Edward Fennell’s Legal Diary – Edition 8
Short thought for the week
The bucolic merriment of our suitably ‘socially distanced’ VE Day street party suddenly went sober when a senior in-house lawyer with a retail property business revealed how stressed he and colleagues are right now. More alarming though was his added comment about the violent and abusive language which is increasingly featuring in negotiations – including even from FTSE100 companies. And by ‘violent’ that is exactly what he meant. Some businesses are getting so desperate it seems that, having abandoned any expectation of the courts being able deliver remedies, they are considering more direct means to resolve disputes. Depending on how long the C-virus crisis continues a break-down in law and order cannot be ruled out. Complacency over this could be as damaging as the Government’s late start in dealing with the virus itself.
Legaldiarist
p.s in this context also see Lexpod of the Week from Dentons at bottom of this edition.
The legal diary of the week
With Hindsight
It is looking increasingly likely that a statutory public inquiry will need to be held into the government’s handling (mishandling?) of the Covid-19 crisis following demands from the likes of Sir Bob Kerslake, Amnesty International, the TUC and Liberty (and no doubt many more by the time we get out of lockdown).
A blog this week from Sophie Kemp, a partner at Kingsley Napley, lays out the case for the inquiry with an emphasis on the obligations imposed on the Government by Article 2 of the European Convention of Human Rights (“ECHR”) which states that ‘everyone’s right to life shall be protected by law’.
“It is non-derogable, placing two substantive duties on the government: (i) an obligation to refrain from taking life, and, (ii) a positive obligation to take appropriate measures to safeguard life,” says Kemp who identifies the following issues as being potentially relevant to the number of deaths from Covid-19; early decision making/pandemic planning; the way in whoch hospital patients were discharged to care homes; PPE guidance; and PPE supply and resourcing.
“The decision to order a COVID-19 Inquiry will require significant political bravery,” adds Kemp. “Some of the most difficult decisions a government has ever had to make will fall under the spotlight, and, as the crisis continues to unfold, future decisions may also come into focus.”
For more go to http://www.kingsleynapley.co.uk/insights/blogs/public-law-blog/the-future-public-inquiry-into-covid-19
Get well soon
Now here’s a timely bit of academic innovation from Kent Law School at the University of Kent. Latching on to the idea that one or two people might be pondering the relationship between the law and what’s going on in our hospitals right now they have come up with a ripping idea for a new Masters programme in Law and Health. Opening in September – for those healthy enough to survive that long – it is cunningly designed for those coming from both the law and the health sectors.
Without too much sense of irony the University observes “This year, a sustained focus on the issues raised by responding to COVID-19 will offer a jumping off point for broader study.” Aha, one thinks, what broader study might that be ? The enforceability of social distancing? Who can sue whom for an absence of PPE? What should be the penalties for those who refuse to clap the NHS?
Actually Professor Sally Sheldon, a specialist in health care law and ethics, has already got it worked out. ‘Covid-19 has affected all of us in multiple ways and, as a society we are struggling with the acute legal issues it raises,” she says. “How far is right to curtailing individual liberties to protect public health? How far should legal standards and regulatory controls be relaxed in light of the pandemic? What is the pandemic revealing about social inequalities in health and how law can address them? The Kent LLM offers a space for studying these issues in light of the broad principles of health law.”
For those who think that pandemics are here to stay this might be a smart addition to the CV.
Prison break-out
Looks like the UK might be in the dock over the way its prisons are failing to accommodate convicts feeling threatened by COVID-19. This follows a petition by a woman prisoner at HMP Downview to the UN Special Procedures Branch, to intervene in the way the UK Government is, allegedly, mismanaging the COVID19 crisis and putting her own, and other prisoners’ lives at risk.
The petition is being presented by Carl Buckley, a barrister at Guernica 37 International Chambers, and it addresses what it describes as the ineffectiveness of the Ministry of Justice’s actions to address the problem of COVID19 in prisons. No great surprise that the lack of coherent implementation of stated policies comes high on the list of complaints together with failures to expand the scope of the temporary release scheme.
With the aim of ‘avoiding a public health catastrophe both within prisons and beyond’ the campaign is three-pronged with approaches made to the Working Group on the Issue of Discrimination Against Women in law, the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health; and the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It is supported by View magazine (‘a publication for and by women with conviction’) and looks likely to give Lord Chancelllor Buckland yet another headache .
Pension Alert
The pressures and dilemmas created by the C-virus are so widespread that it’s hard to keep track of them all. Vikki Massarano, a partner at specialist pensions law firm Arc Pensions Law, has drawn attention to what is happening in the pensions field where The Pensions Regulator has called on retirement fund trustees to stay vigilant for companies paying out dividends and “excessive” bonuses if this weakens financial support for company pension schemes.
