![CLFIS (UK) Ltd V Dr Reynolds [2015] EWCA Civ 439 (Continued...) the Claimant Relied on the Reasoning of the EAT, with the Exception That: 1](http://data.docslib.org/img/4d5a926a7701cc36ab1a8a8ef9d88c8d-1.webp)
& A Happy New Year! Broadway House Chambers [email protected]
CRIMINAL LAW FAMILY LAW EMPLOYMENT LAW CIVIL LAW IMMIGRATION LAW Regulation & Judicial Review ...from everyone at 2015 broadway quarterly The Newsletter for Broadway House Chambers [2015] EWCA Civ 439 CLFIS (UK) Ltd v Dr Reynolds Case update: including herfailure tovisit to theclaimant’s dismissal, number offactors leading evidence, highlightinga The ETheard theGM’s the burden ofproof. sufficient evidenceto reverse of othersandthere was based uponthecontributions the decisiontodismisswas despite acknowledgingthat as thesoledecisionmaker GM’s “mentalprocesses” to focusexclusivelyonthe the respondent, choosing The ETfoundinfavourof Decision oftheET consultancy agreement. to terminatetheclaimant’s (“GM”) madethedecision service, theGeneralManager division regarding theCMO the ManagingDirector ofthe presentations, including one by Following aseriesof from 1968until1992. previously beenanemployee Medical Officer (“CMO”)having consultancy agreement asChief The claimantworkedundera Background By broadway quarterly|Issue29December2015 Jake Ellis specialising in Immigration, Civil, Commercial, Employment and Family Law her current working practices. indicated nodesire toadapt her evidence,theclaimant Importantly, throughout need to provide that opportunity. the GMstatedthere wasno a self-employedconsultant, Moreover, as the claimant was current workingpractices. frustrate any attempt to change would notchangeand her foranumberofyears,she that, havingworkedalongside accepted theGM’s evidence her workingpractices,theET given anopportunitytomodify Whilst theclaimantwasnot in traininganddevelopment. times; and,herlimitedinput experts; sluggishturnaround a widerpanelofmedical her resistance toengaging their Bristoloffice infiveyears; (continued...) all theparties’motivations. decision the ET should examine several parties contribute to the the ET, SinghJheldwhere to how the case was argued in protestations this was contrary determine thematter. Despite unassailable, thisdidnot sole decisionmakerwas decision thattheGMwas Although Singh J held the ET’s ground 1. Singh Jallowedtheappealon on three grounds: The claimant brought an appeal The EAT P12Chambersnews P11Newmembers Other P1 Employment P8 P6 Family P10Whodowethinkare? P9 P7 P4 Criminal change, owingtoherage. claimant wasincapableof alleged beliefthatthe whether therespondent’s 3. theETdidnotaddress decision toterminate: who hadcontributedtothe the oralevidenceofothers the ETfailedtoconsider burden ofproof hadshifted, 2. havingdecidedthe processes oftheGM; regard onlytothemental 1. theETerred inhaving Case update visitor? Watchdog orunwelcome When is a child not a child? Publicity on proof of iniquity had itsday? Has the ‘Rule’ of R v Grant Proceeds ofcrime Contents broadway quarterly |1
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By Jake Ellis specialising in Immigration, Civil, Commercial, Employment and Family Law
Case update: CLFIS (UK) Ltd v Dr Reynolds [2015] EWCA Civ 439 (continued...) The claimant relied on the reasoning of the EAT, with the exception that: 1. the GM was not the only decision-maker; 2. the EAT failed to properly consider whether the GM’s belief that the claimant was incapable of change was age related.
