water is delicious and fresh. DOES NOT BACK DOWN” largest data breach in Facebook’s of players who had surreptitiously Chris said that Cambridge Analytica I first met Christopher Wylie in history and that the players involved exploited voter data in numerous would find the most neurotic people October 2017. His hair was not pink were now inside the White House. countries around the world. I and ask them if they had heard at our first meeting, but he looked He explained the lethal hook up remember hearing that in Ghana, about the impending drought that

4 5 overseen by many of those who are they would be scooped, and my As is now well known, the now Ministers working on Brexit. role was to keep everyone talking publication had an impact that and calm. We needed to ensure that even we never fully anticipated. At the time, we felt this story was the authorities were given time to Just before publication, Facebook even bigger than Cambridge consider the information and take took the extraordinary decision to Analytica. Facebook was a side any steps to seize information. I was announce that it was suspending story – just one of the ways that also at this stage very concerned various actors, including Chris, from Cambridge Analytica had obtained about the safety of my clients Facebook. Facebook had not been and misused information about and about the pressures on them. centre stage in the story until it voters. Chris was going to be talking about did this and publicised the fact to Russian connections to his former its users via a press release. I was The first legal issue was relatively company, accusing powerful actors telephoned by its senior counsel simple – what information did Chris like Facebook and Steve Bannon and a vice president who demanded and Shahmir have, where and how of wrongdoing and I felt that during that Chris handed over his devices did they obtain it, and could it be the period just pre publication he for examination – they were disclosed? What were the risks was most at risk. He was living in clearly trying to position him, the of being sued for libel or breach London on a Tier 1 exceptional whistleblower, as the one to blame. of confidence, and were they at talent visa, but at that time he had I reminded them that they are not a any personal risk from criminal no job and no special security national authority and have no right investigations? But although the arrangements. We spent hours and to demand anything. Their decision issues were straightforward, the hours in the Bindmans’ office, putting to press release prior to the story factual context was incredibly the meticulous plans into play, effectively ensured an audience of complex. We decided that this organising documents, checking billions and rocket-launched the nuclear grade information should draft articles and supporting other stories. The value of Facebook’s be made available to the relevant whistleblowers. Chris and Shahmir stock fell £121 billion in the period authorities prior to publication – and were in some senses relieved to immediately after the publication so we started preparing statements be able to put their heads above and has never fully recovered. Their for the Information Commissioner’s the parapet, although they knew own reaction was at least partly Office and the Electoral Commission. there were risks to them personally. responsible for this. Luckily, they had retained an story. The day before publication, of sabotage. We all felt that it was worked, had sent a copy of the The lead up to publication was unusual degree of control over the The following week was spent Stephen Parkinson, now political intended to intimidate or punish Parkinson statement to the New a period of intense and fraught documents and information they working with Shahmir, preparing advisor to Theresa May working in Shahmir who was telling the truth York Times. We had no idea who activity. Chris had planned a two presented which meant that they at him for the story where he would No 10, but previously a senior official in the public interest. I immediately else might have it by this time, but stage reveal – the first week least had some leverage over the take centre stage. But yet again, in Vote Leave, sent a statement wrote to Dominic Cummings who if No 10 was sending it to major Channel 4 would show its incredible means and timing of publication. someone tried to get ahead of the to his friend Dominic Cummings removed the statement on receipt of international media outlets then undercover footage of Alexander who had run the digital strategy in my letter and to Stephen Parkinson clearly Shahmir no longer had Nix admitting how Cambridge Vote Leave. Dominic immediately explaining that this is private control over this most intimate Analytica worked, and Carole and published it on his blog. The information which must not be information and Stephen Parkinson the New York Times would publish made public. Shahmir was, for the was still doing his best to make her articles about Cambridge statement referred to the fact that time being at least, hugely relieved. it public. Shahmir was absolutely Analytica, fully attributed to Chris. Shahmir and Stephen Parkinson had devastated. He had to make The following week the Vote Leave “WE SPENT HOURS AND HOURS IN THE BINDMANS’ been in a short relationship. Stephen His family in Pakistan could have revelations would be published OFFICE, PUTTING THE METICULOUS PLANS INTO PLAY, knew that Shahmir is Pakistani, a been seriously endangered by this immediate arrangements to protect Muslim and that he had not come information being made public. his family in Pakistan and to go to and Shahmir’s identity would be ORGANISING DOCUMENTS, CHECKING DRAFT ARTICLES revealed. Everyone was twitchy, out to his family. He had even met see his mother to tell her about his AND SUPPORTING THE OTHER WHISTLEBLOWERS” the journalists, unused to working Shahmir’s mother and been told However, that same night we sexuality. He was pale and shaking collaboratively, were suspicious of to pretend he was no more than learned that the press office at in the office. He had never expected each others’ motives and concerned a friend. This was a deliberate act No 10, where Stephen Parkinson that he could be forced into coming

6 7 out to his family in this way. And about the significant vulnerabilities then two weeks later he was sacked our democracies face in a digitised by his employer, the Tax Payers world, he “has given us a chance Alliance, an organisation closely to do something about it before it’s linked to Vote Leave. Happily, our too late”. There has been a price Lessons learned: employment team was able to for Chris – he has been followed advise him in relation to that issue into gay clubs, threatened by Brexit and he has now, thanks to Peter activists, subjected to homophobic 1. Don’t try to get ahead of the story. On receipt Daly, won a whistleblowing claim abuse. But it is important, he says, to of a right to reply letter both Facebook against them in which they accepted be a visible queer person who does and Vote Leave tried to spike the story by that they sacked him because of his not back down. publishing their own information. It backfired. whistleblowing and his belief in the sanctity of British democracy and he As if this was not enough, Chris 2. The BBC is not interested in contentious will recover substantial damages. A was then contacted by another stories. The BBC has reported on Cambridge claim against No 10 for the outing is whistleblower with information Analytica, but only after others have in preparation. related to the Russian Embassy’s investigated and broken stories. It will not direct involvement with some of report the Vote Leave issues without insisting As a result of what Shahmir Cambridge Analytica’s clients in the that the law breakers themselves are given and Chris told the Electoral UK, including discussions of large equal prominence. This is drawing false Commission, its investigation came gold and diamond transactions equivalence and is disservice to public interest to the conclusion that Vote Leave with Arron Banks, the largest pro- journalism. had committed offences in the Brexit donor. We reported Banks Referendum Campaign. Changes to and his organisation Leave.EU to 3. Cross departmental and cross firm advice is the Google Drive were referred to the NCA after Chris was given key invaluable. The whistleblowers could draw on the National Crime Agency (NCA) for intelligence. This evidence is being the expertise of Salima Budhani, John Halford, further investigation. The national used by the US House Intelligence Mike Schwarz, Patrick Ormerod and Peter conversation, so utterly inflexible Committee, as some of the parties Daly at various times. We worked closely with on the question of Brexit, has now involved were regularly meeting lawyers instructed by the journalists and with started to shift a little – as Chris with Donald Trump and passing US lawyers. and Shahmir say – ‘Olympic cheats information to the Russian embassy. don’t get to keep their medals, why The dossier is also in the possession should voting cheats get to keep of the DCMS Committee who are their results?’ Coming from someone liaising with the US authorities. who believed in Brexit and worked for Vote Leave, this is significant. This was whistleblowing on a grand 5 hours by the Department for The NCA is also investigating. The scale with a huge global impact. been threatened with litigation by As for Cambridge Analytica, the Digital, Culture, Media & Sport European Parliament requested The strategic skills and resilience Cambridge Analytica and Facebook revelations led to its closure (DCMS) Committee as part of its Chris give evidence and the of these particular whistleblowers, - but in fact there has been not one and bankruptcy and its offices inquiry into fake news, testimony Trinidadian Parliament is also the involvement of incredible claim issued. The only litigation were raided by the Information which was described by the BBC’s requesting evidence. The Canadian journalists and the nature of the arising out of the whole matter veteran Westminster reporter as Commissioner’s Office (ICO). Parliament has conducted a wide- information and documents were has been Shahmir’s successful Investigations were instituted by “by a distance, the most astounding ranging and vigorous inquiry and their best protection. Our role was to whistleblowing claim. We anticipate the House Intelligence Committee, thing I have seen in parliament”. cross examined AIG, the digital make sure that the whistleblowers further claims for him against No 10 the Senate and House Judiciary We flew twice to Washington to strategists at the heart of the story. were not successfully sued and to for its shameful outing. TAMSIN ALLEN Committees, the Securities and provide documents and testimony TIME magazine listed Chris in this set up defences just in case. I had Partner, Head of Media and Information Exchange Commission (SEC) and to congressional authorities and year’s TIME 100 Most Influential fully anticipated that we would Law

the Federal Trade Commission instructed US lawyers to advise People. In the nomination, TIME be facing multiple claims – Chris D: +44 20 7833 7831 (FTC). Chris was interviewed for on the ongoing FBI investigation. summed up that in coming forward and the Observer had already E: [email protected]

8 9 of the Windrush generation (and lax approach to the evidence relied Secretary of State was that where because of repeated poor decision their children) who have been upon to substantiate a ‘cheating’ an individual has a positive finding making at the Home Office. adversely affected by hostile allegation has meant that innocent from a First Tier Tribunal judge that environment policies but to date no people have been wrongly accused. they did not use deception in taking Rather than prioritising fixing the compensation payments have been The impact on these individuals their TOEIC test, they will not be immigration system, ensuring THE HUMAN COST made. The National Audit Office has been immense. Many have disadvantaged by any subsequent that it treats individuals both fairly has just published a highly critical felt unable to return to their home period of overstay following a and humanely, it appears that the report on Windrush, finding that countries labelled a ‘cheat’ and TOEIC refusal. This should hopefully Home Office’s recent efforts have OF THE HOSTILE the Home Office wrongly classified want nothing more than to clear enable those affected to regularise been focused on managing public people as illegal immigrants and has their names of any allegations of their immigration position in the UK perception. Reports have suggested been slow to investigate errors and dishonesty. This has meant those and continue their studies, having that a team has been established ENVIRONMENT identify victims of its failings. affected have spent up to four years cleared their name. within the Home Office to manage in the UK in limbo, trying to defend cases which generate bad publicity STUDENTS themselves through the courts. HIGHLY SKILLED MIGRANTS for the department in light of Windrush. It should not however Another group of individuals Recently the case law has begun According to reports at least 1,000 take a scandal, such as Windrush or affected by the hostile environment to go in the students’ favour. In highly skilled migrants applying he concept of the hostile 1960’s migrants from many former TOEIC, for the right decisions to be is foreign national students. They December 2017, the Court of Appeal for indefinite leave to remain have environment was conceived in Colonies (now members of the made. T became the target of the hostile gave judgment in the case of Ahsan been accused of dishonesty leading 2010, when Teresa May was Home Commonwealth) were actively environment following a Panorama and others [2017] EWCA Civ 2009. to the refusal of their applications. Secretary. Initially aimed at so called invited to migrate to the UK to investigation in February 2014 which The Court held that those accused Applications have been refused ‘illegal migration’, it was a policy help rebuild the country after the exposed widespread cheating in of cheating in the TOEIC tests and where there were minor differences that Mrs May often repeated when Second World War. Thousands of TOEIC secure English language tests threatened with removal from the between the HMRC and Home questioned about Home Office migrants and their families settled provided by ETS. Such tests were UK had the right to challenge the Office records, which would not strategy for managing migration in, and became an integral part of often used by students to satisfy the decision from within the UK. have affected their eligibility for (both lawful and unlawful). The UK society. In 2009 a government visa requirements to study in the UK. leave to remain as a highly skilled hostile environment concept has decision was made to destroy Ahsan was closely followed by migrant, or where such errors spread into a network of policies and Home Office records making it As a result of the investigation, the Court of Appeal’s decision in have been rectified with HMRC legislation that have discriminated impossible for checks to be carried ETS informed UKVI that 56,000 Khan and Others [2017] EWCA Civ without any sanctions. In June against and, in some cases, out on a large number of mostly students had cheated or may 2009 in July 2018 which clarified 2018 the immigration minister destroyed the lives of migrants in elderly and innocent individuals have cheated by using a proxy to the approach to be taken in TOEIC Caroline Noakes MP confirmed that the UK. who suddenly fell foul of the new sit the TOEIC test for them. As a cases where allegations of fraud a review was being conducted by hostile environment. In the worst result, the Home Office took action have been made. In Khan three her department. On 22 November The hostile environment is an case scenarios, individuals have against at least 35,000 students appeals were listed to be heard 2018 the Home Office published the ASHLEY FLEMING embedded system of controls and been detained, deported or refused which resulted in some having their together in order to enable the review. The review concludes that Associate, Immigration, Asylum and Nationality restrictions on some of our basic entry to the United Kingdom leave to remain curtailed. Some Court to address issues arising the use of paragraph 322(5) of the social rights, affecting peoples’ despite the fact that they are lawful had their applications for leave to where a person had been accused Immigration Rules (which allows for D: +44 20 7014 2144 ability to find housing, receive residents of the UK and in some remain refused on the basis they of obtaining a TOEIC certificate refusal on the basis of a person’s E: [email protected] medical treatment, open bank cases, British citizens. The Home had previously cheated and others through the use of deception. The alleged conduct and character) is accounts. Inevitably mistakes Office has made some attempt to were withdrawn from their course, appeals were in fact resolved before justified in these cases. On a more have been made which have had repair the mistakes made; offering some having already completed the court hearing date by way of positive note it acknowledged that devastating consequences for many free of charge applications to various the majority of their studies. Most Consent Orders between the parties. there have been notable successes individuals. individuals, provided they can of those accused had no right of The Court of Appeal however for individuals appealing these provide documentation showing appeal against the allegations made gave judgment in the matter so decisions. However, not everyone ABIGAIL EVANS Perhaps the most high profile they settled (or had parents settled against them from within the UK. as to provide guidance for other has the right to appeal or the money Solicitor, Immigration, Asylum and victims of the hostile environment here prior to 1 January 1973. Theresa individuals similarly affected by the to pay for legal representation. Nor Nationality

