A Lawyer Talks

How is it possible to enforce a judgment from the courts of one state against the government of another? That’s the topic I discuss on this week’s episode of A Lawyer Talks. My guest is Jehad Mustafa, a partner at Farrer & Co who specialises in state immunity, and we spoke at the solicitors’ historic (and partly stone-floored) offices in Lincoln’s Inn Fields.

He and I discussed two rulings delivered last month:

* In Ghanem Al-Masarir v Kingdom of Saudi Arabia, the High Court awarded more than £3 million in damages to a UK-resident critic of Saudi Arabia who claimed the Saudis had hacked his phone and sent people to beat him up in the street.

* In COL v The United Arab Emirates, the High Court awarded more than £145,000 to a woman from the Philippines who was found to have been the victim of modern slavery after she had worked as a domestic servant for a UAE diplomat in London.

Another case mentioned in our discussion was Federal Republic of Nigeria v Ogbonna, decided by the president of the Employment Appeal Tribunal in 2011 (though reported in 2012).

What are the chances of individual claimants being able to recover even a penny of the compensation they were awarded against foreign states? The answer is more encouraging than I had thought.

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After months of uncertainty, the government is pressing ahead with its plans to curb the right to trial by jury in England and Wales. Legislation is to be introduced “next month”, a minister says. Sir Brian Leveson expects the government to publish its bill even sooner, he tells me in this week’s episode of A Lawyer Talks.

The former head of criminal justice was talking to me about the second and final part of his report on the criminal courts, which recommends no fewer than 135 efficiency improvements. But inevitably we spent much of the interview discussing the structural reforms Leveson had recommended in part one of his review last July.

The most eye-catching of these is a new bench division of the crown court, which will try cases without a jury. Leveson thought it should consist of a judge and two magistrates but the government says it will be a judge sitting alone.

He was careful not to comment on the government’s proposals — or indeed on whether ministers might let magistrates sit in the bench division if concessions have to be made in the House of Lords. But Leveson was perfectly happy to tell me why he stood by his original recommendations — those that ministers had accepted and those they had not.

My column for this week’s Law Society Gazette looks at how Leveson’s initial proposals were handled by the government. It also reports how he feels about the government’s decision to remove a defendant’s right to choose jury trial on charges that can be tried in the magistrates’ court. He would have limited the right to elect trial by jury rather than abolished it outright.

Pieces I write for the Gazette are always free to read. The Gazette also carries a two-page analysis of Leveson’s latest recommendations by Monidipa Fouzder.

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This year will be a tipping point in which the majority of the legal industry will be AI-powered, a leading solicitor said in a comment released for publication this week. But what does that mean?

Is artificial intelligence going to take over from the real thing? Will lawyers no longer be needed?

“We predict that AI will create a huge dividing line between small, innovative firms that use it to rapidly accelerate and more traditional firms who choose to remain set in their approach,” explained Jonathan Waters, who founded Helix Law as a boutique litigation practice nearly 15 years ago.

But what will the clients make of it? They may associate AI with non-existent cases cited by hapless lawyers or career-ending errors made by law enforcement chiefs.

To find out, I invited Waters to join me on A Lawyer Talks. His answers were both surprising and reassuring.

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As the High Court begins hearing allegations today that the publishers of the Daily Mail hacked into phones used by the Duke of Sussex and other public figures, I thought it would be a good time to look at the most successful phone hacking operation ever carried out by law enforcement organisations in the United Kingdom and across Europe.

Between 2016 and 2020, drug dealers and others involved in organised crime were using what they believed to be a secure messaging service called EncroChat. The system was cracked as a result of work by the Netherlands Forensic Institute. As a result, nearly 40,000 smartphones were infiltrated by the authorities and some 2,200 offenders were convicted in the UK alone.

But although courts in England and Wales found ways of declaring the evidence admissible, prosecutions were far from straightforward because the law does not allow material intercepted in the course of transmission to be used in evidence. Without intercept material, prosecutors have to rely on phone hacking — so-called “equipment interference” — to dig out stored data. But that’s not something the agencies like to talk about.