Giving the lead judgment, Underhill LJ, distinguished between cases of “joint decision” and “tainted information”, stipulating cases of “tainted information” occur where the: “ …act which is Support for this assertion was said Additionally, Singh J, referring to Igen detrimental to a to derive from Nagarajan v London Ltd v Wong [2005] ICR 931, stated Regional Transport [2000] 1 AC 501: where the burden of proof had shifted, claimant is done by as the ET found in this case, it was for the respondents to prove the treatment an employee who is “…Discrimination was “in no sense whatsoever” on innocent of any may be on racial discriminatory grounds. discriminatory grounds even The Court of Appeal motivation but who though it is not The respondent appealed on four has been influenced the sole ground grounds: 1. the ET was right to focus exclusively by information… for the decision on the GM’s mental processes; 2. even if the mental processes of the or views expressed …If racial grounds other parties were relevant this had not by another…whose or protected acts been argued before the ET; 3. even if those parties’ mental motivation is, or is had a significant processes were open to being said to have been, influence on the pursued, the ET made their finding based on the GM’s decision alone; discriminatory”. outcome, 4. if the case was to be remitted it should have been to the same tribunal. Underhill LJ asserted that in these discrimination is cases the tribunal should separate and made out”. distinguish between the act of providing the “tainted information” and the act of making the decision as it would be [email protected] broadway quarterly | 2 View all our newsletters online at | www.broadwayhouse.co.uk/newsletters
unjust to render the decision maker’s Further, it was argued the approach As such, the ET was not obliged to act discriminatory “…on the basis of is “over-analytical and would lead consider the other parties’ involvement someone else’s motivation…”. to unnecessary and undesirable nor did the burden of proof require the complexity” and, in cases of “tainted employer to prove a party’s mental The claimant pursued several arguments information”, claimants may be unaware process was innocent where no against this approach. of the perpetrator of the discriminatory complaint had been made about that act until it was too late to “switch…fire”. decision. First, it was argued the “separate acts approach” ignored the reality of the Commentary claimant’s complaint, but Underhill LJ The crucial aspect of Underhill LJ’s dismissed that assertion stating, judgment is the application of the “the analysis must depend on which “separate acts approach” to cases act was in fact discriminatory, not… of “tainted information” and the which most immediately caused the treatment of said information as distinct loss”. to the decision to terminate.
The claimant also asserted the “separate What flows from this is the need for acts” approach meant claimants would Although this argument resonated with claimants to precisely plead their claim, be restricted to a claim against the party Underhill LJ, he stressed that usually a identifying both the acts complained supplying the “tainted information”, discrimination case would stand or fall of and the party/ies to whom they are resulting in inadequate compensation for with the person doing the alleged act attributable. their loss. and that “typically [the claimant will] be well aware of the information… However, if this is not possible at the Underhill LJ accepted there was some [on] which the decision maker acted”. outset practitioners should be aware of merit in this argument but in principle he Additionally, it will only be in rare cases Underhill LJ’s guidance that the tribunal “did not regard it as wrong” as where a claimant is unaware of the true have appropriate case management discriminator so “…as to cause a real powers “…to do justice…” provided case management problem” but, in there is “…a good excuse…”. “ [The employer] these circumstances, the “…tribunal’s ought not to be powers to extend time are ample… Its implications for Respondents will no to do justice…” doubt be welcomed as Underhill LJ’s liable for a loss distinction transfers responsibility from which did not in Importantly, Underhill LJ accepted the decision maker to the party/ies where the decision was made jointly supplying the “tainted information”. fact flow from Y’s the tribunal should consider the mental processes of all those involved. Additionally, the tribunal are only discriminatory act, required to hear evidence relating to or which was not However, in this case, the ET’s finding the motivation of the decision makers that the decision to terminate was made with no obligation to comb through the [a] sufficiently direct by the GM alone, was “unassailable” factual matrix of decisions leading to or foreseeable and, in any event, the claimant’s pleaded the dismissal. case was directed at the GM alone. At consequence of it.” no stage had she sought to amend the pleadings to include any other party. [email protected] broadway quarterly | 3 By Ben Smith specialising in Criminal, Employment and Immigration Law
Proceeds of Crime -Where are we post- implementation of the Serious Crime Act 2015?
• £500,000 (in cash) to be paid immediately;
• £200,000 (in shares) to be paid within 28 days; and
• £300,000 (in realisable property) to be paid within 3 months.
Default sentences Default sentences have also been significantly amended under the new legislation, and in the words of the guidance “simplified”. In reality, Part 1 of the Serious The court can only give an extension they have simply been made longer. of this period where it is satisfied that The new default sentences are less Crime Act 2015 makes a the defendant is unable to comply with complicated in the sense that there are number of amendments an order, but this is limited to where now four tiers of default sentence as to the already draconian assets need to be realised. Even then, opposed to the previous 12. The new the court may now only set the length default sentences are as follows: position in relation to of time for the payment of money due confiscation as set out under an order to a maximum length Amount Maximum Term of 3 months at the confiscation hearing. in the Proceeds of Crime £10,000 or less 6 months Act 2002 (POCA). This A further application can be made article aims to cover to extend the 3 month period to £10,000 to £500,000 5 years a maximum of 6 months (which in brief form the most runs from the date of the original £500,000 to £1,000,000 7 years important changes made confiscation hearing); a figure far less than the 12 months which the court More than £1,000,000 14 years under the new legislation could order under the old legislation. which came into force on Clearly the target of the Government 1 June 2015. It is also now open to the court to is those defendants on high-value allow different periods of time for orders simply choosing to serve a Time for payment payment of different parts of the order, term of imprisonment as opposed Time for payment has been significantly which, in practice, will no doubt either to paying the amount due under it; amended under the new legislation, not be followed or will complicate it is anticipated that the increase of and not in favour of defendants. The matters unnecessarily. The example the maximum sentence for orders amended section 11 POCA deems given in the guidance is of a defendant between £500,000 and £1,000,000 that the full amount payable under a ordered to pay a full amount of from 5 to 7 years, and from 10 to confiscation ordermust be made on £1,000,000 and court now being 14 years for those over £1,000,000 the day the order is made. able to order: will have the effect of deterring this approach.