In these exceptional times a certain amount of latitude is being given by the regulator but, says Massarano, trustees and employers should remember that recent relaxations about payment of deficit contributions and TPR’s enforcement activities are ‘only temporary’. “While it is acceptable to take unprecedented steps to deal with this unprecedented crisis, employers should not expect those to continue unchecked and trustees will need, as ever, to make sure they are being treated equitably and that members are not losing out to shareholders or other creditors,” warns Massarano.
Of course, sadly, for some people approaching retirement age right now the Grim Reaper might be an even bigger threat than less diligent pension fund trustees.
No licence to arrive
Skulking in the corners of public awareness – but shy of showing its face – Brexit has not gone away. However, checking out suspicions of national unpreparedness for great crises, specialist immigration law firm Migrate UK has discovered that as of now a mere 2% of UK employers possess a licence from the Home Offce to sponsor EU workers from 1st January 2021, the date of definitive departure from the EU. “With sponsor licence applications normally taking three months on average, and now much longer due to Covid-19, a large majority of UK employers are cutting applications to the wire and risk not being ready for this unique change in UK immigration law,” says Jonathan Beech, Managing Director of Migrate UK.
According to the Government’s current register of sponsors just over 31,000 out of a total of 1.4 million private sector employers in the UK hold a licence. “This is not only worrying for the future of individual UK organisations having the talent in place to thrive and grow the other side of the current pandemic, but for the future of skills in the UK as a whole,” says Beech.
Commentary of the week –
The biggest miscarriage of english justice of modern times?
Barrister PAUL MARSHALL and solicitor NICK GOULD reflect on the continuing scandal of the Post Office‘s HORIZON accounting system whose fundamental failures and errors led to imprisonment and ruin for scores of totally innocent sub-post masters.
Between about 2000 and 2017 the Post Office (PO) prosecuted well-over 500 of its sub-postmasters (SPMs) whom they accused of theft arising out of alleged financial shortfalls shown in branch PO computer records. In their defence, the sub-postmasters contended that the shortfalls were the result of computer problems with the PO’s then new Horizon IT system developed by Fujitzu. But consistently, during a long series of trials the PO asserted that the Horizon system was “robust and reliable”.
However in December 2019 – in group litigation brought by 557 SPMs – the truth emerged that, in fact, huge numbers of detailed computer error records had been held for many years by the Post Office showing that it was aware of the computer problems in Horizon. The effect of these was to generate misleading ‘phantom transactions’ as the SPMs had always claimed.
Had the PO disclosed those error records then the prosecutions of the SPMs would have been undermined. The IT bugs didn’t cause payments received to disappear – what happened was that they appeared elsewhere without explanation. Indeed coincidental with the SPM prosecutions the actual “missing” monies were turning up in the PO central suspense account! But being unexplained they were credited to the PO’s own accounts. Nonetheless the PO pursued the SPMs to recover the sums whoch were alleged to be owed despite having suffered no loss. In fact, the PO actually profited from the prosecutions while bringing personal and financial ruin to its SPMs.
The criminal consequences were dire. The youngest PO employee convicted was aged just 19 when sent to Holloway (20 years ago). One SPM was eight weeks’ pregnant when imprisoned. There have also been suicides and nervous breakdowns and the destruction of families. Many SPMs invested life savings in acquiring their PO branches and lost everything. They were left destitute and many became unemployable as a result of their convictions.
And Next?
Until 2019 the courts failed the SPMs at almost every point An important legal evidential presumption that documents produced by a computer are taken as the product of a reliable operating system – unless the defendant can show that presumption to be wrong – has been shown to be seriously unsafe (and impossible in practice because of the disparity in information/knowledge).
The position now is that the Criminal Cases Review Commission has referred an unprecedented 39 cases for review by the Court of Appeal. There are more than 20 others still pending decision. The common basis of the reference is “abuse of the process of the court” by the PO. It seems likely the convictions will be quashed. A large number of separate prosecutions have now been referred for review by the PO itself to a specialist crime/fraud solicitor’s firm.
What is also highly striking is that the judge involved in the case – Fraser J – found that some of the evidence given to him on behalf of the Post Office was misleading. Meanwhile, in relation to the Fujitsu dimension, Fraser J said, “Based on the knowledge that I have gained.. I have very grave concerns regarding the veracity of evidence given by Fujitsu employees to other courts in previous proceedings about the known existence of bugs, errors and defects in the Horizon system.”
