A Lawyer Talks

Gray’s Inn is paying tribute to an illustrious former member, 400 years after his death. Sir Francis Bacon was one of the most influential figures in British intellectual history and a lawyer whose life and career were deeply intertwined with the inn of court where he felt most at home.

At a dinner in hall tonight, Professor Alan Stewart (pictured) — one of the leading experts on the former lord chancellor’s multifaceted achievements — will be speaking about Bacon’s lifelong association with the inn that he joined in 1576 and where he was living shortly before his death 50 years later.

Stewart, a professor of literature in New York, kindly agreed to share some of his thoughts with me for the latest episode of A Lawyer Talks. He argued that Bacon could properly be regarded as a true Renaissance man. I suggested that his willingness to accept favours and his attempts to live above his means made him sound surprisingly modern.

Readers may remember that I previewed tonight’s celebration of the inn’s former treasurer (elected head) in a short film earlier this year. That’s still free to view:

My podcast interview, as always, is a bonus for paying subscribers to A Lawyer Writes. But others can hear a short taster by clicking the ► symbol on the graphic at the top of this page.

In a judgment published last Thursday, a circuit judge sitting in Walsall explained that he was referring two solicitors to their regulator because false AI-generated case citations had been submitted in an appeal he was hearing.

“Lawyers who cite fictitious cases must face serious consequences,” said Judge Grimshaw, “and in the current environment, where this is a problem that is significant (and indeed seems to be growing), the guidance in Ayinde indicates that judges should take a robust approach.”

Mahmood Hussain, a consultant at AML Legal in Dudley, had acknowledged that documents citing false judgments had been prepared with the help of a paralegal. The judge observed that an appeal bundle and a covering email had apparently been signed by Kossar Qureshi, the firm’s director.

It’s a cautionary tale for solicitors. But the perils of using artificial intelligence may be even greater for barristers. To help them balance risks and rewards, their regulator will be launching new guidance later today. Strikingly, it encourages members of the bar to take a risk-based approach when using new technology.

To set the scene, I’ve been discussing the new guidance with the Bar Standards Board’s director of strategy, policy and insights, Ewen MacLeod (pictured), on the latest episode of A Lawyer Talks.

My weekly podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol on the graphic at the top of this page.

As presaged in the King’s speech, the government’s Courts and Tribunals Bill was reintroduced in the House of Commons yesterday. It picks up where it left off, though no date has yet been announced for the bill’s report stage and third reading.

Will the government’s plans to limit jury trial ever reach the House of Lords? Or will Andy Burnham’s bid for the Labour leadership mean that we end up with a more modest set of reforms? That’s one of the questions I explore in my analysis of the government’s legislative programme for the Law Society Gazette.

After writing the piece, I tried out some of my ideas on Kirsty Brimelow KC, chair of the bar (pictured). Far from exploiting the political turmoil that was deepening even as we spoke yesterday afternoon, the barristers’ leader said stability was to be preferred.

I took the opportunity to ask Brimelow about her comments on Rajiv Menon KC, the defence counsel who is waiting to hear whether his remarks to a jury will lead to contempt of court proceedings, a disciplinary investigation or no further action. Readers will recall that I wrote about the issues last week and again this week.

Brimelow said on Wednesday that she hoped this “troubling episode” was now at an end. Did that mean she thought barristers in a criminal trial could legitimately ignore directions from a judge on what a jury could be told?

You can hear Brimelow’s response in the latest episode of A Lawyer Talks. My weekly podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol on the graphic at the top of this page.

The international legal order is facing profound disruption, a leading lawyer said last night. Professor Lord Verdirame KC said that institutions created or expanded after the end of the Cold War in 1989 had “too often responded with misguided moralistic fervour and interpretative maximalism, stretching mandates beyond what states consented to and thereby inviting the backlash that now jeopardises their legitimacy and survival”.

