Diary news plus insights, commentary and appointments from the legal world

7 February 2025

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: Desert Island Risks

If you enjoy the privilege of WFH then you might haver indulged yourself this morning by listening to the latest edition of Radio 4’s Desert Island Discs. This week’s castaway was Nemone Lethbridge, a member of what might be called the second generation of pioneering female barristers. Although the first women had qualified thirty years earlier it was still extremely difficult to get established in Chambers in the 1950s.

Alongside her determined account of overcoming prejudice, however, one of the most gripping and perplexing aspects of her story was her relationship with her most high profile clients – the East End gangsters, the Kray Brothers. It distilled that profound issue of how lawyers can act for people who might have done terrible things – in the case of one of the Krays the accusation was murder. Did she ever feel nervous with them? Not at all – they were always perfectly polite and well-dressed. Moreover she remained in contact with them long after their professional relationship was over.

If you missed it, do listen https://www.bbc.co.uk/sounds/play/m0027l20 – prison gruel for thought.

The LegalDiarist

In this edition

+ LEGAL DIARY OF THE WEEK

Cloudy Over South Mimms thanks to Farrer & Co

Qualified Support from CILEX for Intermediate Courts

Direct Marketing : What could go wrong?

Direct Marketing : What could go wrong?

+ LEGAL COMMENT OF THE WEEK

on security and privacy vulnerabilities at DeepSeek and elsewhere, coercive control, boosting nature, depriving children of their liberty, ‘grey belt’ proposals and assaults on retail workers.

+ APPOINTMENTS OF THE WEEK

at PILLSBURY and MICHELMORES

LEGAL DIARY OF THE WEEK

Cloudy Over South Mimms thanks to Farrer & Co

Best known to most Legal Diary readers for its Welcome Break service station on the M25 South Mimms is about to add an even more significant attribute to its national profile. On the basis that ‘location is everything’ this distinguished adjunct to Potters Bar will shortly be hosting the ‘DC01UK’ development which is set to become Europe’s largest cloud and AI data centre.

Impressed? Well, you should be – the project has received outline planning permission from Hertsmere Borough Council, ‘marking a significant advancement in the UK’s digital infrastructure’. And the legal brains behind this?  Farrer & Co is one of the firms whose partners will now, no doubt, become regulars in the famed KFC and Game Zone of the service station.

“With a construction value of approximately £3.75bn, the delivery of the state-of-the-art data centre will also generate several billion in direct and indirect investment,” points out the firm.

The approved plans also include, it seems, a suite of local benefits, such as significant upgrades to local cycling and bus routes, linking the site to Potters Bar, possible expansion of the local cycle hire scheme, and harnessing and redistributing excess heat from the facility to new local homes and businesses.

James Maxwell, Partner at Farrer & Co, said, “This is a landmark project for the UK’s digital infrastructure, and we’re proud to have been involved.”

Let’s hope that no NIMBYs start protesting in the on-site Waitrose.

Qualified Support from CILEX for Intermediate Courts

How to solve the growing crisis in the country’s courts?

It was striking how quickly the offenders involved in last August’s anti-refugee riots were arrested, held to account and sentenced but a whole system cannot be run on the basis of such an Emergency regime. Hence the proposal in Sir Brian Leveson’s independent review of the criminal courts for the introduction of intermediate courts which would take over cases too serious for magistrates’ courts but not serious enough for the Crown Court heard by a judge and two magistrates.

Unsurprisingly, maybe, the debate about the proposal has highlighted splits within the legal profession. CILEX, for example, says its practitioners are divided on whether the change will result in better justice for victims – although on both sides there is recognition that swifter justice will be beneficial. Consequently what CILEX now wants is “assurances and safeguards to ensure that access to justice is maintained or increased” while highlighting the benefits of jury trials which “have been shown to provide a more equitable, and therefore more just, conviction”.

If magistrates are to sit in these new intermediate courts and be awarded the power to hand down sentences of over two years, then they would need a suitable qualification, argues CILEX. This could involve, for example, having sat in the magistrates’ court previously for a number of years or having other legal experience such as being a paralegal or having undertaken a Level 3-6 legal qualification.