are individuals of the Windrush May announced that compensation The broad brush approach taken by TOEIC scandal. Broadly speaking, should the overburdened Tribunal D: +44 20 7014 2087 Generation. In the 1950’s and would be available for individuals both ETS and the Home Office and the proposal offered by the system have to cope with appeals E: [email protected]

10 11 answers on behalf of the Grenfell No detail was given as to what kind participants to not provide an victims and yet there appears an of evidence the company needed account of their actions deprives the eerie silence from the corporate to see before it could comment victims of this. core participants who oversaw on the role the cladding, which it The Inquiry is working through the design and construction of had itself supplied, had in the fire. hundreds of thousands of the refurbishment of the Tower. Harley Facades (a subcontractor of documents and the police, who are Core Participant status is given Rydon for the refurbishment) offered simultaneously investigating, have by the Inquiry to those who have condolence to the victims of the fire. millions of documents. The process a significant interest or role in That was welcome but victims are is slow but could be made faster matters or maybe be subject to calling for far more than that. if some chose to speak up. As we explicit or significant criticism. The said to the Inquiry, ‘It is inhumane designers, manufacturers and As stated in our submissions to the to remain silent when so many seek constructors of the cladding façade Inquiry “The time has come -- indeed, understanding and answers, answers are obviously of great interest. Many is overdue -- for the contractors which are within the corporates’ gift.’” are understandably very interested and suppliers to clearly state their to know and hear from them now. positions, and also to respond Yet despite the clamour for answers to the positions taken by others. many have chosen to remain silent. Their stance that they need more than the documents they already All core participants were given the have before engaging at all with opportunity to make an opening any of the criticisms made of them statement. For the corporate is demonstrably untenable and and state core participants disingenuous.” implicated in the construction, refurbishment, and fire safety We are left only to speculate as to within the building, this statement why they have chosen to remain could have included a detailed silent but what is clear is the GRENFELL TOWER – TIME FOR description of their involvement and ongoing pain and anguish caused an acknowledgement of various to the bereaved who long to find failings by them, as well as providing answers and know the reasons THE COMPANIES TO SPEAK a commitment to answering the behind the worst peace time fire in questions this Inquiry has in an open the UK for over 140 years. and candid way. Active participation by the corporate Some, such as Studio E (architects core participants could save lives he search for answers as to why who has the answers? Does the residents are rightly anxious to know sub-contracted to work on the in the future. The knowledge and Tfire at Grenfell Tower spread so search for truth need to take so why they faced the loss of their refurbishment of Grenfell Tower) information they have as to what rapidly and so horrifically, killing 72 long? loved ones. The wider public and and Artelia (the agent appointed went wrong could be crucial now. by the TMO for the refurbishment people and injuring many others, is residents of other blocks, in which project), chose not to make a Asked by families we put their proving a long and slow process. On one level this is understandable: similar cladding was used, also statement at all. Some did, but concerns in strong terms “Despite reasons for the fire spread, issues deserve answers. Nobody wants to opening statements were so brief their words of condolence to the The Prime Minister announced on 29 of construction and cladding are see a repeat of Grenfell. as to be of little or no value. These victims, these corporates have no June 2017, just 14 days after the fire, complex. The mechanisms of such are on the public record: CEP desire to assist this Inquiry, even that there would be a Public Inquiry. rapid fire spread are issues for Surely all of this is obvious and (the company which supplied the though their participation could experts to look at and this takes beyond question, and would mean cladding and the window frames) save lives in the immediate future.” Things started fairly promptly in time. But the call for answers is that all would want to work towards said it needed to see more evidence Furthermore, the victims of this EMILY-JADE DEFRIEND Solicitor, Actions against Police and State that the Public Inquiry held its first urgent and important. finding those answers? before it could make an opening tragedy are entitled to know how hearing on 14 September 2017. Yet statement. this fire happened. The decision D: +44 20 7014 2148 E: [email protected] over a year later where are we and The bereaved, survivors and We have been calling for those made by various corporate core

12 13 However, the Prime Minister has or inquiry with coercive evidence- a second referendum? any extension of the negotiating evaded the issue, indicating on 3 gathering and witness-compelling period and that “revocation by a August 2018 that Parliament had powers. Very unusually, Hillary In the Article 50 context, the last Member State of the notification of given the Electoral Commission and Clinton, former US Secretary of these is a legal as well as a its intention to withdraw… reflects a Police all the necessary power to of State and 2016 presidential political question in respect of which sovereign decision by that State to address public concern about the candidate has recently criticised Bindmans obtained compelling retain its status as a Member State EU Referendum and that everything our Government for failing to “call legal advice last year, in the form of of the European Union...”. The Court was “being dealt with” satisfactorily. out” Russian involvement in the EU the “Three Knights Opinion” (whose stressed the importance of the Referendum campaign. authors included a former CJEU right of any state to change its mind This is legally wrong. Neither the Judge and Advocate General). But about leaving the EU, commenting BREXIT: RIGHTS TO Electoral Commission nor the Police The irregularities during the EU to resolve all doubts, two more of “…given that a State cannot be forced have the powers of an inquiry and Referendum campaign have our clients – Tom Brake MP and to accede to the European Union the scope of their investigations is also made some MPs sceptical Christopher Leslie MP – sought a against its will, neither can it be A FAIR VOTE AND A also limited to breaches of the law about over-reliance on the ‘will definitive answer from the CJEU forced to withdraw from the European as it stands (and the law is out of of the people’ as a justification itself at a hearing on 27 November Union against its will.” CHANGE OF HEART date). Although the National Crime for proceeding with Brexit come 2018. This followed legal action Agency and the Metropolitan Police what may. Others have questioned earlier this year when they joined The UK’s legal landscape may have since begun investigating a whether the Draft Withdrawal forces with Members of the never be the same after the handful of specific offences, they are Agreement and the outline trade Scottish Parliament, Members EU Referendum, but Bindmans doing so in private and have been deal for the future will be in the of the European Parliament and lawyers remain pioneers, seeking clear that they cannot look at the national interest or, if there is no deal a Scottish MP to argue that the democratic accountability, as well broader issues that Fair Vote has agreed at all, whether Brexit should Scottish Court of Session ought to as expert guides for the individuals, raised. occur. Ultimately, many believe that refer their questions about Article 50 organisations and businesses indmans’ client Fair Vote is bearing in mind the “need to “if a democracy cannot change its revocability to the CJEU. Rejecting struggling to navigate it. a campaigning NGO formed maintain the people’s faith in our B Supported by Bindmans, Fair mind, it ceases to be a democracy” the Government’s argument that to press for accountability and democracy” and later pressed for Vote has brought a judicial review words first spoken by David Davis the reference was ‘hypothetical’ reform in the light of Chris Wylie’s that to happen in the open at a challenge to the Prime Minister’s MP in 2012 - in short, that there and so should not be made, revelations about the undermining public inquiry which would have the failure to set up an inquiry here in should be scope for changed minds Lord Drummond commented “I of democratic processes during the power to compel witnesses to give the UK. The first step in the process and hearts in the Brexit debate. find it impossible to hold that the EU Referendum campaign. Some of evidence and demand documents. was a 49 page pre-action letter question of the withdrawal of the this activity involved law-breaking This is currently the only way in which Bindmans painstakingly As confirmed in theMiller case (in article 50 notification is a matter on a massive scale; some of it was for the UK to have its equivalent explained how public concern has which Bindmans’ clients were active that is irrelevant to Parliament’s completely lawful, but deeply of Special Counsel’s Robert arisen and why only a public inquiry interested parties), Parliament, not deliberations… It is a matter that may, unethical and undemocratic; some Mueller’s investigation into the can adequately address it. the Government, must make the in some circumstances, be relevant of it was borderline. Much of it way democracy was undermined ultimate decisions on whether to to the way in which some Members involved foreign companies and during the US Presidential Election. So, what next? At the time of proceed with Brexit and on what of Parliament cast their votes on a there is also compelling evidence of Ultimately, such an inquiry could writing Fair Vote’s claim is awaiting terms. It has yet to make those matter of fundamental importance to interference by Russian actors. Huge make balanced, apolitical and a permission decision by the decisions. the future of the United Kingdom.” amounts of money were spent, evidence-based recommendations Administrative Court, but in the including unprecedented donations for root and branch reform of political arena, many are already But what are its options now the These remarks were endorsed from a single person, Arron Banks. election and referendum law which persuaded of the case for an inquiry. terms of the Draft Withdrawal by the CJEU in an expedited There is serious public concern – has failed to keep pace with social Both Tom Watson MP, the deputy Agreement are known? Are they judgment given in December. and rightly so. media, data manipulation and the leader of the Labour Party, Damian binary - to take any deal on offer Fully endorsing the position taken JOHN HALFORD ability of foreign organisational and Collins MP, the Conservative Chair or leave without a deal? Or can by the MPs, the Court held that Partner, Joint Head of Public Law and On 5 July 2018, Fair Vote wrote states to manipulate democratic of the Digital, Media, Culture and Parliament have a change of heart unilateral revocation of the UK’s Human Rights to the Prime Minister asking for processes to their own ends. Article 50 notice was permissible Sport Committee, have called for as choose a third option - revoking D: +44 20 7014 7827 these matters to be investigated the establishment of an investigation the Article 50 notice – perhaps after right up to 29 March 2019 or during E: [email protected]

14 15 “Koshka’s case is an KOSHKA DUFF all-too-familiar example of individuals being repeatedly failed by the system.