Verdirame, a practising barrister, professor of international law and non-affiliated peer, was delivering a lecture to the Society of Conservative Lawyers in memory of its long-serving member and honorary secretary Pamela Thomas. The society will be publishing his lecture in due course.

In an interview yesterday for A Lawyer Talks, Verdirame discussed the pivotal role of the United States and the current limitations of international law. “The international legal order is not falling apart,” he said. But it was now in crisis.

My weekly podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol on the graphic at the top of this page.

A year has passed since the UK Supreme Court decided that when parliament used the terms “man” and “woman” in the Equality Act 2010 it was referring to biological sex, not acquired gender. That seemed clear enough, but some academics appear not to have understood it.

How can that be? And will things be any clearer next month when the government publishes the Equality and Human Rights Commission’s long-awaited code of practice on services, public functions and associations?

To discuss those questions — and the unexpected importance of personal pronouns — I went to see Dr Michael Foran, an associate professor of law at Keble College Oxford. His new book, Sex, Gender Identity and the Law, is formally published by Cambridge University Press on 7 May. You can hear our conversation in the latest episode of A Lawyer Talks.

My weekly podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol on the graphic at the top of this page. And my interview with Lord Hodge, the judge who wrote the ruling, is here.

A former chair of the bar has called for a wide-ranging review of the way that expert evidence is used in the courts of England and Wales. Speaking to one of the City of London livery companies just before Easter, Sam Townend KC said the use of experts had led to “something of a crisis in judicial and public confidence”.

He told the Worshipful Company of Arbitrators that the development of the professional expert witness in recent years challenged the principle that such evidence should be independent. As examples, he referred to the trial of Lucy Letby and the use of psychologists in family cases where so-called “parental alienation” has been alleged.

Townend has been speaking about his concerns in the latest episode of A Lawyer Talks. Update 9 June: his lecture has now been published.

My regular podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol on the graphic at the top of this page.

Sir Andrew McFarlane never expected to become a barrister. He had no particular interest in family law until he took the case that changed his life. His rapid promotion from the High Court to the Court of Appeal came as a surprise. The post of president of the family division was not one he aspired to. And he certainly did not expect to serve as the senior family judge of England and Wales for as long as eight years.

All this he tells me without any sense of humblebragging or false modesty. But there is one achievement that he looks back on with pride. It was a major reform that is bound to feature in the tributes he’ll receive at a valedictory ceremony later today. But I suspect it went unnoticed by most court users at the time.

Better known is his support for pathfinder courts, as they were described for want of a better term. Earlier this month, the justice secretary announced that child-focused courts, as they are now to be called, will be introduced across England and Wales once the necessary funding can be found. In the latest episode of A Lawyer Talks, McFarlane explains how a simple innovation has led to a wholly different dynamic in the family courts.

My regular podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol on the graphic at the top of this page.

New sentencing laws take effect next week. Judges and magistrates in England and Wales will be able to suspend sentences of up to three years. And courts will have to suspend sentences of not more than 12 months unless there are “exceptional circumstances”.

Because very short sentences are generally thought to be counter-productive, supporters of the reforms say we should all be safer as a result. And, at least to begin with, the prison population should begin to come down. But Andrea Coomber KC (hon), chief executive of the Howard League for Penal Reform (pictured), told me there were provisions in the Sentencing Act 2026 that may endanger the very people they are intended to protect. And Baroness Carr, the lady chief justice, made it clear that other provisions in the legislation could be used to undermine the important role played by sentencing guidelines.

You can read about Carr’s concerns in my column for this week’s Law Society Gazette.

And you can hear Coomber’s criticisms in the latest episode of A Lawyer Talks. My weekly podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol on the graphic at the top of this page.

The rule of law, as a phrase, is opaque, the head of civil justice said this week. As Sir Geoffrey Vos explained, “non-lawyers and even many lawyers think it is about the enforcement of law against citizens rather than enforcing, or rather upholding, the rights of citizens against the state.”