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On the issue of high-value orders, the Proportionality legislation also ends (under section 10) The Serious Crime Act 2015 the automatic release provisions at the introduces a new provision into halfway point of a default sentence for section 6(5) of POCA providing that confiscation orders over £10,000,000 (at present). The Serious Crime Act 2015 “paragraph (b) (that the also includes power for the reduction court must make an of this figure by secondary legislation, and the imposition of minimum default order requiring him to pay sentence terms in the future; it would the recoverable amount) certainly be of no surprise to see both applies only if, or to the amendments made over the coming extent that, it would not years, if not months. be disproportionate to Whether the default sentence regime require the defendant has been simplified is another matter; to pay the recoverable as practitioners will know, many routine confiscation orders are made for an amount.” amount between £10,000 and £500,000, If it were not clear, it is covered in the and it may well be that it becomes Variation/Discharge of an Order explanatory notes to the Act, that the extremely difficult to advise on an It has long been the case under intention of this provision is to give anticipated default term in these cases. sections 24 and 25 POCA that a statutory effect to the Supreme Court confiscation order may be discharged judgment in R v Waya [2013] 1 AC Compliance orders where all but £50 of the order has 294 as recommended by the Joint Section 13A and 13B are inserted been paid, or where the outstanding Committee on Human Rights. into POCA, placing a requirement on amount is under £1,000 but is a the Crown Court to consider making consequence of exchange rate Conclusion a “compliance order” to assist with fluctuations. It is clear that the Government is keen enforcement. The court may impose to clamp down on the non-payment of any restrictions, prohibitions Section 8 of the Serious Crime Act confiscation orders, and the increased or requirements it considers 2015 inserts a new section 25A POCA default sentence provisions may well appropriate to ensure that to provide that it will now be possible deter those who routinely fail to pay. a confiscation order is effective. for the discharge of confiscation proceedings in a case where the However, the amended provisions In particular, the court defendant has died and either (a) it is in respect of time to pay seem must consider whether not possible to recover anything from misguided; those who have sold his/her estate, or (b) it would not be a house will know that to allow a to place a restriction on reasonable to make any attempt to maximum time of 6 months to market, the defendant’s overseas recover anything from his/her estate. sell and exchange keys on a property is unreasonably optimistic. Time will travel in order to prevent Section 23 of POCA is also amended, the disposal of assets; tell, but it may well be that the only in that a prosecutor (as well as a effect these provisions will have is an this may well include defendant and the court appointed upsurge in enforcement proceedings a requirement that the receiver) may now also make an before the Magistrates’ Courts. application to reduce the amount of defendant surrender his a confiscation order; an amendment passport. which was clearly necessary to facilitate the operation of section 25A POCA wherein the defendant has died. [email protected] broadway quarterly | 5 By Matthew Rudd specialising in Employment and Family Law When is a child not a child? had turned 18. Pursuant to This means that for a person Further, there was nothing s 49(4) of the Adoption and to acquire British citizenship to suggest that the phrase Children Act 2002 (“the 2002 by operation of section 1(5) ‘throughout his life’ should only Act”) an adoption application of the 1981 Act, an adoption be applied in relation to some has to be made before the order must be made by the of the factors which might be child’s 18th birthday and the court while he is a minor, i.e. relevant to the child’s welfare. order could not be made after a person who has not yet If, applying those principles the their 19th birthday. attained the age of 18. practical benefits of adoption for a child throughout his life such The application for an adoption It had not been argued before as, British citizenship, best order was made pursuant to Mr Justice Mostyn at first promoted the child’s welfare, section 1 of the 2002 Act which instance that the granting of the court should ordinarily make provided that the paramount an adoption order would not the adoption order sought. It Matthew Rudd consideration of the court or confer British citizenship on W was not appropriate for a court adoption agency must be the who assumed that if he made to refuse an adoption order as examines the child’s welfare, throughout an adoption order in relation to an indirect means of reinforcing recent Court of his life. MW on the application of FAS immigration controls. the effect of section 