“Victims, defendants and all those working in the criminal justice system are currently being failed by systemic problems that have remained unresolved for years and have resulted in a backlog of over 73,000 cases,” commented CILEX president Yanthé Richardson. “Cautiously, we support the creation of intermediate courts as a means of freeing up Crown Court time and bringing swifter justice for victims of crime but we are realistic about the challenges faced. Government will need to provide additional funding and resources if the benefits of this reform are to be realised.”

Try ‘Diversion’ Urges the Bar

Meanwhile the Bar Council has adopted a rather different tack to the Leveson recommendations. “Changing the fundamental structure of delivering criminal justice is not a principled response to a crisis which was not caused by that structure in the first place,” the Bar argues.

According to Bar Council Chair Barbara Mills KC, “The current system is capable of working if sufficiently resourced. Funding for justice should be in line with the demands made of the system. We recognise that the present economic landscape is challenging, but that is not a justification for a total change to how some cases should be tried.”

Mills went on to explain that the Bar Council had put forward alternative approaches to increase efficiency. All of them should be tried before making structural changes that remove the right to trial by jury in some cases, she argued.. “An intermediate court is simply not the answer.”

What the Bar Council proposes, instead, is a new model for ‘diversion’. This would mean that some first-time, low-level offenders would – after admitting responsibility for what they’ve done – not face trial or prison. Instead, they will be ordered to do one or more of the following:

• Pay compensation
• Engage with a victim or representative body
• Drug/alcohol rehabilitation
• Behaviour management
• Educational or vocational training  

The model would reduce trial ‘receipts’ (that is the number of cases coming in), which the Bar Council argues is the real cause of the record high Crown Court backlog. Moreover, diversion measures elsewhere in the system have been found to result in greater victim satisfaction as well as improved rehabilitation prospects for offenders. A way forward at last?

Direct Marketing : What could go wrong?

In what could be an important step forward in enabling people to comply with UK law the Information Commissioner’s Office (ICO) has  launched a free online tool which checks whether direct marketing activities satisfy the Privacy and Electronic Communication Regulations. It means that within a matter of minutes small organisations will be able to access reliable compliance advice, tailored to their own direct marketing activities. “The tool, which covers email, SMS, direct mail, social media, telemarketing and more, makes it quicker and easier for small organisations to access the right advice for different types of direct marketing,” says the ICO.

By answering a few simple questions, the tool will bring the relevant guidance together in one place. This means that organisations can spend less time working out which advice applies to their particular direct marketing activities, and, as the ICO puts it, ‘more time getting on with running their business.’

“Direct marketing can be a great asset to any organisation when it’s done correctly and lawfully,” said ICO’s Head of Business Services, Faye Spencer. “This new tool, coupled with our privacy notice generator launched last year, aims to make data protection compliance simple and stress-free for all organisations.  We’d love for you to try the direct marketing advice generator for yourself, and fill in the feedback form when you’ve used it. We want to make sure all our products and services meet the needs different types of organisations, and your feedback is invaluable in helping us to do this.” 

The tool has been designed explains the ICO, with small organisations in mind, who might have less time and resources. However, it is available for anyone to use – whether the organisation is a sole trader, start-up, a small or medium sized organisation, or a charity, group or club.

While law firms are unlikely to need the tool themselves it might well be of use to some of their smaller clients.  Jason Owen, Account Manager at Geoff Smith Associates Ltd, commented, “As a software developer, selling into the data protection and information governance space, the ICO’s direct marketing advice generator is an excellent tool that I have used for checking my existing, and finding out new, knowledge. It’s also very quick and easy to use.” 

Find out more at: https://ico.org.uk/for-organisations/advice-for-small-organisations/checklists/direct-marketing-advice-generator/ 

LEGAL COMMENT OF THE WEEK

TOPIC: Security and privacy vulnerabilities at DeepSeek and elsewhere

COMMENT BY: Dr Ilia Kolochenko, Partner & Cybersecurity Practice Lead at Platt Law LLP

“Whilst privacy, safety and even national security risks stemming from the imprudent use of DeepSeek may be perfectly reasonable and justified, many people are still missing the forest for the trees. Numerous other GenAI vendors from different countries – as well as global SaaS platforms, which are now rapidly integrating GenAI capabilities, oftentimes without properly assessing the related risks – have similar or even bigger problems.