Maybe not surprisingly the judge has now referred some witnesses from Fujitsu to the Director of Public Prosecutions and it is believed that a police investigation is currently under way. Meanwhile a judge of the Court of Appeal described an (unsuccessful) appeal by the PO as “ founded on the premise that the nation’s most trusted brand was not obliged to treat their SPMs with good faith, and instead treat them in capricious or arbitrary ways which would not be unfamiliar to a mid-Victorian factory owner.”
We should all watch the outcome of these cases with interest.
Paul Marshall is at Cornerstone Barristers and Nick Gould is with Aria Grace
LISTEN OUT!
STARTING 1.45 pm 25 MAY BBC Radio 4 The Great Post Office Trial
For more: see https://www.bbc.co.uk/programmes/m000jfyv?utm_source=newsletter&utm_medium=email&utm_campaign=a_mixed_bag_of_goodies&utm_term=2020-05-12
Appointment Of The Week
Joanna Pratt, Senior Partner – Thomson Snell & Passmore
Thomson Snell & Passmore, the oldest law firm in the world (as recognised by The Guinness Book of Records) has just marked another notch in its history as it prepares to celebrate its 450th anniversary. By appointing Joanna Pratt as new Senior Partner to work alongside the CEO Sarah Henwood it means that women will occupy the two top jobs in the firm for the overseeing of the anniversary celebrations. Highly appropriate given that the firm was founded when Queen Elizabeth 1st was on the throne
“As a firm, we have always strived to be diverse and forward looking,” says Pratt. “This is reflected in many ways across the firm, as well as in the fact that for the first time in its history, Thomson Snell & Passmore will have a female Senior Partner and CEO. I am looking forward to working alongside Sarah to support our employees and local communities and ultimately continue to deliver outstanding client service.”
Specialising in family law Joanna Pratt was admitted as a solicitor in 1993 and has previously served as Her Majesty’s Deputy Coroner for East Sussex. She is a trained ‘collaborative lawyer’ and no doubt this will assist her as she takes the firm into its new business plan in the midst of the challenges presented by the C-virus.
Her predecessor James Partridge, the senior partner for the past twelve years developed the firm through organic growth from a base of 171 people with £13 million fee income to over 250 people and a fee income of over £22 million, with 30 practice areas ranked by Chambers UK and The Legal 500. Taking that forward into the immediate future dominated by Brexit and Corona will certainly be a baptism of fire for the new Senior Partner!
Art work of the week from Clifford Chance
Artwork by Gabriel Choto, who won the Clifford Chance Postgraduate Printmaking Purchase Prize in 2019.
Nigel Frank and Jane Hindley, art curators for Clifford Chance, describe how the firm’s ambitious art programme has been hit by the C-virus but how their plans continue.
The art collection at Clifford Chance, initiated in the late 1990s, focuses on the art of printmaking in Britain from the times of Hogarth to the latest work made by postgraduate printmakers. The 1500 or so original prints reveals how artists over the years have sought to bring not only delight and pleasure but also perception and comment about the wider society.
Pre-Covid 19, Clifford Chance’s art committee had planned and installed in their London premises the exhibition Turbulent Times, featuring paintings and prints by the artist Adrian Hemming and the political commentator Andrew Marr, an avid painter who is mentored by Adrian. Referencing both the UK’s shipping forecast zones and the Brexit debates, the artworks now lack an audience, waiting for the re-opening of the building when the ‘new normal’ finally arrives.
Also hanging unseen is an artwork by the young artist Gabriel Choto, who won the Clifford Chance Postgraduate Printmaking Purchase Prize in 2019. Gabriel was born in Zimbabwe and moved with his family to Bradford when he was three (he was, in part, inspired to become an artist by the example of fellow Bradfordian, David Hockney). Ancestral Passage is an imaginative work that refers to Gabriel’s position between two cultures, and the significant personal absence, through migration, of a ‘rites of passage’ dialogue with his ancestors.
A 2019 graduate from Central St Martins art college, Gabriel’s hand painted etchings were selected for the annual exhibition surveying the best graduating student printmakers from London’s art colleges, which Clifford Chance have organized annually for the last twenty years. As a cohort of graduating art students are struggling during the crisis to bring their work to the attention of a wider public – acute at this time of the college calendar when they are finalizing their work for the final degree shows – it is incumbent on those who can support these young artists should do so if we are not to lose the insight of a generation of creativity. Clifford Chance intends to continue with their support for these students.
Lexpod of the week from Dentons
Dentons Business Crime and Investigations Podcast series, fronted up with the perfect slightly rasping tone by partner, Darren Allen, is definitely one to catch. Hear it at
We’ll be back again next Thursday. Please send your stories and comments to the Legaldiarist at fennell.edward@yahoo.com