arly evening in May 2013, several months, the case went to breasts were partially exposed as EKoshka Duff saw a young boy trial in late 2013. On 14 November she was carried through the custody surrounded by police officers the court found Koshka not guilty area. ” on an East London estate. She of all the charges against her. It There had never been any basis for approached, with the intention of concluded that her actions in trying carrying out a strip search, which passing the boy a card containing to hand the young man a legal was a completely horrifying and details of solicitors he could call advice card did not constitute traumatic ordeal. should he need it. Taking issue with obstruction. As for the alleged her actions in trying to hand the assaults, the court stated that they Koshka complained about her card over, the officers proceeded to believed Koshka’s account over experiences in 2014, after the panel accepted the arguments put treatment while in the police station. arrest her, for obstruction, but also those of the officers’. conclusion of the criminal case forward by his barrister that there For public confidence in the police for assault PC after it was claimed against her. First, the Metropolitan was no case to answer. to be in any way restored after such she had kicked one of the officers Perhaps more shocking even than Police carried out an investigation awful events, what was needed was during her arrest. She was placed Koshka’s prosecution had been her which unsurprisingly absolved all That it took over five years for the a prompt and rigorous investigation in handcuffs and forced on to her treatment while at the police station. officers of any blame- despite the case to reach a misconduct hearing carried out in a fair-minded manner. knees. She was then transported CCTV footage shows her to have findings of the court. suits no-one. The delay of course What transpired was a painfully to Stoke Newington Police Station been entirely passive throughout impacted on Koshka, who was slow and unsatisfactory complaints caused very great additional distress where she was not interviewed until her time there. Despite this, after An appeal against the complaint process. Koshka remains concerned by having to wait and frequently the next day. only a short while at the station findings of the Metropolitan Police that there is a lack of proper scrutiny to revisit the events. While the the custody sergeant provided his was promptly lodged. In May 2017 and accountability in respect of the officers in this case may attract Koshka was shocked to find that authority for a strip search to take the IPCC (now the IOPC) finally use of strip searches. To this day, not only had she been charged place. Koshka was told that the provided its decision, concluding little sympathy, they will not have she has still not heard directly from with the offences for which she had purpose of the strip search was to that the custody sergeant had a enjoyed having the investigation the officer who authorised the strip been arrested, but that a second ascertain her identity. case to answer for gross misconduct going on for so long. And then, of search. Neither did the misconduct assault PC charge had been tacked During the search the officers used in relation to his decision to course, there is the cost of such a panel who decided there was no on. There had been no previous scissors to cut off Koshka’s clothes authorise the strip search. lengthy investigation to the public case to answer against him. mention of this further offence. The and forcibly removed her piercings. purse. officer who, weeks after the event, They twisted her around and The Metropolitan Police was We are currently advising her on a was now claiming to have been the touched her breasts and between in no hurry for the subsequent Koshka’s case is an all-too-familiar victim of the second assault was her legs. They applied force misconduct hearing to take place example of individuals being possible challenge of the panel’s somehow unable to find his original throughout the search which caused and in the event did not facilitate it repeatedly failed by the system. decision in order that she may finally obtain at least some of the answers LAWRENCE BARKER notes of the incident. The allegations her pain and lasting injury. Following until August 2018, a full 15 months Those failings of course started Senior Caseworker, Actions against Police made no sense. the search she was placed into a after the IPCC’s decision. In the end, with her arrest, for which the court she has been seeking for the past and State five years. paper suit. However, this was not the custody sergeant did not even found there had been no basis, D: +44 20 7014 2127 After an extremely stressful wait of done up properly, meaning that her have to give evidence after the and continued with her shocking E: [email protected]

16 17 PROFESSIONAL CAN YOU CLAIM COMPENSATION imprisonment, the victim can not at mediation. NEGLIGENCE FOR NEGLIGENT IMMIGRATION only appeal against the conviction ADVICE? but claim compensation for loss of COMPENSATION FOR POOR TAX liberty and other damages. ADVICE This year we have acted for many individuals who have suffered loss DO YOU HAVE A REMEDY IF A We continue to be instructed by caused by negligent legal advice PROPERTY TRANSACTION GOES individuals who have received on their immigration status and WRONG? poor or negligent service from applications for extended leave their accountants. Very often the to remain. The failure to give the While we deal with a wide range complaints concern negligent correct advice can result in long of claims against solicitors, there tax advice given on the sale of a Do you know what to do term unemployment, considerable remains a steady flow of claims business, and in particular advice on stress and sometimes wrongful relating to property transactions. how individuals can structure their imprisonment or deportation. We have seen a noticeable increase financial transactions to maximise if you have received bad advice in claims concerning the purchase the available tax reliefs. This can We recently acted for a highly of new build properties. When be extremely important when an qualified professional individual who the purchaser cannot rely on the individual is retiring. from your professional advisers? found herself in this predicament experiences of a previous resident due to poor legal service. As a he or she relies heavily on the We recently assisted an individual in result of becoming an “over stayer”, results of searches and enquiries obtaining a significant payment from and through no fault of her own, she made by the conveyancing solicitor. his accountants when they failed to lost her long term well paid job. She deal with his US tax affairs in a timely had to instruct alternative solicitors We recently acted for an individual way, resulting in punitive fines and to sort out her application and was who purchased a new build interest. forced to incur additional legal costs. penthouse property in London, We secured a significant six figure which the developers had marketed Of course not all poor professional settlement for her without formal as a luxury development. In fact service will result in a formal proceedings. It was clear that there the property was riddled with claim, and we may advise you his year we have been can be daunting. Sometimes the such as solicitors, barristers and was no defence to the claim. defects and there were numerous that a complaint to the relevant Tinstructed on a wide range issues are complex and require accountants to obtain professional problems which could have been Ombudsman or professional of negligence claims against specialist expert advice. We work indemnity insurance to insure We have also seen an increase in detected by his solicitor had the regulatory body is the best way professional advisers. We have closely with specialist professional against the claims which are made the number of claims arising from appropriate enquiries been made. forward in some circumstances. poor legal advice given to refugees taken on new claims against negligence barristers so that we against them. This means that when No final building consent had been who may have entered the country obtained for part of the building If you feel you’ve been let down, accountants, solicitors, barristers can be effective and maximise the a successful claim is made against, with false identity documents. This and the lift did not function or meet or have been given poor advice and construction professionals. prospect of an early settlement by for example, a solicitor, their insurers is a criminal offence punishable by the statutory safety guidelines. The by a professional, don’t hesitate to There has been an increase in presenting the claim as persuasively will pay the damages, and difficult imprisonment but there are some purchaser had to climb seven floors contact our team today. the number of claims concerning as we can. We appreciate that enforcement issues are avoided. defences that a refugee can rely on. to his flat and the quality of the negligent immigration advice and for many individuals, the cost of A competent barrister or solicitor workmanship was so bad that at one a steady flow of instructions by instructing specialist advisers can We have consistently found should be well aware of how a point raw sewage was flowing into individuals who have suffered be prohibitive so when we consider that when a claim is strong, the charge relating to the possession his property. He had to relocate for the consequences of negligent there are strong prospects of professional indemnity insurers of false identity documents can be several months while the property conveyancing. success, we will consider acting will take a commercial view and defended. If the wrong legal advice was made habitable. Our valuation under a CFA arrangement (“no win, settle the claim quickly to avoid the is given, the individual can be expert confirmed that the defects ALISON MACKINTOSH We know that the prospect of no fee”) and will instruct barristers costs of stressful and prolonged Solicitor, Professional Negligence imprisoned, detained or deported. If had caused a significant decrease bringing a claim against professional who will also act under a CFA. proceedings. it can be proved that the negligent in the value of the property. We D: +44 20 7014 2173 advisers, and the costs of litigating, It is compulsory for professionals E: [email protected] legal advice caused the wrongful settled the claim for a six figure sum

1818 19 hospital for emergency treatment. standards of duties and Julian was driven to Greyfriars Police responsibilities in relation to his Station. He remained unresponsive decision to send Julian to Greyfriars “THE POLITICAL SUPPORT AND SOLIDARITY THAT in the van and, after a period of time Police Station instead of a hospital, JULIAN’S FAMILY HAVE RECEIVED OVER THE LAST at the station, an ambulance was he was provided with a final written FIVE AND A HALF YEARS, PARTICULARLY SINCE THEY finally called. notice. The custody sergeant had not even attempted a basic enquiry SET UP THEIR FAMILY CAMPAIGN, HAS BEEN REALLY Julian had sustained a broken of, “Are you ok?” to Julian before SIGNIFICANT IN HELPING THE FAMILY PERSEVERE neck and a severe spinal cord sending him to police custody. THROUGH THE VARIOUS LEGAL PROCESSES THEY injury; these injuries caused him NEEDED TO ENGAGE IN.” to suffer a cardiac arrest and a The political support and solidarity serious brain injury due to a lack that Julian’s family have received of oxygen reaching his brain. He is over the last five and a half years, now paralysed with permanent brain particularly since they set up their given the family opportunities to damage. He has spent the last five family campaign, has been really share Julian’s story widely, it has years in a residential care home, significant in helping the family where he remains in a vegetative persevere through the various legal also ensured that the family know state. processes they needed to engage they are not alone in this long fight in. for justice. We have been working with Julian’s mum and family in their bid to Julian’s family were first inspired to The misconduct hearing was not hold the police force and officers speak out about what had happened formally about who caused Julian’s to account since that devastating to Julian, in 2015, when they became injuries; and although Julian’s family JUSTICE FOR JULIAN night. It has been a long and hard aware of the Black Lives Matter have expressed their relief that struggle for them so far. Three and movement in the USA. some of the lies have been exposed, a half years of excruciating delay enabling them to get closer to the COLE was due to the amount of time When Julian’s mother, Claudia Cole, truth, their fight for justice will not the Independent Office of Police saw a photograph of Freddie Gray end until they can prove who is Conduct (‘IOPC’) took to investigate. lying in an American hospital, she responsible for causing Julian’s Finally this year, five and a half years thought to herself “that’s Julian, catastrophic injuries and until they after the incident, a misconduct that’s my son”. Claudia wanted the have had to answer for what they hearing was held for four of the world to see the photograph of did in a criminal court. n the early hours of the morning of the Nightclub’s security team, police officers involved. Julian immediately after he was Ion Sunday 6th May 2013, Julian and on a second occasion by police hospitalised because the images and some of his friends who were officers. On 22 October 2018, after an eleven were almost identical. The family RACHEL HARGER Solicitor, Actions against Police and State enjoying a night-out at Elements day misconduct hearing, findings took part in a solidarity event outside of gross misconduct were made by the American Embassy to show their Nightclub on Mill Street in Bedford CCTV footage shows that, after D: +44 20 7014 2101 the disciplinary panel against PC support of Freddie Gray’s family E: [email protected] were asked to leave. Initially, they being pinned to the ground by Hannah Ross, PC Nicholas Oates whilst also raising awareness that walked away but then Julian, police officers, Julian becomes limp and PC Sanjeev Kalyan following what had happened in Baltimore seemingly intent on requesting a and appears to be unconscious as their breaches of standards of had also happened here. refund, returned to the club. officers carried him across the road honesty and integrity in relation to towards a police van with his legs their descriptions of the incident In turn, the family has received Crucial moments of what took place dragging behind him. Julian was involving Julian. The officers were all incredible support from the UK JULES CAREY next are not captured on CCTV; out in the back of the police van dismissed without notice. Black Lives Matter Movement, Partner, Head of Actions against Police however, it is known that he was and one of the officers, a Sergeant, politicians including their local MP, and State

forcefully taken to the ground twice; decided that he should be taken to The panel also found that PS and a number of grassroots activists D: +44 20 7014 2092 on the first occasion by a member the police station rather than to a Andrew Withey had breached and campaigns. Not only has this E: [email protected]