The master of the rolls wondered if we could find a better term for the concept. He offered no suggestions himself. But if lawyers were going to continue using the phrase when speaking to those outside the legal profession, he thought they should at least say what it meant.

Vos continued:

We should explain that, as proponents of the rule of law, we are proponents of the clear and accessible predictability of the legal system, that we support open justice and access to fair justice for all, that we are seeking to protect the fundamental rights of all, and we support those states that exercise proportionate and accountable power over their citizens in good faith and those states that comply with their obligations under national and international law.

We should, perhaps, also explain that what we are talking about is not for the benefit or self-aggrandisement of the lawyers, but for the benefit of all citizens — to enable them to live and let live in a tolerant society where their rights are respected. It is, as I have said, all about tolerance and respect — not about protecting lawyers or even judges.

The second most senior judge in England and Wales was speaking at a meeting of the Alliance for Lawyers at Risk, a charity that brings together prominent members of the British legal community to support lawyers and human rights defenders throughout the world who face personal danger because of their professional work.

The alliance makes an annual award in memory of Sir Henry Brooke CMG (1936-2018), who was vice-president of the Court of Appeal from 2003 until his retirement in 2006. Brooke’s parents were both appointed to the House of Lords, as was his brother. A former president of the Society for Computers and Law, he launched a legal blog in 2015 that remains a model of its kind.

This year’s Henry Brooke award went to Ruth López (pictured), described by the judging panel as one of the most prominent and courageous defenders of the rule of law in El Salvador. Her investigations, the panel added, have brought to light issues such as unlawful spyware surveillance, political patronage networks and unconstitutional legislative measures that restrict and undermine public access to information.

Vos presented the award to Lopez’s husband. That was because her work as director of the anti-corruption and justice unit at Cristosal, a regional human rights organisation working across El Salvador, Guatemala and Honduras, led to her arrest and imprisonment last May. She has not been tried or convicted.

Action taken against López by the authorities in El Salvador has been widely condemned by lawyers’ groups. Last July, the American Bar Association selected her for its annual international human rights award.

To learn more about the Alliance for Lawyers at Risk — what it does and what impact its work can have — I spoke yesterday to its president, Dominic Grieve KC, the former Conservative MP who served as attorney general from 2010 to 2014 and then as chair of parliament’s intelligence and security committee.

While interviewing Grieve for the latest episode of A Lawyer Talks, I took the opportunity to ask him what he made of the advice thought to have been given to ministers by Lord Hermer KC, the current attorney general, on the lawfulness of military action against Iran by the US and Israel. That issue struck me as particularly timely ahead of a forthcoming discussion between Professor Lord Verdirame KC and Professor John Bew CMG:

My weekly podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol on the graphic at the top of this page.

“Any decision about the care and treatment of a mentally incapacitated adult, including the withdrawal of life-sustaining treatment, must be taken in the patient’s best interests,” the Court of Appeal said on Tuesday. “There is no carve-out for ‘clinical decisions’,” the court added, overruling a decision by a highly experienced Court of Protection judge.

That conclusion is so broad that it cannot possibly be correct, a leading lawyer in the field of health and social care told me yesterday. Victoria Butler-Cole KC said the ruling means that practical advice issued by the British Medical Association to assist doctors when making decisions in the best interests of incapacitated adults is now wrong. She thought the ruling would cause widespread difficulties and should now be considered by the Supreme Court with the benefit of more time and full legal argument.

The one person who won’t benefit from any further appeal is the man at the heart of this tragic story. Robert Barnor, 68, suffered extensive and irreversible brain damage after a stroke nearly a year ago. He died last Friday, hours before a judge was due to consider whether a hospital’s decision to withdraw life-saving kidney dialysis would be in his best interests.

You can hear my interview with Butler-Cole (pictured) in the latest episode of A Lawyer Talks. My weekly podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above.