1(5) of the Appeal case of Section 1 of the 2002 Act replaced 1981 Act would be to confer If the hearing for the adoption FAS v The Secretary section 6 of the Adoption Act British citizenship on MW. order had been held before 1976 (“the 1976 Act”), which MW turned 18 then he would of State for the provided that the first Mr Justice Mostyn construed have been a “minor” for the Home Department consideration being given to s 1(2) of the 2002 Act as purposes of the 1981 Act and the need to safeguard and applying only in relation to the benefit throughout his life [2015] EWCA promote the welfare of the child the long-term emotional of becoming a British Citizen Civ 951 in which throughout his childhood. repercussions of making an would have meant that an adoption order throughout the adoption order should have he appeared for Section 1(5) and (5A) of the child’s life and not in relation been made notwithstanding British Nationality Act 1981 to other benefits that accrued the flagrant breach of the the Appellant. (“the 1981 Act”) provides throughout the child’s life immigration rules. The appeal by FAS from a that where a court in the UK post-minority. In particular, he refusal to grant an adoption makes an order authorising the considered that the benefits This case highlights that a order in respect of her then adoption of a minor who is not associated with the boy becoming person can be a “child” for the 18-year-old cousin (W) was a British citizen that minor shall a British citizen could not be purposes of the 2002 Act but dismissed. be a British citizen as from the brought into account after he not a “minor” for the purposes date on which the order is made turned 18. Therefore, there was no of the 1981 Act. MW came to the UK from if the adopter or, in the case benefit which the boy would Pakistan with his father on a of a joint adoption, one of the derive from the adoption. However, there now appears visitor’s visa for the purpose adopters is a British citizen and to be precedent for applying of a family visit. He remained habitually resident in the UK. It was held by the Court of Appeal for the adoption of a child who in the UK unlawfully as an that the natural meaning of s is in the UK in breach of the overstayer, after his father Section 50(1) of the 1981 1(2) of the 2002 Act required immigration rules so long as the travelled home, staying with FAS. Act provides that, unless the regard to be had to the child’s hearing takes place before the context otherwise requires, for welfare interests throughout child’s 18th birthday whereby FAS applied to adopt W before the purposes of the 1981 Act his life. There was no limitation he will be a “minor” pursuant he turned 18 but by the time “minor” means a person who as regards the nature of the to the 1981 Act and receive the application was heard he has not attained the age of child’s welfare interests which the lifelong benefit of British eighteen years. should be brought into account. citizenship. [email protected] broadway quarterly | 6 View all our newsletters online at | www.broadwayhouse.co.uk/newsletters
By Stephen Wood specialising in Judicial Review and Criminal Law
blood, one spot of which matched the defendant’s profile; the other spot of blood Has The ‘Rule’ In had not been tested; the prosecution accepted that the trial judge should have acceded to the submission of no case to answer. R v Grant Had Its Day? In R v Sampson and Kelly [2014] EWCA Crim 1968 the evidence against one Stephen Wood analyses exceptionally, the facts were agreed or defendant was DNA evidence alone. assumed and the parties agreed that a In R v Bryon [2015] EWCA Crim 997 the the Judgment of the ruling would be helpful. Thus, the Crown court held that, when a movable item was Court judge should not have proceeded left at the crime scene with mixed DNA Court of Appeal in to consider the submission of no case profiles, one matching the defendant’s, it to answer but, as the prosecution had Regina v FNC [2015] was not on its own sufficient to support consented to that course, the appeal a conviction but, as in R v Darnley [2012] EWCA Crim 1732; CA: would not be allowed on that point. EWCA Crim 1148, evidence of a previous (4 November 2015). A further preliminary point arose out of conviction was sufficient evidence for the the defendant’s interview in which he conviction to be upheld. A complaint to the Police had been made had failed to answer several questions. in 2003 of an indecent assault said to have It is clear from R v Sampson and Kelly Section 34 of the Criminal Justice been committed on a London Underground and R v Adams (Denis) (No 2) that where and Public Order Act 1994 was of no train. The complainant reported it the next day DNA had been directly deposited in the assistance because it concerned failure to the police and handed over the trousers course of the commission of a crime by in interview to mention any fact relied on which she had worn on the previous day. the defendant, a very high DNA match in the defence to the proceedings and, A semen stain was found and DNA was sufficient to raise a case to