20 21 SEARCH, SIFT AND SEIZURE ADOPTING AN ADULT OF LEGALLY PRIVILEGED AND JOURNALISTIC MATERIAL

hen we talk about adoption Sometimes adopters are step- egally privileged and journalistic privilege and can therefore be The procedures for search, Win the UK, the scenario in parents; sometimes they are quite Lmaterials are afforded special released into the investigation. sift and seizure are complex mind will usually be that of a baby “WE ARE LESS LIKELY TO extraordinary professional carers protection. This is because free and and inconsistent. Procedures or toddler who, for whatever reason, IMMEDIATELY PICTURE A who feel that a vulnerable young frank communications between Confidential journalistic materials are spread across a number of is unable to grow up in the care of YOUNG MAN OF 18 YEARS adult in their care will not stop clients and their legal advisers are are protected as ‘excluded material’ statutes, schedules and statutory their biological parents. Adoption OLD AS THE ADOPTIVE needing love and support once a cornerstone of the right to a fair and non-confidential journalistic instruments, which create a - an often controversial priority of they reach a certain age and that trial and a fully functioning legal materials as ‘special procedure patchwork of powers, along with ‘CHILD’.” the coalition government at the adoption is the right way to meet system. Similarly the protection of material’, provided they are not held noticeable gaps. For example, as start of the decade - is recognised those needs into adult life. What journalists and their sources are the in furtherance of criminal conduct a matter of practice, independent by professionals and the family is clear from each of the cases cornerstone of a fully functioning (s.11 and 14 PACE). Unfortunately, counsel are instructed to assess courts to sometimes be the best THE CIRCUMSTANCES OF ‘YOUNG that I have been involved in is that free press and democracy. whether a warrant can be issued claims that such materials way to offer these young children ADULT ADOPTION ORDERS’ adoption of a young adult has in relation to excluded or special have been seized, but the the prospect of a stable and loving the potential to be every bit as Very broadly, privileged materials procedure material depends on who independent counsel process ‘forever family’ when nothing else are materials to which legal advice makes the application and under In my work at Bindmans I have seen meaningful and life-changing as the and its parameters are not set out will do. or litigation privilege attaches, which statute. and acted in a number of varied archetypal adoption of an infant. anywhere in statute. This topic is unless they are held with the cases where the family court has the subject of an illuminating Law We are less likely to immediately intention of furthering a criminal For example, under Section 8(1) recognised that due to the particular Commission Consultation Paper picture a young man of 18 years purpose (s.10 Police and Criminal (d) PACE , a search warrant cannot vulnerabilities, specialist medical (Law Commission Consultation old as the adoptive ‘child’. While Evidence Act 1984 ‘PACE’). A search be issued to a police constable requirements, or background Paper No 235 on Search Warrants not common, English family law warrant cannot be issued for for excluded or special procedure circumstances of a young adult, an dated 5 June 2018), whose aim is does permit the adoption of older privileged materials nor can they be material and nor may this material adoption order is necessary to meet to consolidate and modernise the teenagers providing that the seized under police officers general be seized during the execution of their life-long welfare needs. existing law and render the process adoption application is made to powers of search and seizure (s. 18, a warrant. Surprisingly, for other more transparent. Reform is well court prior to the subject child’s 18th 19, 20 and 32 PACE). types of investigator, a warrant may Immigration considerations overdue. birthday and that the adoption order be issued. Like privileged material, sometimes come into it, as adoption is made prior to him turning 19. However, privileged materials where there is mixed material, the by British parents can (if the can be seized when comprised above seize and sift powers apply. When considering any adoption adoption order is made before the in something else which might But in contrast with privileged the family court’s paramount age of 18) lead to a child gaining lawfully be seized and it is not materials, excluded and special consideration must be the child’s British nationality and the ability reasonably practicable for the procedure materials can be seized welfare not just through his or her to remain in the UK. Of course the property to be separated (s. 50 using general powers of search childhood but throughout his or her wishes and feelings of the young and 51 Criminal Justice & Police and seizure, which raises questions life, and sometimes there will be a adult concerned will always be of JAMIE NIVEN-PHILLIPS Act 2001 ‘CJPA – known as ‘seize about whether the use of these JESSICA SKINNS Solicitor, Family and Matrimonial Associate, Crime, Fraud and Regulatory pressing welfare need for an older huge importance, as will be their and sift’). Independent counsel is search powers to seize journalistic teenager to legally become part of relationship with the prospective D: +44 20 7014 2098 usually instructed by the police material is ECHR compliant. D: +44 20 7833 7838 E: [email protected] E: [email protected] an adoptive family. adopters. to determine which do not attract

22 23 BETTER COMMUNICATION: THE ROUTE TO MORE SATISFIED NHS PATIENTS?

hat motivates a patient to to harm for one or more patients Remarkably, the authors of the NHS similar happening to other The study suggests that in Wmake a claim against the receiving NHS-funded healthcare”) study stated: “It is difficult to dispute patients; seeking to improve patient safety NHS? A recent study by the NHS reported between October 2016 and these sentiments and we do not wish „„ seeking an explanation of what an additional benefit would be points to frustration with poor September 2017. Of these, 496,709 to.” happened; achieved by improving overall communication as a major factor. (26.2%) were reported as causing „„ seeking an apology for what communications with patients. harm to the patient. This trend has Contrary to public perception the occurred; The NHS recently sought to find out got worse over recent years. study noted that approximately 90% „„ seeking to hold the clinician to NHS Improvement have recently what motivated people to complain of people who experienced a safety account; and appointed Dr Aidan Fowler as the about their services. Through The study reported that those incident in the NHS did not opt to „„ frustration with the NHS National Director of Patient Safety. research, a survey of, and interviews patients making a complaint “rarely make a claim for clinical negligence. handling of the incident. with, patients they reached expected exceptional levels of Of the remaining 10% the report Their aim is to “give patients conclusions that broadly overlapped ‘customer service’ in these instances. concluded the main drivers for In summary, the study highlighted consistently safe, high quality, with the extensive experience Instead, they described a sense that members of the public to make a the importance of clear and compassionate care within local of the specialist Medical team at the service was not achieving certain claim were: thorough explanations of patient health systems that are financially Bindmans. basic levels of communication, safety events and authentic sustainable.” compassion and customer service.” „„ seeking to prevent something apologies to the public by NHS staff. The NHS report ‘Behavioural insights It is anticipated that the findings in into patient motivation to make A stand out observation of the report this NHS report will inform the plan a claim for clinical negligence’, was that about 80% of those who to improve standards of care and published in August 2018, reveals responded to the survey felt a sense reduce the type of harm to patients some alarming statistics about the “CONTRARY TO PUBLIC PERCEPTION THE STUDY of frustration with the handling of that leads them to seek help and number of patient safety incidents. the safety incident. assistance from Bindmans. NOTED THAT APPROXIMATELY 90% OF PEOPLE WHO

The report states that there were EXPERIENCED A SAFETY INCIDENT IN THE NHS DID NOT This observation chimes with our Dr DARREN CONWAY PhD 1,895,834 patient safety incidents OPT TO MAKE A CLAIM FOR CLINICAL NEGLIGENCE.” experience when listening to people Solicitor, Clinical Negligence and (where the NHS define an incident explain what has happened to them, Personal Injury

as “any unintended or unexpected and why they have sought our help. D: +44 20 7014 2062 incident that could have or did lead E: [email protected]

24 25 Parliament the Government stated that SCPOs were not intended, and would not be used as “a soft “WHEN GRANTING AN APPLICATION FOR A SCPO alternative to prosecution stating that there’s been much mistaken THE COURT MUST HAVE REASONABLE GROUNDS comment about these orders as a TO BELIEVE THAT AN ORDER WOULD PROTECT THE way of law enforcement to get round PUBLIC BY PREVENTING, RESTRICTING OR DISRUPTING troublesome prosecutions…that is not INVOLVEMENT BY THE PERSON IN SERIOUS CRIME IN the intention”, (Baroness Scotland 7 ENGLAND AND WALES. “ February 2007 Hansard HLCOL.728).

There is clearly a significant difference between seeking an order in the Crown Court against a Defendant who has just been ignored by the CPS when seeking convicted of a serious offence and an order to prevent attendance at an application to the High Court a demonstration opposing the visit against a person where there has of President Trump. It was possible been no such conviction. When to argue that there is insufficient considering whether an order should evidence to justify the making of be sought in such circumstances such an order as the client was too ill it will be necessary to be satisfied to pose a threat to President Trump that to do so would be just and had no interest in his impending visit proportionate in terms of the Human and was voluntarily confined to his Rights Act. A relevant questions is : in home due to anxiety issues-it was the circumstances of this Defendant, WHAT IS A SERIOUS CRIME not appropriate or proportionate to are there reasonable grounds to make the order sought. believe that there is a real risk that this Defendant will be involved in PREVENTION ORDER? This hastily thought out application further conduct falling within the had to be withdrawn ultimately and Act from which the public requires it highlights the dangers of trying protection? to predict prospective acts, without a thorough evaluation of the risks. Serious Crime Prevention Order person has been involved in serious for a SCPO the Court must have A Breach of a SCPO without It should be an object lesson in SAIMO CHAHAL QC (HON) A (SCPO) is made under the crime whether in England and Wales reasonable grounds to believe that reasonable excuse constitutes an Partner, Joint Head of Public Law and how not to rush to conclusions and Serious Crime Act 2007 as amended or elsewhere. Where the offence an order would protect the public by offence punishable on summary Human Rights how the SCPO cannot be used as by the Serious Crime Act 2015 on was committed in a country outside preventing, restricting or disrupting conviction by up to 12 months D: +44 20 7014 2055 a method of law enforcement by an application by the Director of England and Wales an offence involvement by the person in serious imprisonment, a fine not exceeding E: [email protected] the back door, without clear legal Public Prosecutions, the Director of under the law of the other country, crime in England and Wales. Implicit the statutory maximum or both. On grounds and the evidence to back the Serious Fraud Office, and other which would have been an offence in the second test is a requirement conviction on indictment by up to 5 the claims up. specified persons if a person has if committed in England and Wales, that there are reasonable grounds to years imprisonment or a fine or both been convicted of a serious offence and would have fallen within the believe that there is a real risk that or in the High Court on a standalone provisions of the Act which the Court the person will be involved in further WHAT WENT WRONG? application if the person has been considers sufficiently serious to be conduct falling within the Act from ALAA ABDOUN involved in serious crime. treated as such will come within the which the public require protection. In a recent case (the client does not Trainee Solicitor, Public Law and Human remit of the applications. wish to be named), unfortunately Rights

In the case of the High Court the In the course of the passage of the it appears that all of this helpful D: +44 20 7014 2164 Judge must be satisfied that the When granting an application Serious Crime Bill in both Houses of advice and guidance was simply E: [email protected]