Among those calling for intercept evidence to be admissible is Professor Peter Sommer, an academic specialising in digital forensics, cyber security and electronic communications. In a recent paper, he drew on his experience as an expert witness in criminal prosecutions to explore some of the problems now facing the courts.

You can hear Sommer outlining his concerns — and explaining how EncroChat was cracked — in this week’s episode of A Lawyer Talks. My weekly podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can listen a short taster by clicking the ► symbol above.

Reducing the availability of jury trial is neither principled nor pragmatic, the incoming chair of the bar argued last night. In her inaugural address, Kirsty Brimelow KC said her first priority was to lead the Bar Council’s opposition to planned Ministry of Justice reforms.

She said:

The constitutional principle is deep — with its importance being cemented in 1670 when Edward Bushel and his fellow jurors, a disinterested group of property owners, would rather have gone to prison than convict the Quakers Penn and Mead of causing tumultuous assembly by preaching in Gracechurch Street…

The pragmatic points are that the reduction of juries would have no impact on the existing backlog as it would take effect towards the end of this parliament. Impact even then is highly uncertain. Meanwhile energy and focus are drained from implementing the urgent reforms now that would decrease the backlog.

You can hear Brimelow outlining her priorities in the latest episode of A Lawyer Talks. As well as criminal justice reform, we discussed increasing the age of criminal responsibility; lawyers under attack; bullying and harassment at the bar; human rights; and violence against women and girls. I was particularly interested in Brimelow’s experience of witchcraft.

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Gibraltar’s senior police officer was “in effect… forced out” of his job in 2020 as a result of assertions by the British overseas territory’s acting governor Nick Pyle and the chief minister Fabian Picardo KC that they had lost confidence in him, an inquiry by a retired British High Court judge has found.

In a 700-page report published by the Gibraltar government on 23 December, Sir Peter Openshaw said he had no doubt that the real reason Picardo had lost confidence in Ian McGrail, the police commissioner, was that the Royal Gibraltar Police had obtained a search warrant against Picardo’s friend, James Levy KC, which the chief minister was “determined in one way or another to thwart”. Levy denied any wrongdoing and was never charged.

Picardo had misled the police authority, the inquiry found: “by suppressing the truth, he was in effect suggesting a falsehood”.

Openshaw said that although McGrail realised his position had become untenable after the governor and chief minister had lost confidence in him, he retired only because he believed he was being unfairly and unlawfully compelled to do so. He felt he was being put under improper pressure to alter the course of a live criminal investigation.

The former judge found that Picardo had behaved grossly improperly when he tried to interfere in an active criminal investigation. But when Openshaw’s report was published two days before Christmas, Picardo announced that he had been vindicated and the Gibraltar government had been exonerated.

The chief minister said:

Crucially, the report completely exonerates the government from the many spurious allegations made against it. I am also very pleased that the inquiry chairman has found that I genuinely believed the then commissioner of police lied to me. My reading of the report, therefore, is that it vindicates my position on this crucial issue.

Most of the barristers who took part in the inquiry are based in London. McGrail was represented by Adam Wagner KC from Doughty Street Chambers (pictured at the inquiry). On the latest edition of A Lawyer Talks, he told me about the inquiry’s findings and gave me his reaction to Picardo’s comments.

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With parliament and many of the courts not sitting, I can’t promise to publish a report every day over the next two or three weeks. But I don’t want 2025 to fade away without marking the 25th anniversary of White v White, a groundbreaking ruling from 2000 in which the UK’s most senior judges said that the division of joint property on the break-up of a marriage should be checked against the “yardstick of equality”.

The judgment was hugely influential but not widely reported at the time — perhaps because the lawyers concerned, and their clients, didn’t speak to journalists. But times change and earlier this month I went to interview Mrs White’s solicitor at the offices in Lincoln’s Inn where his firm — Payne Hicks Beach — has been based since 1770. On the latest episode of A Lawyer Talks, Simon Beccle told me about Pamela White and the irony of her victory a quarter of her century ago.

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In its report earlier this month on the collapse of a high-profile Chinese espionage case, parliament’s joint committee on the national security strategy found evidence of questionable decision-making, misaligned expectations and failures to take potential opportunities that could remedy problems.