answer. in the absence of prosecution evidence, profiling tests were carried out. No match As the authorities stood, there was a clear there was no opportunity to see if the was found, but the profile was retained. distinction between such a case and cases defendant would put a positive case. such as R v Lashley where the DNA was In 2014 the defendant was arrested on an On the issue of DNA the Court considered deposited on an article left at the scene. unrelated matter and a DNA profile taken. a number of authorities. In R v Adams (Denis) A speculative search against unidentified In the present case there was no doubt (No 1) [1996] 2 Cr App R 467 it was concluded profiles was carried out and a match was that the DNA was deposited in the course that DNA evidence had to be assessed in obtained. A forensic scientist considered of the commission of the offence by the the light of all the evidence in a case. the chance of there being a match from person who committed the offence. As another unrelated male was in the order In R v Doheny [1997] 1 Cr App R 369 it the match with the defendant was one of one in a billion. was said that DNA evidence, when in a billion, there was accordingly a very combined with sufficient additional strong case against the defendant and The prosecution case was going to rely on evidence to give it significance, was highly plainly a case for him to answer that the the complainant’s account, the evidence probative and, as the art of analysis DNA deposited on the trousers was his. relating to the DNA match and the interview progressed, was likely to become more so. of the defendant. Therefore the decision of the Crown In R v Adams (Denis) (No 2) [1998] 2 Cr Court Judge was wrong in law. Before any evidence was given, the defendant App R 377 the court indicated that DNA submitted, in reliance on R v Lashley [2000] The Court of Appeal left open the evidence could properly be approached EWCA Crim 88, R v Grant [2008] EWCA question whether R v Lashley, R v Grant by the jury on conventional lines. Crim 1890 and R v Ogden [2013] EWCA and R v Ogden were correctly decided Crim 1294, that there was no case to answer. In R v Lashley the court considered and whether the observations in R v The Judge upheld that submission. The circumstances which highlighted the Bryon were correct. They observed that prosecution appealed that as a difficulty of relying on DNA evidence alone. it was important to bear in mind that the terminating ruling. analysis and techniques of analysis had Practitioners will recall that R v Grant was improved markedly in the past decade so The Court of Appeal before turning to the a case in which the DNA of two different that the fact that DNA was on an article issue relating to DNA were critical of the people had been found on a balaclava. left at the scene of the crime (as distinct procedure adopted in the Crown Court. The Court of Appeal held that the Judge from DNA being directly deposited in the should have acceded to a submission of In R v N Ltd [2008] 1 WLR 2684 it was course of commission of the offence by ‘no case to answer’. held that a submission of no case to the offender) might be sufficient to raise a answer should not be made before the In R v Ogden the evidence concerned a case to answer where the match was in close of the prosecution evidence unless, scarf on which there were two spots of the order of one in a billion. [email protected] broadway quarterly | 7 By Susan Sanders - Chambers Pupil
Watchdog or unwelcome visitor: the dual approach to media presence in financial remedy proceedings? “...does not create a presumption that hearings of this kind should be held in private, but merely a starting point. YOUR RIGHT There is a huge legitimate public interest in open justice in family cases, just as TO KNOW much as in criminal, or in civil cases.”
? In that case he invited submissions from the parties on the issue of hearing the case in open court, but none were made. It was held that the matter should be held Mr Justice Mostyn has recently given two in open court and Holman J quoted Jeremy Bentham, “publicity is the very soul of justice. It is the keenest spur judgments that highlight the Family Court’s to exertion and the surest of all guards against improbity. divergent approach to the presence of the It keeps the judge himself, while trying, under trial”; media in private financial remedy proceedings In June this year, in Fields v Fields ([2015] EWHC 1670 after divorce. (Fam), Holman J reiterated his opinion that there was “a pressing need for more openness in divorce financial In October, in the case of famous singers Nicole remedy proceedings” while recognising that the public Appleton and Liam Gallagher ([2015] EWHC 2689 nature of that hearing caused distress to the parties. (Fam)), Mr Justice Mostyn granted the News Group His view was that their distress could not override the Newspapers the right to appeal with the hope that the importance of court proceedings being open and Court of Appeal will clarify the approach to be followed transparent, as far as possible. in these proceedings.