26 27 Brexit for family law in a deal and no- NO DEAL SCENARIO jurisdiction, the Government replicate the current reciprocal deal scenario. proposes to incorporate the arrangements. Maintaining a The Government published a jurisdictional bases for divorce reciprocal arrangement with the EU DEAL SCENARIO technical notice in September in BIIa into domestic law. is undoubtedly preferable. 2018 setting out its proposals for Notably, the UK would not apply DEAL OR NO DEAL: In July 2017, the European Union family law in a no-deal scenario. the lis pendens rules, which Bindmans’ family team is closely Withdrawal Bill was introduced. The technical notice states that requires courts to halt divorce involved in discussions about the Initially, it was proposed that, post- the UK would not incorporate the proceedings if an EU court has shape of family law post-Brexit; FAMILY LAW POST- Brexit, the Regulations would be Regulations into domestic law in a already begun to hear a case. Amy Rowe as a member of the incorporated into domestic law. no-deal scenario. Instead, the UK Instead, the UK courts would Resolution International Committee Practically speaking, this would would revert to domestic legislation only stay divorce proceedings and the International Family Law BREXIT mean that the UK would recognise supplemented by the Hague if there was another more Committee, and Olivia Piercy and enforce EU decisions unilaterally Conventions. I will set out below appropriate forum (the forum through her membership of the because the Bill could not bind the the impact of a no-deal on different conveniens principle). Resolution Brexit Working Party. EU to a reciprocal relationship. This areas of family law: „„ Maintenance: jurisdiction in would put families in a vulnerable maintenance cases would Though the implications for Brexit position because there would no „„ Children: The 1980 Hague vary depending on the type ross-border family disputes brought in two different member on family law are still unclear, it guarantee that UK decisions would Convention on the Civil Aspects of maintenance sought and involving only EU member states, which in turn prevents is hoped that the government C be recognised and enforced by EU of International Child Abduction where the case was brought. states are currently governed by there being inconsistent will negotiate a deal during the member states. There would also provides a mechanism for the The government also proposes EU Regulations that are directly transition period that maintains the judgments about the same be a risk that parallel proceedings return of children to their home that the UK would participate EU’s reciprocal obligations to the UK applicable to English law. The main issue in different jurisdictions. in the UK and EU would produce country in child abduction in the 2007 Hague Convention in order to ensure legal certainty for EU Regulations (‘the Regulations’) „„ They provide a system for inconsistent decisions. cases. The 1996 Hague on the International Recovery of families in cross border cases. that relate to family law are: recognising and enforcing Convention on Jurisdiction, Child Support and Other Forms decisions of the courts in one Following these concerns being Applicable Law, Recognition, of Family Maintenance, which „„ Council Regulation No. member state in the courts of raised in Parliament, the government Enforcement and Co-operation would provide a framework 2201/2003 (BIIa). BIIa deals another, for example, in relation indicated that it would remove in Respect of Parental for enforcing UK maintenance with matrimonial matters and to maintenance to be paid or for the automatic recognition of EU Responsibility and Measures decisions in the EU. matters of parental responsibility contact between a parent and decisions if a reciprocal arrangement for the Protection of Children „„ Domestic violence: the UK for children. child. cannot be agreed with the EU. establishes jurisdictional rules will recognise EU equivalent „„ Council Regulation No. 4/2009 „„ They establish judicial for cases involving children. domestic violence injunctions (the Maintenance Regulation). cooperation between the courts In November 2018, the Government It also provides a mechanism but not vice versa. There The Maintenance Regulation of member states to enable published its draft withdrawal for the transfer of proceedings are concerns that a lack of deals matters relating to courts to share information, for agreement, which confirmed that relating to children and the reciprocal enforcement of maintenance obligations example, to assist with returning for the duration of the transition recognition of orders relating to domestic violence injunctions AMY ROWE between family members an abducted child to their home period until 31 December 2020, the children. The 1996 Convention will put British citizens returning Partner, Head of Family and Matrimonial including for spouses and country. Regulations will remain in force. will broadly replace the to the UK from EU member D: +44 20 7014 2126 children. This will give some time for the UK provisions of BIIa in relation to states at risk, where they have E: [email protected] Crucially, the current system to agree reciprocal arrangements cross-border children disputes. been subjected to domestic The Regulations apply to family promotes the welfare of families by with the EU. It is also helpful that „„ Divorce: the 1970 Hague violence. The government is cases in the following ways: ensuring that there is legal certainty the European Council published Convention on the Recognition considering enacting a statutory in relation to family matters across guidelines in March 2018, which of Divorces and Legal instrument to deal with this „„ They establish whether a court EU borders. refer to exploring options for judicial Separations only allows for issue specifically. can hear a dispute, in other cooperation in family law matters the recognition of UK divorces words whether the court has Family practitioners are therefore post-Brexit. in eight EU member states Although the Government’s plans CLARA BARRY BORN Trainee Solicitor, Family and Matrimonial jurisdiction. The rules about concerned about the impact of because some EU member for a no-deal scenario will achieve jurisdiction help to prevent the Brexit on families and in this article states have not signed up to this some legal cooperation between D: +44 20 7014 2082 E: [email protected] same set of proceedings being I address the possible outcomes of Convention. In terms of divorce the UK and the EU, it will not

28 29 on Hannah’s life. She became them to Court the following day, depressed, dropped out of which she did. However, it was too Hannah was finally awarded university and was unable to work. late. Hannah’s ex-partner made a compensation by the CICA and She moved house and changed successful application to the Court succeeded in a civil claim against her name, in the hope that her ex- for the trial to be discontinued on the police for misfeasance in public partner would not be able to locate the grounds that such late service office, in relation to their offensive her. However, after following her of vital evidence amounted to accusation that she was to blame home one day he began turning an abuse of process. The trial up at her doorstep unannounced, collapsed, and Hannah’s ex-partner for the collapse of the trial, and for sending her abusive texts and walked free. breaching of the Human Rights Act making threatening calls. In 2008, he by failing to conduct an effective physically assaulted Hannah at her Having been denied justice through investigation. front door. the criminal courts, Hannah made an application to the Criminal Whilst this goes some way to Hannah reported the assault to the Injuries Compensation Authority vindicating her rights and holding police the next day. Whilst doing (CICA), a government-run agency the state to account, it will not allow this, she also disclosed that her ex- which deals with compensation partner had raped her in 2006. The claims from people who have been her ex-partner to be re-tried, or police commenced an investigation, injured by crime. Her application prevent him from harming other and Hannah provided a detailed was rejected as the police informed women in the future. The problem statement and told the police the CICA that the trial had collapsed of disclosure is not one that can be everything, including that her ex because Hannah had failed to rectified after-the-event on a case- had threatened her over the phone. provide the phones during the by-case basis. The current system Hannah offered her mobile phones investigation. is not working and has rendered to the police then, and on numerous the risk of wrongful conviction, and THE PROBLEM WITH POLICE subsequent occasions over the Hannah then lodged a complaint wrongful acquittal, unacceptably course of the investigation, but was against the police regarding the DISCLOSURE told that she would be asked for the failure to obtain and disclose the high. Urgent and drastic changes phones when they were needed. phone evidence and the false are required with independent, accusation that she was to blame. perhaps even judicial, oversight at The police retrieved the evidence The police conducted two internal an earlier stage of a prosecution provided in 2006 by The Havens and investigations and, in spite of the if the problems persist, in order to confirmed that DNA on the samples evidence, they did not uphold n 2017, 916 criminal prosecutions This is not a recent phenomenon; the Havens, a specialist centre in recalibrate the creaking scales of that had been taken matched the the most crucial aspects of her collapsed due to failures by the it is a scandal which has quietly London for people who have been justice. I DNA profile of Hannah’s ex-partner complaint. Hannah was forced to police and Crown Prosecution plagued the criminal justice system sexually assaulted, the following on the Police National Computer. He appeal twice to the Independent Service (CPS) to disclose relevant for decades, as observed in the day where she was examined and was arrested, interviewed, charged Police Complaints Commission evidence to defendants. There was report into the Mouncher case - found to have multiple injuries, with rape and remanded into (‘IPCC’, now the ‘Independent Office also widespread reporting in the which was concerned with the including defence injuries. Samples custody, but was released on bail for Police Conduct’). The IPCC national media of a series of rape miscarriages of justice involving the were taken and she provided a the following month. concluded that Hannah had offered trials that collapsed due to failures ‘Cardiff Five’ in the 1980s - and which statement about the attack. She was her phones to the police during the to disclose mobile phone and social now seems to be reaching its nadir. told that the information would have His trial finally began in early 2010 investigation, and that the police media evidence, resulting in the to be passed to the police, but that but was immediately adjourned. had failed to obtain and disclose Director of Public Prosecutions Bindmans acted for Hannah (not her identity could be withheld if she The police told Hannah that the them. It also transpired that the LANA ADAMOU Solicitor, Actions against Police and State coming under fire from MPs for her real name) in one such case. wanted, which she did. CPS had asked for the mobile CPS had made repeated requests failing to tackle the issue. In 2006, Hannah was raped by her phones containing the abusive text to the police for the mobile phone D: +44 20 7833 5370 E: [email protected] abusive ex-partner. She attended The attack had a significant impact messages, and that she should bring evidence, all of which were ignored.

30 31 THE YEAR OF THE But that’s about as much as Employment Appeal Tribunal mean that we are able to provide a WHISTLEBLOWER we can tell you: after lodging a hearing in which we expanded the depth of advice to individuals who Tribunal claim for whistleblowing category of wrongdoers who are are often worried about their own detriment, OFGEM asserted that susceptible to litigation for exposing personal liability for any wrongdoing the subject of his disclosures was whistleblowers to detriment, EULEX that has occurred. covered by a legislative provision and the UK government appealed. that creates a criminal offence of The case is listed to be heard in the The law of whistleblowing is disclosing anything falling within Court of Appeal in March. imperfect. It does not properly a broad category of information, recognise the damage done to and that this criminal sanction What each of these cases have those who come forward with their This has been the year of the prevented them (and us) from in common is the media attention concerns, and the playing field is completing the disclosure process they have attracted. This is not by tilted against claimants in court. whistleblower, and Bindmans in the litigation or indeed giving accident; where our clients are The environment for whistleblowers practically any information at all keen for their story to be told and remains a hostile one. But we are about Greg’s employment and his their concerns to be known, we are proud of our record of standing up has been at the forefront. whistleblowing. We challenged this able to help them to reach a wider for those who have stood up for is in the Employment Tribunal on the audience. But where our clients do others by raising concerns despite grounds that it unlawfully impinged not wish to receive any publicity, we the risk in doing so, and we look his human rights to a fair trial and are also ensure that this too is the forward to continuing in our work in freedom of expression. We were case. For each of our cases that you 2019. successful, but OFGEM appealed. read about in the news, there are That appeal has now been heard many more that you don’t. and, at the time of writing, judgment n a recent Guardian cover story it remains a forum for complex and summarily dismissed by the Tax is awaited. Other clients we act for – and Ihighlighting the experiences hotly-contested litigation. Payers’ Alliance. which we anticipate you will be of whistleblowers, four were The fact that a government hearing more about in 2019 - have current or former clients of ours. Within the past year, we have The claim we brought on Mr organisation is seeking to gag a raised protected disclosures We have represented high profile acted for a number of high profile Sanni’s behalf asserted that he had whistleblower and prevent him about pensions irregularities in whistleblowers across the piece – individuals who have sought to been dismissed because of his from accessing justice has attracted the voluntary sector and financial from providing confidential advice protect the public from improper whistleblowing, and that he had significant opprobrium: our efforts corruption in the media and to those who are seeking to raise conduct by their employer. been subjected to a series of further on Greg’s behalf have been television industry. Our practice concerns, to litigating on their behalf detriments by a network of other covered widely in the media and advising NHS whistleblowers has across the full range of Court and Shahmir Sanni was a volunteer right-wing that shared offices with has attracted the support of a wide seen us recognised as experts not Tribunals, making new law giving for Vote Leave during the Brexit his former employers. The claim PETER DALY range of civil society organisations. just in litigating these claims, but in Associate, Employment and fresh protection to whistleblowers. referendum. In the months that also set out why Mr Sanni had been addressing the various ways in which Professional Discipline followed, he blew the whistle to discriminated against because of For several years now we have whistleblowers are put to further D: +44 20 7833 5375 Since 1998, employees who raise the authorities and the media on his protected philosophical belief in been acting for Maria Bamieh, the detriment after the employment E: [email protected] a concern at work relating to a the significant irregularities he had the sanctity of British democracy. In British prosecutor seconded by the relationship is ended. potential breach of legal obligation, observed at Vote Leave. After Vote their response, his former employers government to work for EULEX, the criminal activity, health and safety Leave was wound down following elected not to contest any of the EU’s Rule of Law Mission in Kosovo. In financial services, where risk or damage to the environment the referendum, he was employed claims, and conceded liability on all Maria uncovered and disclosed to protected disclosures often involve have been protected from suffering by the Tax Payers’ Alliance, an of them, rather than face litigation. her superiors information which the commission of serious financial ROBERT MADDOX detrimental treatment or dismissal organisation staffed and run by crimes, we have an extensive track appeared to demonstrate serious Solicitor, Employment and by their employer for raising those many of the senior figures in the Our client Greg Pytel was an and widespread corruption at the record of resolving disputes to Professional Discipline concerns. This area of the law has Vote Leave campaign. After his economist for OFGEM, working upper echelons of the EU staff the satisfaction of our clients. Our D: +44 20 7014 2108 evolved significantly since 1988, and disclosures went public, he was on the £10bn smart meter project. in Kosovo. After a successful colleagues in the Crime department E: [email protected]