“Some aspects are best described as shambolic,” the report added. “The government and Crown Prosecution Service must reflect… on how best to uphold public confidence in the integrity of the system in the face of public concern.” Ministers have until 3 February to respond.

In the meantime, I have been discussing the committee’s findings with Nick Vamos, a former head of special crime at the Crown Prosecution Service and now head of business crime at the law firm Peters & Peters. As you can hear in the latest edition of A Lawyer Talks, he was surprised at how badly his former employers had handled the case. Vamos explained how the CPS had got it wrong — even though we still don’t understand why.

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People respond to outcomes rather than reasoning, the deputy president of the UK Supreme Court told me last week. Lord Hodge was reflecting on the reaction to the court’s ruling in the For Women Scotland case, where he gave the leading judgment.

“We decided the question of statutory interpretation,” he explained, “and have left it to others to work out the consequences. And of course the Equality and Human Rights Commission has the unenviable task of giving guidance on this matter.”

The court delivered its ruling in April and the commission’s guidance has still not been approved by ministers, much to the frustration of its former chair Baroness Falkner of Margravine.

In the course of a wide-ranging interview for A Lawyer Talks, Hodge told me why he thought former judges should not comment on matters of political controversy. But he regarded it as acceptable to talk about the rule of law. I had to weave my way carefully round the restrictions but in the end I had a much better understanding of what the UK’s second most senior judge thinks about the great issues of the day, across the UK and beyond.

And since Hodge is not planning a formal valedictory speech when he retires at the end of this month, I took the opportunity to ask him for his reflections after 12 years in the Supreme Court — and his unique transformation into an English lawyer.

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.

We still don’t know why leaked government plans reported on Tuesday of last week — “juries will decide only murder, rape or manslaughter cases” — were so different from what ministers announced this Tuesday.

It turns out that jury trial will be retained for cases where the likely sentence is over three years and for all indictable-only offences. Examples given by the government include murder, manslaughter, endangering life, rape and other penetrative sex offences, aggravated burglary, blackmail, kidnapping, people-trafficking, rioting, terrorism offences, grievous bodily harm with intent, the most serious drug offences and some weapons offences.

So there are two possibilities: either the leaked document seen by other reporters was not an accurate account of the government’s plans or it was correct at the time it was circulated and ministers then modified their ambitions.

When I interviewed the courts minister Sarah Sackman MP on Wednesday, I asked her which it was. On the latest episode of A Lawyer Talks, you can hear how she answered.

I also took Sackman through detailed plans set out by the justice secretary in a written ministerial statement on Tuesday. During the interview, I began to understand why David Lammy had told MPs that we would have to wait until the next general election, due in 2029, before we could expect to see a fall in the crown court backlog.

I analyse Sackman’s account of the government’s wide-ranging plans in my latest column for the Law Society Gazette.

In my column, I also argue that public involvement in the criminal justice system should not be regarded as an immutable absolute. Putting it another way, I am not convinced by those who claim that we can substantially reduce the current unacceptable crown court delays without making significant structural changes. If you disagree, listen to Sackman and then add a comment below.

Lammy’s statement should be read in full. For convenience, I have extracted the half-dozen proposals that I asked Sackman to explain or justify:

* Magistrates’ courts’ sentencing powers will increase to 18 months, with provision to extend to 24 months if necessary to relieve pressure in the crown court.

* The right of defendants to elect for a jury trial will be removed, meaning that it will be for the court to determine where a case will be heard based on the severity of offences.

* The appeals process from magistrates’ courts will be reformed so that automatic appeals to the crown court in criminal cases are replaced with a permission stage, limited to points of law.

* A new bench division will be established in the crown court for triable-either-way cases with likely sentences of three years or less, heard by a judge alone.

* Jury trials will remain for indictable-only offences and cases with likely sentences over three years.

* A small number of serious, but particularly technical and lengthy, fraud and financial cases may be heard by judge alone in the crown court, subject to certain requirements and at the discretion of the court.

What emerges from the interview, it seems to me, is that there is still a lot left to play for.

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