Mr Justice Mostyn highlighted the differing approaches “To say that the law about the ability of the Family Court in DL v SL ([2015] EWHC 2621 of the press to report ancillary relief (Fam), in which judgment was handed down in July 2015. Mostyn J set out his displeasure at the state of proceedings which they are allowed the law and the practice of the family court regarding to observe is a mess would be a the matter of media presence in financial remedy serious understatement.” proceedings. While recognising the importance of publicity “to secure the probity of the judge, and (Mostyn J, Appleton v Gallagher). to enhance the veracity of witnesses” as well as to “promote understanding and debate” about the legal There is a clear divergence of opinion and approach process, he emphasised that “publicity is not an between Mr Justice Mostyn and Mr Justice Holman absolute principle”. He explored the options that are regarding the privacy of proceedings in family courts, open to the court such as anonymisation of judgments, financial remedy proceedings in particular. Last year, in or public hearings with private details preserved Luckwell v Limata ([2014] EWHC 502 (Fam)), Holman J in reports that fall between total transparency and held that rule 27.10 of the Family Procedure Rules complete privacy. [email protected] broadway quarterly | 8 View all our newsletters online at | www.broadwayhouse.co.uk/newsletters
Courts are used to carrying out the balancing exercise this area of law needs clarification and that in his view, with the right to privacy, enshrined in Article 8 of the financial remedy proceedings should be conducted European Convention on Human Rights (ECHR) on the in private. Two exceptions were set out when the one hand and Article 10 ECHR and the right to freedom balancing exercise was clearly, in his belief, in favour of expression on the other. Mostyn J stated that the right of publicity, on proof of iniquity and to correct false to privacy will always win over in cases that are “so impressions and misreporting. In Appleton v Gallagher personal and private”, as in financial remedy proceedings. he performed a balancing exercise of Articles 8 and He cites several sources of this right to privacy: 10 and found that there should be an order restricting media reporting of the proceedings. a) Rules 27.10 to 27.12 of the Family Procedure Rules and Practice Direction 27B which set out that The way forward? these hearings are to be in private, albeit with the Mr Justice Holman has suggested that it is up to the possible presence of the media; parties whether or not to make their case public as they b) Case law confirming that the media cannot report could choose to settle, thereby avoiding public scrutiny. on these proceedings without leave to do so (Clibbery Mr Justice Mostyn took this up, however, suggesting v Allen (No 2) [2002] EWCA Civ 45)’ that parties may settle out of court on disadvantageous c) Article 14 International Convention on Civil and terms simply in order to avoid the glare of publicity. Political Rights (ICCPR) which sets out that “(a) the It seems to be a case of ‘Watch this space’ to find out press or public can be excluded from all or part which approach, if either, the Court of Appeal may endorse of the trial when the interest of the private lives “of to provide clarity to the Family Court in this important area. the parties so requires; and (b) that judgment is not required to be public where the proceedings concern By Susan Sanders - Chambers Pupil matrimonial disputes; d) Judicial Proceedings (Regulation of Reports) Act 1926 which applies to financial remedy proceedings as well as the divorce itself. This has Publicity on proof been questioned by President Munby but Mostyn J respectfully disagrees. of iniquity Mostyn J added that even if the rules did provide for Following hot on the heels financial remedy proceedings to be heard in public, of the judgment in Appleton the parties would be entitled to anonymity and v Gallagher was Velupillai confidentiality of their financial affairs. He recognised v Vellupillai (2015 EWHC in the financial remedy that the press would want to report cases where they 3095 (Fam)) a case in which proceedings including four have a recognised name to hang the article on, but did Mr Velupillai’s ‘proof of appeals by Mr Velupillai. not believe that parties should waive their right to privacy iniquity’ did forfeit his right Over the course of those in order for a media report to be more attractive. to privacy in the eyes of proceedings he was Mr Justice Mostyn. removed from the courtroom Mostyn J suggested that if these cases were to be Mr Velupillai was a litigant by security, assaulted his heard in public, the press would also have a right to in person who had been wife and her counsel and access the documents, provided for by CPR PD5.4C committed to prison for was convicted of assault in and rule 31.22(1) that journalists should have access contempt after threatening Magistrates court. He then for journalistic purposes. to kill his wife and her travelled abroad and skipped barrister in parallel his sentencing hearing This issue was revisited in Appleton v Gallagher in proceedings over a before bombarding court which Mostyn J considered whether to modify or lift “bogus loan” asserted by with 45 abusive emails the reporting restrictions placed in the case by the his sister. Over 30 saying he was fatally ill and trial judge. He echoed his sentiments in DL v SL that hearings had been held sought an adjournment. [email protected] broadway quarterly | 9 By Abigail Langford specialising in Criminal Law