3232 33 #METOO AND THE SYSTEMIC PROSECUTORIAL DISCLOSURE FAILINGS THAT THE CAMPAIGN DID NOT NEED

his year has been a the public. How could the police justice system for many years and it is unacceptable”. She assured the CPS and police on the use of with a different face in a few years’ Tgroundbreaking one for victims fail to properly interrogate mobile is difficult to justify why progress has public that the introduction of the third-party material. time. of sexual violence. In October phones when we all know they not previously been made in volume following safeguards would prevent 2017 the #MeToo movement burst contain so much potentially relevant crime cases. Until the police and CPS the reoccurrence of similar mistakes: The jury is still out as to whether this There is also a very real fear that into the mainstream, creating an material? However, many criminal take their responsibilities in dealing will represent the sea change that these steps are too little too late environment in which people began defence lawyers were, unfortunately, with disclosure in volume cases more „„ The extension of Disclosure is required to tackle this systemic from a reactive organisation that to feel safe sharing their experiences unsurprised. This scandal served seriously, no improvement will result Management Documents in all issue. A progress report published by has become unfit for purpose. It of sexual assault, harassment and only to expose that which we and the likelihood of a fair trial can be rape and serious sexual offences the CPS in October 2018 indicated is not enough to address each violence. It became an international already knew about the disengaged jeopardised.” cases and in “complex” Crown that updated training programmes individual problem as it emerges, movement almost overnight, with way in which the Crown Prosecution Court cases. These documents focussing on reasonable lines of rather, there needs to be complete social media being pivotal to its Service (CPS) had approached the Disclosure failings are by no means would be used to outline the enquiry were reinforcing to police overhaul of a justice system that for rapid rise. topic of disclosure for far too long. unique to sexual offences. Indeed, prosecution’s approach to officers how fundamental disclosure too long has been understaffed and the Making it Fair report revealed disclosure for the court and the is, throughout and at the start of underfunded, making miscarriages However, just when it seemed In the report Making it Fair, published that in a sample of 146 cases there defence, thereby ensuring that an investigation. CPS Disclosure of justice a depressing inevitability. as though justice was becoming in July 2017, the CPS Inspectorate were disclosure issues in 55.5% of any disclosure issues would be Champions have been established a real possibility for victims of (the body responsible for overseeing cases. In an attempt to salvage their dealt with at an early stage; in all Crown Court and Magistrates sexual violence the UK Director the CPS) criticised the level of damaged reputation, the DPP took „„ The introduction of Disclosure Court teams and the hope is that of Public Prosecutions (DPP) was complicity of the police and the CPS drastic action. On 5 June 2018, the Champions in all CPS Crown these Champions will drive forward rocked by a scandal involving in these failings, commenting that: CPS published a review of 3,637 Court and Magistrates’ Court the cultural change that the CPS is systemic disclosure failings in rape or serious sexual assault cases. teams; crying out for. cases concerning sexual offences. “Rather than addressing non- Of that sample, 47 cases had been „„ New training for all forces Key evidence which was capable compliance, our inspection has found discontinued because evidence had introduced by the College of The real concern is that whilst the of demonstrating an accused’s a continuing decision by the police failed to be properly shared with the Policing, taking into account the CPS remains under the microscope innocence was not being made and CPS to accept the risk associated Defence. The former head of the ongoing and significant changes of the media, they will be tempted available to the Defence. At the heart with poor disclosure practices and DPP, Alison Saunders, commented in disclosure practice; to adopt a risk-based approach to of the scandal appeared to be digital procedures in respect of disclosure that “common themes identified „„ A new procedure for officers charging decisions, as opposed to evidence- that is material on laptops, handling for volume Crown Court included communications evidence to identify reasonable lines judging each complaint on its merits. tablets, mobile phones and data work….Non-compliance with the such as texts, emails and social of enquiry when submitting a Such a temptation will temporarily ELLA JEFFERSON Solicitor, Crime, Fraud and Regulatory embedded online via social media. disclosure process is not new and has media being examined too late in charging decision request to the improve the conviction statistics at been common knowledge amongst the process…” and “there are cases CPS; and the CPS but will inevitably lead to D: +44 20 7014 2119 E: [email protected] This revelation came as a shock to those engaged within the criminal where we are falling short - and that „„ A new protocol between the the emergence of another scandal

34 35 APOLOGY TO LIBYAN MAN ARRESTED AFTER MANCHESTER BOMBING FOR FALSE ALLEGATION OF ISIS LINK

laedeen Sicri, is a qualified pilot Salman Abedi. Shortly after the did not make any public statement Awho, in May 2017 was living in attack the terrorist group, ISIS, referring to the fact that Mr Sicri had West Sussex. Whilst training to be claimed responsibility for it. A been arrested, and did not issue any a pilot he ran an online business to total of 22 people were arrested in details about his arrest. assist individuals in Libya to make connection with the attack within online purchase from companies three weeks, including Mr Sicri. Mr Sicri was told that the reason such as Ebay or Amazon. His details for his arrest was that his number were also on a Facebook page Mr Sicri had nothing whatever was telephoned by Salman Abedi used by many Libyans for currency to do with the attack and had no a day or so before the attack in exchange. connection or affiliation with the Manchester. Mr Abedi had rung The defendant accepted that substantial sum in compensation The facts here are that Mr Sicri his number because he wanted bomber or other terrorists. He these allegations are false and and his legal costs; The Argus had absolutely nothing to do with to transfer some money to Libya published a suitable correction and On 23 May 2017 there was a terrorist cooperated fully with the police defamatory. Mr Sicri is not, and has the bombing but his life has been and that he had obtained Mr Sicri’s apology and has undertaken not attack in the Manchester Arena and was released without charge. never been, a supporter of ISIS. catastrophically damaged by the number from a publicly available Mr Sicri had nothing to do with the to publish these allegations or any in which twenty-three people Mr Sicri’s arrest was reported in a press naming him after he was source. Mr Sicri told Mr Abedi that attack in Manchester. He is opposed similar allegations again. were killed, including the attacker, number of media outlets. The police arrested. Further claims will follow. he was not able to assist and put in the strongest possible terms to the phone down when he became all violence done by ISIS, including What this case demonstrates is suspicious of a scam. the Paris and Manchester attacks. that in May 2017 a completely He has never supported the ISIS innocent young man was publicly On 31 May 2017 there was an leader referred to in the article identified as being connected to article about Mr Sicri in The Argus published in The Argus, (or any the Manchester bombing and then “ALAEDEEN SICRI IS PLEASED THAT THESE FALSE newspaper in Brighton. The article other ISIS leader). The publication accused of being an ISIS supporter. ALLEGATIONS HAVE BEEN WITHDRAWN, BUT HIS suggested that Mr Sicri, was an of these false and defamatory ISIS supporter who had publicly He is pleased that these false CASE ILLUSTRATES THE DAMAGE THAT CAN BE DONE allegations by the Defendant mourned the death of an ISIS leader has caused Mr Sicri very great allegations have been withdrawn, BY NEWSPAPERS IDENTIFYING PEOPLE AT AN EARLY in Libya by posting a picture of the distress, anxiety and damage to his but his case illustrates the damage STAGE IN AN CRIMINAL INVESTIGATION BEFORE THE Libyan flag when news broke of that reputation. that can be done by newspapers FACTS ARE CLEAR.” ISIS leader’s death in a US air attack, identifying people at an early stage TAMSIN ALLEN Partner, Media and Information Law together with a message of respect The publisher agreed to join a in an criminal investigation before for the dead leader on his Facebook Statement in Open Court to publicly the facts are clear. D: +44 20 7833 7831 E: [email protected] page. apologise to Mr Sicri; to pay him a

36 37 claims for defamation and breach of Civ 130 as: reasonable, not naive, statutory duty under section 4(4) of and not unduly suspicious. He can EXTREMISM AND the Data Protection Act 1998 (“DPA”) read between the lines. He can read and section 6(1) of the Human Rights in an implication more readily than a Act 1998 (“HRA”).The publication lawyer and may indulge in a certain HATE SPEECH - A by the SSHD on the Government amount of loose thinking but he must website www.gov.uk press release is be treated as being a man who is headed “PM’s Extremism Taskforce: not avid for scandal and someone MATTER OF FACT OR tackling extremism in universities who does not, and should not, select and colleges top of the agenda”, one bad meaning where other non- OPINION? which announced updated Prevent defamatory meanings are available. duty guidance, including a new He will read the article as a whole, duty to stop extremists radicalising and any “bane and antidote” will students on campuses. be taken together. The hypothetical reader is taken to be representative of Following a preliminary issues trial those who would read the publication engagements he used to enjoy so on 17 October 2017 in the High Court, in question. It follows that “it is not much – due to fear by association by his Judgment dated 20 October enough to say that by some person with him by higher education 2017 [2017] EWHC 2619, Nicol J held or another the words might be bodies) but he still remains that the words complained of as understood in a defamatory sense.” genuinely interested in hearing all libel in these proceedings meant the legal arguments and thankful and were understood to mean The Court of Appeal is left to ponder that he can have his day in court. that: Dr Butt is an extremist hate these questions. The Defendant’s speaker who legitimises terrorism case is that the press release is No one could be further away than V thrillers and radio plays reports which followed the press and from whose pernicious and merely expressing an opinion and Dr Butt from the hateful bigot he has abound these days on the release. He had no prior notice that SAIMO CHAHAL QC (HON) T poisonous influence students should not is not a factual statement at been condemned as. He still lives in Partner, Joint Head of Public Law and subject of extremism and counter he was to be named and vilified in be protected. Second that this was all- notwithstanding that this was the hope that he will be vindicated Human Rights terrorism, including the nail bitingly this way. a statement of opinion and not fact a government press release on a and that one day he too can speak D: +44 20 7014 2055 tense thrillers “Bodyguard” and within the meaning of section 3(2) government website explaining freely again. Hail free speech! E: [email protected] the “Informer” to name just two. Dr Butt, who is married with three of the Defamation Act 2013 and that a new legal duty on universities Little did Dr Butt, a quietly spoken young children, holds a degree the basis of that opinion were views concerning Prevent, a failure to intellectual, who likes to discuss in biochemistry and a PhD from expressed by Dr Butt in the public follow which, could result in legal and debate current political issues Imperial College. He is the Chief domain. sanctions. know that he would end up centre Editor of Islam21C, a publicly stage in an equally dramatic legal accessible website which describes The SSHD appealed the first The law says that the Court must BASMAH SAHIB scenario. Dr Butt was named by the itself as “Articulating Islam in the finding of the judge and Dr Butt, strike the correct balance between Solicitor, Public Law and Human Rights then Secretary of State for the Home 21st Century”. A mild mannered and appealed the second finding that Dr Butt’s Article 8 right to reputation D: +44 20 7833 5376 Department (the SSHD namely thoughtful man – he was deeply the statements were opinion and not and the SSHD’s Article 10 right to E: [email protected] Theresa May) as an extremist, offended, upset and horrified that he fact. On 17th October the appeal was freedom of expression. someone who is against the values had been labelled as an “extremist” heard, with judgment still awaited. of British Democracy, a hate speaker and a “hate speaker”. Nothing was Dr Butt’s resilience and optimism and a pernicious influence on further from his intentions. He The Court of Appeal had to read to see the legal process prevail students. would have liked to challenge the the offending press release and and his name “cleared” has been description of him before publication put themselves in the position of truly inspiring. Although he has Dr Butt first learned of the offending but had no right to do so. ALAA ABDOUN the ordinary reasonable reader. unwittingly been catapulted into a Trainee Solicitor, Public Law and Human press release which the Government This individual’s characteristics legal nightmare where his reputation Rights released 18th September 2015, He decided to bring a challenge are defined in Jeynes v News has been dragged through the mire D: +44 20 7014 2085 when he read his name in the media to the SSHD’s actions and brought Magazines Ltd & Anr [2008] EWCA (he no longer gets the speaking E: [email protected]