For instance, some Privacy Policies and Terms of Use of AI-powered offerings provide quite opaque (to put it mildly) descriptions of whether and how your data, including your personal data and other sensitive information, is used for AI training purposes. Some applications force their unwitting users to go through a hidden but mandatory “opt-out” mechanism, instead of using a transparent “opt-in” option, in grave violation of numerous privacy laws and regulations. Once your personal data, confidential communications or documents are shared with an AI-powered system, it may be technically impossible to ever erase it or request to correct your personal data as provided by the growing number of privacy laws and regulations around the globe. Worse, your sensitive data or excerpts thereof may be inadvertently disclosed to numerous third parties, for example, when a GenAI chatbot answers a relevant question from another user.

Finally, whilst DeepSeek’s risks should certainly not be discounted or underestimated, we should, likewise, remember the fundamental risks and problems of all other GenAI vendors. Many of them unwarrantedly scrapped proprietary and copyrighted content from the Internet to train their powerful LLMs – without ever asking for permission from content creators or copyright owners – now vigorously denying any wrongdoing under varying untenable pretexts. The unfolding DeepSeek incident shall not be exploited as a “convenient” reason to suddenly forget about serious violations and AI-related risks posed by other GenAI vendors. Otherwise, we are missing the forest for the trees.”

TOPIC: The changes to the way police and probation services in England and Wales manage those convicted of coercive control

COMMENT BY: Dr Charlotte Bishop, Law School, University of Exeter

“This is a welcome move due to the strong link between coercive control and domestic homicide among male perpetrators. Coercive control is a core component of much domestic abuse and must be treated with the same seriousness as other forms of domestic abuse by the criminal justice system.

“This change will help improve safety and protection for victims whose partners or former partners are convicted of controlling or coercive behaviour rather than other domestic abuse-related offences.

“However, it is crucial to remember that most victims still do not report domestic abuse, and prosecutions and convictions remain rare – 65% of domestic homicides are committed by individuals who had no prior police or criminal justice involvement. Therefore, tougher criminal justice measures must be accompanied by early intervention and support for those experiencing all forms of domestic abuse.”

TOPIC: Failure of government policy in first year requiring developers to boost nature through new habitats

COMMENT BY: Penny Simpson, environmental law partner, Freeths

“It’s far too soon to be calling the new BNG (Biodiversity Net Gain) system a failure or a success – it is unrealistic in one year for a complex regime which involves many players to be off the ground and running perfectly – it can be expected to take 5 years at least to get this system working – everyone should wait and see.”

TOPIC: The decision by the Court of Appeal that a local authority cannot consent to the deprivation of a child’s liberty under its statutory duties (Matter arising out of Mrs Justice Lieven’s decision in June 2024)

COMMENT BY: Sophie Webb, an Associate in the Care Team at RWK Goodman, (who represents the mother in this case)

“This is an incredibly important case which highlights the complexity of the law in this area and the right under Article 5 of the Human Rights Act to liberty and security of person.  Whilst there was agreement between the parties in this case that the arrangements for the child were in his best interests, all agreed, as did the interveners, that the Local Authority should not impose such arrangements which deprive a child of their liberty without the court’s approval. 

From a parent’s perspective, whilst there may be agreement at a certain point in time as to the arrangements for a child’s care and any restrictions that would deprive that child from their liberty, that may not always be the case. A child’s needs are likely to evolve throughout their childhood and into adolescence, potentially requiring additional or more restrictive care arrangements. Without the oversight of the Court and thorough scrutiny of the arrangements in place for a child, there is a real risk that a child will be unlawfully deprived of their liberty.   Against a background of the issues we are seeing nationwide with the shortage of regulated placements for children, this could have a hugely detrimental impact on some of the most vulnerable children and young people in our society. 