Criminal Barristers - Who do we think we are? called thief takers, who would act to recover Sadly in recent times stolen property, supposedly with ‘no questions asked’ many of whom went on then to give there has been many Queens evidence for handsome rewards. This was of course of some concern to the a comment, that the government, and so it was, that in conjunction with solicitors beginning to undertake what death of the criminal we would recognise as litigation work from the late 17th century, meant that the whole bar is imminent. system was beginning to take shape. Cuts to legal aid, two tier contracting, and the Changes in the penal system, with an ever increasing numbers of solicitors needing increasing number of defendants being to do their own work in the Crown Court, mean transported to Australia, and many being that for many this seems to be the case. It is sent to prison meant that it was desirable for in major cities and the legal system was however, perhaps heartening to remind ourselves counsel to be involved in the trial process. beginning to resemble that of today. Even those who were not represented began next time we stand in front of a Judge as a The Victorian era saw a huge increase in the for the first time to challenge the court, criminal barrister, that we are there as a result crime levels, mainly as a result of the Industrial witnesses and prosecutors, much more like of evolution of the legal system that stems back Revolution. The Victorians were extremely the adversarial system we use today. to the 18th Century. We may fear change, but we concerned about crime, and as a result the are involved in a system, which has undergone One of the most notorious criminal barristers Bar flourished in this era. The public held dramatic change. around this time was William Garrow, it is said a great fascination with the justice system, The criminal trial is viewed today as the corner that he appeared in over a thousand trials in a and courtrooms would often be packed stone of the justice system, however, barristers ten year period, from 1783. with members of the public wishing to see defendants being tried, especially in serious were not in fact involved in the criminal trial It is said that the Judiciary did not contemplate cases. Although capital punishment was by until the 18th Century, and not in any great the importance that counsel would ultimately this time restricted to those crimes of treason, numbers until the early 19th Century. Before play in the criminal trial when they first allowed rape and murder, other cases still held a high that a criminal trial took the form of a direct prosecution counsel to appear. In fact the degree of intrigue for the public. Press reporting confrontation between the prosecutor - appearance of counsel for the defence over of cases meant that members of the Bar usually the victim, and the defendant. First the course of the century changed the legal received almost celebrity like status and many the prosecutor presented the case against system, and molded it into how it is today. became household names. In fact before 1845 the accused, supported by witnesses, all of Some of the most important rules of evidence, Law Reports were prepared by the press such whom testified under oath. The defendant, such as the presumption of innocence, the was the public demand to be kept updated who was not put under oath, was then asked fact of a defendant being found guilty beyond about what was happening in the courts. to respond, supported by any witnesses (who, reasonable doubt, and the rule against hearsay, from 1702, did testify under oath). Cross- were as a result of some of the courtroom battles. The growth and modernization of the Bar examination was conducted by judges, the continued at such a pace that in 1920 Ivy A shift then began to emerge with more focus parties, or, increasingly, lawyers. The judge Williams was the first woman to be called to for the first time, being on the prosecution to then summed up, and the jury supplied its the Bar in England. Prior to that there had a prove their case, with defendants being verdict. In most cases, the whole process existed a prohibition on women being encouraged to remain silent. In fact there took less than half an hour. The jurors were all barristers, but this was lifted in 1919 by the were many more acquittals as a result of the men who were frequently from a higher social Sex Disqualification Removal Act 1919. emergence of defence counsel. With the background, than the defendants they tried. Ivy Williams did not practice however, and exception of cases of murder, however, this instead was an academic barrister. The first This, combined with the speed of trials, and the shift occurred only for those who could afford female barrister to appear in a criminal trial difficulty of putting together a case for the the cost of a lawyer. In the 1820s, judges was Helena Normanton QC. She was the first defence, if they were in prison, put defendants began to assign lawyers to speak on behalf female counsel to appear as lead counsel for at a considerable disadvantage in the courtroom. of prisoners accused of serious offences. It the prosecution . Barristers then began to appear in criminal was also possible for poor prisoners to secure trials from the early 18th Century, as a result legal representation by applying to defend And so from the days of no women at the Bar of the war of the Spanish Succession. free of charge or to find funding for legal and lay prosecutors and police, the justice Prosecutors were funded by the Government assistance through a benefactor. The sheriffs system has undergone remarkable change. to prosecute the most serious cases. This of London provided a fund for such assistance Whether there will still be barristers around to ultimately brought about concern that the trial from the early nineteenth century. However, write an article about those practicing in the process was unfair, if the prosecution was relatively few defendants benefitted from these 21st Century remains to be seen, but then represented but the defence wasn’t, and so provisions. It was not until the Poor Prisoner’s I’m sure if someone had said in the 1800s Judges began to allow defence barristers to Defence Act of 1903 that an effective form of that eventually there would be women at the appear from the 1730’s. It is thought, that this legal aid was introduced. By the late 1800’s Bar and professional police forces, you would stemmed from cases being brought by so formal police forces had been established have laughed. 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Chambers News New members We welcome our new recruits to the chambers.