3238 39 used when assessing somebody’s information. of the marriage. capacity to marry had not been applied. Nobody could ever doubt Beth We wish Beth and Mitchell the and Mitchell’s commitment to each very best of luck in all their future This then is a love story with four other, or their desire to get married, endeavours, and on all their future heroes, as once Diane and David but all of that would have been for adventures. understood the correct ‘test’ to be nought had they not been equally applied, they set about thinking of committed to developing the the ways in which Beth and Mitchell requisite knowledge (and, indeed, could best be taught the information had they not had Diane and David that they would need to be able to cheering them on from the side- understand, retain, and use or weigh lines). (section 3 of the Mental Capacity Act 2005). A story with such heroes deserves only the happiest of endings (and a It transpired that both learned reception with teepees!), and after information in a variety of ways, but Beth and Mitchell’s capacity was that Beth was best able to learn reassessed by their GP (who found using visual techniques, with Mitchell that both had the requisite capacity), least responsive to information their social workers confirmed that LAURA HOBEY-HAMSHER Associate, Public Law and Human Rights provided orally. Having done neither would seek to dispute those so, Diane and David then began assessments, or, put another way, D: +44 20 7014 2093 E: [email protected] providing them with the relevant that neither would stand in the way

ALL YOU NEED IS LOVE?

On 30 June 2018, two kind, clever, Beth and Mitchell had been told in a decision unless all practicable loving, bright young people, Mitchell categorical terms that they would steps to help him to do so have Hendley and Beth Hardy (now never be allowed to marry. been taken without success”. Hendley), became husband and wife. Both Beth and Mitchell have learning Those principles had, however, disabilities, and had been assessed never been explained to either Beth, The Internet confidently tells us by their respective social workers Mitchell, or their greatest champions, that we’ll only find true love in one as lacking the capacity required to Beth’s parents, Diane and David. lifetime out of 10,000. Against those consent to marriage. (considerable) odds, Beth and Nor had the fact that capacity can Mitchell had done exactly that. Underpinning the Mental Capacity (and should) be reassessed if a Act 2005 are the six principles person’s ability to understand the Surmounting the odds of finding contained in section 1. In particular, information relevant to the decision ‘the one’, however, turned out to be section 1(3) provides that “A person is in question might have changed. only the first hurdle to overcome, as not to be treated as unable to make And finally, the correct ‘test’ to be

40 41 THE GANG MATRIX

n 2012, as part of the highly In May 2018, Amnesty International notions”. The Matrix reflects the Ipoliticised response to the 2011 released a report ‘Trapped in the disproportionate profiling of black London Riots, the Met launched its Matrix: Secrecy, Stigma, and Bias men and boys as ‘gang’ members, gang-mapping database to “reduce in the Met’s Gang Database’. The reflecting a historic pattern of over- gang-related violence and prevent report revealed that in July 2016, of policing of the Black, Asian and young lives being lost”. It lists people the people listed on the Matrix: minority ethnic communities in this adding or removing someone from and the huge disparity in them changes to The Matrix to bring it into who are suspected of being in a country. The Matrix was different in each. underlines the fundamentally racist compliance with data protection law. This includes ensuring that gang as “gang nominals” and ranks „„ 99% were male Police drew on a “wide range of basis of The Matrix : 78% of those on there is a clear distinction made them according to how likely they „„ 80% were between the ages of The Matrix sets a very low threshold corroborated and uncorroborated The Matrix are black; the Met’s own between victims and perpetrators are to commit ‘violence’: ‘red’ being 12 and 24 - just two pieces of “verifiable intelligence”. The officers reported figure for serious youth violence of crime; deletion of informal lists of the highest and ‘green’ indicating a „„ 15% were minors (the youngest intelligence” - which are required that past offences were taken into committed by young black men is those no longer meeting the criteria; threat level of zero. just 12) to add someone without their account alongside “intelligence” 27%. about a person’s friends/ and reviewing fully the information- „„ 87% were from Black, Asian, knowledge to a list that is distributed associations and where they lived. The Mayor’s Office for Policing and sharing processes. The IC Office In October 2017, the Met reported minority ethnic (BAME) to other agencies such as councils, Questions raising suspicions for the Crime also found that in London found “serious breaches of data that 3,806 people were on the backgrounds housing associations, schools/ police included those such as - was more than 80% of all knife-crime protection laws with the potential to Gangs Matrix. Less than 5% were in „„ 78% were black colleges jobcentres and the Home cause damage and distress to the the individual stopped and searched incidents, in which a victim under the ‘red’ category, with 64% listed Office. There is no clear guidance or disproportionate number of young criteria on what exactly counts as with someone else on The Matrix; the age of 25 was injured, were in as ‘green’. And 35% of those listed The report went on to state that black men on The Matrix”. did vehicle number plate records fact deemed not to be gang-related. in that lowest category had never the concept of a ‘gang’ is “vague, “verifiable intelligence”. There is no show the individual travelling committed any serious offences. ill-defined and based on racialised clear system of reviewing The Matrix or correcting or deleting outdated in convoy with other so-called One more enlightened Met police information, no system of notifying ‘gang nominals’; who was in the officer even told Amnesty: “Gangs the people who are listed on it, individual’s peer group; what were are, for the most part, a complete nor any process by which they can their family relationships. red herring…fixation with the term is challenge their status or have their unhelpful at every level.” “THE CONCEPT OF A ‘GANG’ IS “VAGUE, ILL-DEFINED name removed. The Matrix also serves to conflate AND BASED ON RACIALISED NOTIONS.” the notion of ‘gang’ membership Following a full review, on 13 Amnesty researchers spoke with with serious youth violence and November 2018, the Information JUDE LANCHIN Associate, Crime, Fraud and Regulatory Met officers at Gangs Units in three in particular, violence allegedly Commissioner (IC) issued an different London boroughs and perpetuated by young black men. Enforcement Notice to the Met D: +44 20 7833 7813 E: [email protected] found that the procedure for But the figures do not add up ordering it to make significant

42 43 INTERPOL Red Notices, or starting Criminal Finance Act 2017 such as Interpol Red Notice removed; extradition procedures in the UK unexplained wealth orders, account refugee status may provide a on spurious grounds. The fact an freezing and forfeiture orders and defence to asset recovery, freezing Interpol Red notice was in existence asset seizures could potentially or forfeiture on the basis that this is a meant extradition proceedings make life very uncomfortable for continuation of the persecution. were a very real possibility for this someone of wealth if the home individual so Bindmans liaised with country circulates misinformation At Bindmans we have successfully the extradition unit to arrange for his about the origin of that wealth, assisted clients in contesting these surrender to the magistrates court especially if successful prosecutions methods of continuing persecution if an extradition warrant was issued, have taken place in the home through challenges to INTERPOL which it was. country. Red Notices, to the National Crime Agency (the UK’s National Crime Andrei was granted bail and was A refugee may also experience Bureau for INTERPOL) and to successful in resisting the extradition difficulties with opening bank Worldcheck, as well as contesting warrant. It was discharged on the accounts. Bank reference checking extradition and mutual legal basis that he could not have a fair services such as Worldcheck can assistance requests. Our extradition trial in his home country. The Court be manipulated so that it is very team works in close conjunction heard expert evidence that this was hard for the refugee to open a bank with our immigration department to a politically motivated prosecution account in the UK, or their accounts provide a full service to those facing and there was no independence of can be frozen. these problems. the judiciary who convict “to order”. The home country did not appeal, EXTRADITION AND ASYLUM: knowing they could not address the THE IMPORTANCE OF ASYLUM quality of the evidence provided to PROSECUTION OR defeat the warrant. A person who is outside their home country and who is facing But this is not the end of the matter persecution can apply for asylum PERSECUTION? as an INTERPOL Red Notice is still in the UK at any point. This can be in existence and so Andrei cannot if the person is in the UK without travel overseas without fear of permission, as a visitor, or with arrest, detention and possible indefinite leave to remain. Asylum ndrei (name changed) had a country, and fully intended to apply to deprive him of his assets and to extradition proceedings. The next is an extreme step but may be Ahigh profile position in his home for naturalisation when he could do silence him. A number of his bank step is to apply to Interpol to have the only option for a persecuted the Red Notice removed but also to individual and the only means to KATE GOOLD country but a change in the balance so. He felt so safe, he supported accounts were frozen, a warrant for Partner, Crime, Fraud and Regulatory of power caused him concern, political opposition parties at home his arrest was issued and Interpol engage lawyers in the home country secure safety and protection from a D: +44 20 7833 7820 especially when false allegations and gained a reputation as someone circulated a Red Notice. to undermine the evidence provided despotic and hostile regime. E: [email protected] were made against him. He felt he who was willing to speak out against to INTERPOL. could not progress in his role, was the regime. He turned to Bindmans for help. Even after negotiating the asylum concerned for his safety and that of Given the bizarre nature and timing Andrei also faces the uncertainty of process a refugee’s trials may not be his family and moved to the UK. This security was shattered when of the allegations it was apparent ever gaining access to his assets, over. However, the grant of asylum he realised that serious allegations this was a case of persecution and not only in his home country but can potentially protect an individual He had been living in the UK for previously made against him in his not prosecution. He applied for also overseas and potentially in from the draconian measures set a decade. His wife had become home country were re-surfacing. asylum. Many persecutory states the UK. If convicted in his home out above as a refugee cannot be ALISON STANLEY British, his children attended school The allegations were entirely continue their persecutory actions country this could trigger requests extradited; requests for mutual legal Partner, Joint Head of Immigration, in the UK and he participated in local without foundation, and were against an individual by making it for mutual legal assistance in assistance may be resisted; refugee Asylum and Nationality

community activities. The UK was his seemingly part of a long game by very difficult for a refugee to travel the UK to disclose assets. New status may provide the foundation D: +44 20 7833 7804 home and he felt safe in his adopted the authorities in his home country abroad freely due to initiating domestic legislation under the for representations to have an E: [email protected]