It was incredibly powerful to hear particular submissions today on behalf of the interveners around the experience of children in these situations and the importance of the child’s voice being heard.   We have to remember who is at the very heart of these really important cases. 

In my professional view, the Court of Appeal have made the right decision today.”

TOPIC: The view of the Chairman of the House of Lords Built Environment Committee, Lord Daniel Moylan that the government’s ‘grey belt’ proposals could have a limited impact on housebuilding

COMMENT BY: Fergus Charlton, planning partner at national law firm Michelmores LLP

“Whether or not the grey belt policies will play an effective role in achieving the government’s difficult to reach 1.5 million new homes target will become clearer as the policies begin to play a defining role in plan making.

“In the realm of decision taking they are already playing a key role in the outcome of appeals where green belt land is considered by inspectors to be grey belt. We have seen more than a handful of successful appeals in the eight weeks since the grey belt concept was confirmed in the NPPF.”

TOPIC: Assaults on retail workers

COMMENT BY: Kari Hansen, Forum of Insurance Lawyers’ Retail Sector Focus Team

‘Violence against retail workers has long been a major concern for businesses which not only impact employee well-being but also result in significant costs for businesses, including lost productivity, insurance claims, and reputational damage.  Prevention remains key, ensuring risks assessments and training are fit for purpose, whether at national or at store level, and that physical controls act as deterrents, such as CCTV and warning signs, indicating that violence will not be tolerated.  

Be sure to consult colleagues as they will often have better insight as to what the potential problems are and may even have ideas for how to solve them.  Behind each incident of violence is a person who was simply doing their job. Doing the right thing by your colleagues is paramount. Invoking early rehabilitation could be a worthwhile consideration to support the colleague coming back to work and could influence whether they make a claim in the future and, if so, minimise the value of any claim.”

APPOINTMENTS OF THE WEEK

PILLSBURY

Hamid Yunis has been appointed as a Partner in the Corporate practice of the London office of Pillsbury. Formerly with McDermott Will & Emery, where he was the Managing Partner of the London Office for five-and-a-half years as well as head of the London Health Care group. he was responsible for growing the office considerably in both turn-over and head-count.

Yunis’s track record included advising clients on mergers & acquisitions, private equity investments as well as on projects and corporate finance matters around the world. He is recognised by Chambers UK in connection with corporate and commercial healthcare matters and has an established reputation for bringing joint venture, public-private partnership, and funding structures to market.

“Hamid operates a sizeable, multifaceted practice that spans Life Sciences & Digital Health, Health Care, Infrastructure, and Private Wealth—areas that align with Pillsbury strengths, increasing client needs and global trends,” said the firm’s Chair, David Dekker. “He will add new dimensions to our growing London office, expand our substantial cross-border M&A team, and bring valuable connections internationally, especially across the Middle East region.”

MICHELMORES LLP

Dearbhla Quigley has joined Michelmores LLP as a Partner in its Corporate and Capital Markets team in London. Formerly with Forster’s LLP, Quigley has more than 25 years experience specialising in UK and cross-border M&A, equity capital markets and investment transactions. She has advised companies at all stages of the business cycle in the technology, natural resources, renewable energy and healthcare sectors. She also has expertise advising on M&A and other corporate transactions that involve an international element.

“We’re thrilled that Dearbhla has joined our Corporate team in London as part of our Destination 2030 strategy,” said Ian Binnie, Head of Capital Markets at Michelmores. “She brings an incredible depth of knowledge to Michelmores, across a broad range of industries, and her track record of advising on M&A, capital markets and cross-border mandates is a great addition for supporting our clients.“

Dearbhla Quigley commented, “The culture, client experience, and commercial approach at Michelmores are a perfect fit for my practice. I look forward to working alongside Ian Binnie and the wider team to help deliver on the impressive expansion plans for the firm.”

We hope that you’ve been interested or amused by something in this week’s LEGAL DIARY. If so do send on to colleagues.

And please continue sending your ‘Diary-type’ stories, insights legal comment and appointments to

fennell.edward@yahoo.com