Jon Gregg Zira Hussain Jake Ellis Joining our Criminal team from Zira was called to the Bar in Jake, a former pupil in Chambers, Manchester chambers Jon October 1998 and now has accepted an invitation to prosecutes and defends cases specialises exclusively in family join Chambers. He is now a very commensurate with his 25 years’ law. Her principal areas of welcome tenant. He undertakes experience at the Criminal Bar. practice are financial remedies work across a broad spectrum He is recognised as a “Leading and private law children matters. of areas – Immigration Law, Civil Criminal Junior on the and Commercial Law, Family and North-Eastern Circuit” by the Zira represents both privately and Employment Law. An employment “Legal 500”. publicly funded clients. Zira is article by him appears at page 1 fluent in Urdu and Punjabi and is of this newsletter. He is a member of the C.P.S. content to conduct conferences Rape Panel, and has particular and take instructions in these expertise in POCA proceedings. languages. A full resume of Zira The wide breadth of work Jon has and her practice appears on our undertaken and many important website. cases appear in his profile on our Chambers website. For further information about our new tenants please ring the clerks on: 01274 722560 or email: [email protected] Pupils
Both Susan and Christopher have joined Chambers as pupils. They will be both completeing mixed Susan Sanders Christopher Styles pupillages. [email protected] broadway quarterly | 11 View all our newsletters online at | www.broadwayhouse.co.uk/newsletters
Chambers News Members of Chambers
Michelle Colborne QC Tahir Khan QC John Topham Rodney Ferm It was with great sadness that we learnt of John’s death in Martin Wood September. The high esteem in which he was held by the Judiciary Paul Isaacs and the Bar was evidenced by the packed courtrooms in Bradford Rae Cohen Gordon Shelton and Leeds for his eulogy. David McGonigal John was scrupulously fair whether he prosecuted or defended. Ian Howard Nicholas Askins One could trust what he said, even though he occasionally said Paul Wilson it with a disarming twinkle in his eye. He would fight for his cause Sophie Drake without fear …until he was told to sit down by their Lordships in London! Robert Cole Stephen Wood Unfortunately John’s health prevented him enjoying his last years. He resigned himself Benjamin Crosland to moving slowly, but he never complained, he accepted his deteriorating ability to Gerald Hendron walk any distance and he remained his ever cheerful and good humored self. Rebecca Young Matthew Rudd Chambers will miss his presence and easy going nature for he was a true gentleman. Jayne Beckett Nicola Peers Criminal Law Seminar Camille Morland Best of Three Debate! Tasaddat Hussain Wednesday 5th October....2016. Ian Miller Many of you have previously attended Matthew Parkinson seminars presented by senior Criminal Helen Williams Team Practitioner, Stephen Wood. We Ken Green Imran Khan In October Christian wanted to give you early notice of next year’s event, which will forge new ground. Emma Downing Durham-Hall was the Semaab Shaikh Instead of a single 60 plus minute seminar winner of the “Best Peter Hampton we are proposing to run a full-day Chris Brown of Three Debate” seminar on the 5th October 2016. held at Mills and Alexander Modgill We are intending to present a number of Nicholas Power Reeve’s office in talks of interest to criminal practitioners Sharn Samra Leeds. He debated over the course of the day, beginning at Nigel Hamilton three current family about 9:00am but finishing by 5:00pm. Rachel Mellor law topics: whether Kirandeep Dhillon Lunch and CPDs will be provided. the Court of Appeal Afshan Hashmi Full details including speakers and topics will Abigail Langford made the right Christian Durham Hall decision in be forwarded in the New Year. So put the Clare Benson Sharland and date in your diaries now to avoid any court Paul Smith Gohill; whether commitments that day. Niall Carlin pre-nuptial Please contact Val Verity in Chambers to Abdul Latif Shakoor Emily Ward agreements provisionally book your place. Ben Smith are worth the Jonathan Walker-Kane Adam Willoughby paper they are Leavers and Claire Larton have Kerry Barker written on and left chambers to continue their careers in Mark Brookes whether spousal Laura McBride different parts of the country. Nigel Jamieson maintenance should be for a fixed term Andrew Kershaw has retired to enjoy his Jake Ellis and fixed percentage. District Judge Lingard sat outdoor pursuits in ‘God’s own country’. in judgment. An enjoyable night was had by all. Door Tenants: Chambers wishes them all well. Gillian Irving QC Video Conferencing facilities are available for use in our Bradford chambers. Jamie Hill QC The use of video conferencing can save much time and money. If you would Alex Verdan QC like to book the facility please contact Mrs Verity at: [email protected] Jason Galbraith-Marten QC Contact Matthew Stott Georgina Clark Syan Ventom Broadway House Broadway House Email: [email protected] Daniel Stills 9 Bank Street 1 City Square Web: www.broadwayhouse.co.uk BRADFORD LEEDS Senior Civil Clerk Disclaimer: Any views/quips West Yorkshire West Yorkshire Robin Slade expressed in the newsletter are those of the editor (David McGonigal) BD1 1TW LS1 2ES Senior Criminal Clerk and should not be taken to represent Tel: 01274 722560 Tel: 0113 246 2600 David Rhodes those of chambers. Fax: 01274 370708 Fax: 0113 246 2609 Director of Marketing & Administration No article may be reproduced DX: 729860 Bradford 22 DX: 26403 Leeds Park Square Helen Craven without the permission of the author. [email protected] broadway quarterly | 12