44 45 CLARIFYING THE LAW ON STATE IMMUNITY IN THE EUROPEAN COURT OF HUMAN RIGHTS

r Buttet was employed as a The Supreme Court in absolute rule of state immunity in employee relationship. A person’s Although article 7 of the Vienna Msecurity guard by the French Benkharbouche v Secretary of State customary international law; the only nationality and residence at the date Convention on Diplomatic Relations Embassy in London. He was for Foreign and Commonwealth consensus that there has ever been of the employment contract are not 1961 indicates that a court may not dismissed and made a claim for Affairs etc. [2017] UKSC 62 considered about the scope of state immunity proper grounds for denying a person order a foreign state to employ unfair dismissal to the Employment these issues and found that the is the relatively recent consensus in access to the courts in respect of a specific person in its embassy, Tribunal. The Tribunal decided it had test for immunity was whether the favour of the restrictive doctrine; and their employment in this country. no jurisdiction and that the State relevant provisions of the Act were that restrictive doctrine emerged As the UN Convention on State this issue does not arise where the Immunity Act 1978 applied. Mr Buttet consistent with international law after a re-examination of the true Immunity 2004, which the ECHR claimant only seeks damages (rather has submitted an application to the and found they were not. A court basis of the doctrine, rather than by took as crystallising customary than reinstatement in his or her ECtHR on grounds that domestic may identify a rule of customary creating exceptions to any general international law on state immunity previous position) Nor is there any remedies have been exhausted and international law only if enough rule of absolute immunity. recognises permanent residency corresponding rule of customary his Art 6 rights – access to a court to states follow a consistent practice, in the forum state at the time international law to extend absolute determine a dispute are violated. on the footing that it is a legal In customary international law, proceedings are issued as being a obligation. The Supreme Court a foreign state is immune where legitimate exception. The UK law state immunity to the employment The State Immunity Act renders found that while there is a long- a claim is based on sovereign goes further than this by: of embassy staff. The Supreme a foreign state immune from the standing consensus of states acts. Whether a foreign state’s Court found that sections 4(2)(b) jurisdiction of a UK court in a in favour of immunity there has employment of a claimant „„ barring claims where the and 16(1)(a) of the 1978 Act, which claim based on the foreign state’s probably never been sufficient constitutes a sovereign act depends employee is a national of the SAIMO CHAHAL QC (HON) confer immunity in English law, are Partner, Joint Head of Public Law and employment of the claimant, where international consensus for an on the nature of that employer- employer state; and Human Rights consequently incompatible with the claimant either: „„ by requiring habitual residence article 6 of the ECHR. D: +44 20 7014 2055 at the time the contract of E: [email protected] „„ at the time of the contract, was employment is entered into. neither a UK national nor UK The Government has not acted on resident; or A COURT MAY IDENTIFY A RULE OF CUSTOMARY Section 16(1)(a) extends state the Declaration of incompatibility „„ works for the foreign state’s immunity to the employment of all INTERNATIONAL LAW ONLY IF ENOUGH STATES granted by the Court of Appeal – diplomatic mission. members of a diplomatic mission. which it allowed on appeal and FOLLOW A CONSISTENT PRACTICE, ON THE FOOTING The Court rejected the Secretary Mr Buttet now seeks to challenge PETER DALY Section 4(2)(b) confers immunity THAT IT IS A LEGAL OBLIGATION. of State’s argument that a state Associate, Employment and Professional in the first category; section 16(1) is entitled in international law to that failure by his application to the Discipline (a) confers immunity in the second ECtHR. absolute immunity in respect of the D: +44 20 7833 5375 category. employment of embassy staff. E: [email protected]

46 47 that there was no need for a person the application of the Ivey test “In my view, the evaluative judgment the conduct as dishonest. The more to appreciate that their actions would result in the net of criminal made by the MPT in this regard the jury can understand about the were dishonest by the standards of responsibly being cast wider than should be given great weight. facts the defendant perceived the ordinary decent people. In his ruling, had hitheto been the case due to the That is both because it had the more likely it is they will understand with which all the other judges removal of the need for the accused advantage of seeing the appellant why a defendant acted as they did DISHONESTY AND agreed, Lord Hughes stated: to appreaciate that their actions and the witnesses, so that it was and be able to make the subtle were dishonest by the standards of well placed to make an evaluative but important morally significant “When dishonesty is in question ordinary people. judgment regarding the nuances of distinctions of the kind referred to in CRIMINALITY the fact-finding tribunal must first their interactions and the nature and Raychaudhuri. ascertain (subjectively) the actual More recently the Ivey test was seriousness of what the appellant state of the individual’s knowledge considered by the court of appeal did, and because of the practical It remains to be seen how the Ivey or belief as to the facts. The in Raychaudhuri (2018 EWCA expertise of a MPT in being able to test will impact the case of people reasonableness or otherwise of his Civ2027). This was a case in which understand the precise context in who are mentally vulnerable. Where belief is a matter of evidence (often the Medical Practitioners Tribunal which and pressures under which a mental impairment resulting from in practice determinative) going to had found that Dr Raychaudhuri, a doctor is acting in a case such as this.” a long standing condition or the whether he held the belief, but it is Doctor working in A&E, had made stress and pressures of a particular not an additional requirement that a false statement in a phone call And also: situation may have affected the hat do a professonal gambler decision of the Court of Appeal in his belief must be reasonable; the with his superior about filling in a defendant’s perception of the who used a technique known Ghosh, juries had to decide whether W question is whether it is genuinely form relating to the examination of “As I read its decision, the tensions facts they may wish to consider as “edge sorting” in a Casino game what the accused did was dishonest held. When once his actual state of a patient but that he had not been in [the MPT’s] reasoning reflect the calling expert psychological or and a busy A&E doctor who filled according to the ordinary standards mind as to knowledge or belief as acting dishonestly when he did so. anxious care with which it sought psychiatric evidence to support in part of a form before seeing of reasonable and honest people. to facts is established, the question The GMC appealed to the High to weigh and evaluate the moral their defence. However there will a patient have in common? The If it was not dishonest by those whether his conduct was honest or Court and Sweeney J held, applying significance of the appellant’s be no defence if mental impairment answer is that, although neither standards, the accused had to be dishonest is to be determined by the the Ivey test, that Dr Raychaudhuri conduct in the particular context of affected not perception of the of them were before the criminal acquitted. If what the accused did fact-finder by applying the (objective) had acted dishonestly in making the this case. ” facts but instead the Defendant’s courts, their cases have helped was dishonest by those standards, standards of ordinary decent people. false statement. Dr Raychaudhuri ability to understand that ordinary to re-shape the legal test for the jury then had to consider There is no requirement that the appealed to the Court of Appeal Raychaudhuri has therefore people would regard their actions dishonesty that must be applied whether the defendant must have defendant must appreciate that what and the Court of Appeal reversed firmly placed subtly, context and as dishonest. Should such a case before a person can be convicted of realised that what s/he was doing he has done is, by those standards, Sweeney J’s ruling on dishonesty. the accused’s genuinely held arise then prosecutors will have crimes such as theft and fraud. was dishonest by those standards. dishonest”. In delivering the judgment Lord knowledge or belief of the facts at a responsibility to determine That definition was applied Justice Sales held that Sweeney the centre of the test for dishonesty. whether it is in the public interest to In life we often think of telling lies universally to cases with simple He held that people whose J’s approach was “too cut and It also underlines the requirement prosecute. or being economical with the truth facts such as an employee taking standards are criminal by the dried” and that “it was a case which for juries to make morally significant as dishonest. However the fact money from the till as well as those benchmarks of society should not the MPT plainly regarded as finely distinctions and to take account of that someone has lied may not with highly specialist and complex be excused: balanced, involving circumstances nuances context and pressure. necessarily result in a court finding contexts such as Libor prosecutions. which required subtle but important that the legal test for dishonesty has “There is no reason why the law and morally significant distinctions In cases where the Defendant been met. A decision about whether Recently the test for dishonesty should excuse those who make a to be drawn. It seems clear that the denies acting dishonestly the a person’s actions were dishonest has been though something of mistake about what MPT gave anxious consideration focus will be on assembling and to the point of criminal responsibility an upheaval. In 2017 in Ivey the contemporary standards of honesty to whether the appellant’s conduct presenting evidence of the facts that will involve a close examination of Supreme Court modified the test are, whether in the context of could be regarded as dishonest the Defendant believed to exist and all the circumstances and facts of in an appeal relating to a civil case insurance claims, and that it thought that there was also any facts of which they were the case, and what the accused brought by a professional gambler high finance, market manipulation or an important moral distinction to be unaware. This evidence can be used believed them to be, as well as who used “edge sorting” to improve tax evasion”. drawn in the particular circumstances to enable jurors to stand in the shoes KATIE WHEATLEY applying the objective standards of his chances of winning and wanted of the case....” . of the defendant at the relevant time Partner, Joint Head of Crime, Fraud and ordinary decent people. to recover his winings from the The Supreme Court’s decision and understand the context in which Regulatory

casino. The Supreme Court held that in Ivey was the subject of much He went on to say: they are to judge whether or not an D: +44 20 7833 7825 For many years, following the Ghosh was wrongly decided and debate. One concern was that ordinary decent person might view E: [email protected]

48 49 BABY LOVE? MATERNITY DISCRIMINATION IN THE WORKPLACE

quality is fundamental to a notified her employer as soon as DISABILITY, SEX AND AGE being excluded from key aspects of DISABILITY DISCRIMINATION AND the underlying case is not lost. The Efunctioning democratic society. reasonably practicable after giving DISCRIMINATION her job role, comments being made SURROGACY case is ongoing. Whether it’s in the field of work, birth, the employer allowed our in the office that“disabled children goods and services or education, client to unlawfully work during the Our client worked as a Marketing should be shot at birth”, that if her Our client is a senior lawyer in a the law is clear that all are to be period of compulsory maternity Executive for a surveillance / home son “was a horse he would be put to tech company. She has a substantial afforded equal opportunity and leave (the first two weeks following automation company headquartered sleep the amount of time he is ill”, that disability which, although it has not equal treatment. Our discrimination birth). They halved our client’s salary in Taiwan. Our client was the first “women are only good enough in the prevented her from a successful law practice supports individuals and working hours. They also failed employee of the company to give bedroom and kitchen”, “women with career in a very competitive industry, from a range of backgrounds who to provide our client with details of birth. She gave birth to her first child children are a drain on the workplace” prevented her from becoming have experienced discrimination. company maternity leave policy and in November 2011 and, despite being and that “women with disabled pregnant. She underwent surrogacy, Our work is varied and complex, and did not attempt to pay her Statutory on maternity leave, returned to work children should not work”. During and suffered discriminatory is best reflected in the cases we Maternity Pay. Instead she felt the for the company for a period of one a period of absence from work a behaviour from her employer, have pursued. expectation was that she should month only two days after her first new member of staff was hired by related both to her surrogacy and to continue to work. child was born. In June 2014 our her company and introduced to her disability. During 2018, one of the common client gave birth to her second child other staff members as our client’s themes in our casework has The employer sent our client a new who was registered disabled at birth “replacement”. Our client submitted The litigation – which is still ongoing been the discrimination faced by contract a few weeks later to reflect with a severe type of Haemophilia. numerous grievances relating to – has been particularly combative. mothers in the workplace, often this new arrangement. The contract this treatment but on each occasion Her employer initially disputed ELIZABETH MCGLONE in conjunction with discrimination was for a fixed period until the Following the birth of her children, her concerns where not addressed the fact that her condition was a Partner, Head of Employment and Professional Discipline related to other protected end of February 2018. Towards the our client was subjected to and the poor treatment continued. disability, even though they had characteristics that they face. end of this contract our client was harassment and victimisation in Our client remains working for the recognised it as such throughout D: +44 20 7014 2117 E: [email protected] unceremoniously informed that the the workplace by senior members company. her employment. In correspondence SEX, PREGNANCY AND MATERNITY contract would terminate and she of management. This included from the employer’s solicitors, our DISCRIMINATION would be made redundant. having her salary reduced, being On our client’s behalf we brought a client was accused of preparing to told flexible working couldn’t be claim in the Employment Tribunal commit perjury in the proceedings, a Our client worked as a junior On our client’s behalf, we brought accommodated because her boss for discrimination on the basis criminal offence that carries a prison accountant for a software a claim in the Employment Tribunal “couldn’t be bothered with the hassle”, of disability by association, sex term of up to seven years. DANIEL ZONA company, having been successfully for, amongst other things, unlawful repeatedly being told that her job discrimination, age discrimination, We have been able successfully to Solicitor, Employment and Professional transitioned from an Office sex and pregnancy and maternity was at risk as a result of the time that harassment and victimisation. The repel these tactics, build a case for Discipline Administrator role. She unexpectedly discrimination and unfair dismissal. she was forced to take off to attend case is still ongoing. aggravated damages while at the D: +44 20 7014 2111 gave birth in October 2017. Having The case is still ongoing. her son’s medical appointments, same time ensuring that focus on E: [email protected]

50 51 HOW CAN WE HELP?

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