A Lawyer Talks

In recent weeks we’ve seen cyber attacks on bodies such as the Legal Aid Agency and companies such as Marks & Spencer. But many other attacks are simply not made public. How should organisations defend themselves against risks to their data? And should they pay ransom demands in the hope of getting it back?

These are among the questions I have been discussing on the latest episode of A Lawyer Talks with James Moss, director of cyber investigations at the international law form Addleshaw Goddard (pictured). He’s a former director of enforcement at the Information Commissioner’s Office (ICO), which, as he explains, is expected to take on new powers and responsibilities under the government’s planned Cyber Security and Resilience bill. Ministers are also considering whether to ban some ransom payments — a proposal that, as he explained, may prove controversial.

My podcast series is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above.

What impact has English common law had on the legal system of Israel? That’s the question Lord Pannick KC discussed yesterday with Dorit Beinisch, president of the Supreme Court of Israel from 2006 to 2012.

The answer turned out to be considerable. During the British mandate period, there were appeals to the Judicial Committee of the Privy Council in London. For decades after Israel’s independence in 1948, Israeli lawyers relied on used well-worn English textbooks — Salmond, Wade, De Smith — and cited leading English precedents. Senior judges from the United Kingdom often referred to Israeli cases during the years when there were regular exchanges between the two jurisdictions.

The leading barrister and the former judge were in conversation at the Hebrew University of Jerusalem as part of the Lionel Cohen lecture series — established in 1953 to honour Lord Cohen of Walmer, a law lord from 1951 to 1961. The discussion, attended by two of Cohen’s grandsons, marked the 75th anniversary of the university’s law faculty; the Hebrew University itself is celebrating its centenary this year.

Although Pannick led the discussion, he also answered questions from Israeli judges and academics at the seminar who demanded his insights on aspects of English law and on cases he had appeared in. Beinisch particularly admired Pannick’s success in persuading the UK Supreme Court to overturn Boris Johnson’s attempt to prorogue parliament for five weeks in 2019 — the sort of decision that she thought her own court would not have been brave enough to take.

It was a fascinating discussion on many levels — there was discussion of judicial appointments, checks and balances, Gouriet v HM Attorney General — and you can hear it by clicking the ► symbol above.

* Sorry that some of the questions from the floor are a bit hard to hear. Comments are disabled for this piece.

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The Parole Board should increase the number of public hearings it holds each year, an internal review has recommended. It’s one of the ways that the board hopes to achieve greater public understanding of its work.

The Parole Board is an independent body whose members make judicial decisions on whether people who have committed serious offences or who are assessed as potentially dangerous need to stay in prison for the protection of the public.

But the public have little idea of how panels of board members question prisoners and assess risk. Some people think the Parole Board has a say in all prisoner releases; others believe it can shorten sentences passed by the courts. But neither is true and the review suggests that greater openness can reduce allegations of secret justice.

It was carried out by Peter Rook KC (pictured), who’s vice-chair and the senior judicial member of the Parole Board, and Michael Topolski KC, who’s also a senior member of the board; both are former Old Bailey judges.

Thanking them for their report, the board’s chief executive Cecilia French said it had made great strides in becoming more transparent over the years but was keen to do more. “The transparency review highlights the key areas we should focus on to further progress our transparency agenda,” she added. “I am looking forward to implementing the recommendations in this review.”

For the latest episode of my podcast A Lawyer Talks, I asked Rook about the review’s findings. As a general rule, he explained, parole hearings would remain private. But he hoped the board would find new ways of helping the public to understand its work.

Rook referred to the judiciary’s transparency and open justice board whose chair, Mr Justice Nicklin, gave a lecture in Oxford last night that I plan to cover shortly.

My podcast series is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above.

It would be “constitutionally improper” for ministers to comply with treaty obligations if that would mean ignoring laws made by parliament, the shadow attorney general said yesterday. Lord Wolfson of Tredegar KC (pictured) was responding to allegations by Lord Hermer KC, the government’s senior law officer, that the Conservative front-bencher had adopted a “pick-and-mix approach, in which states can sometimes justifiably refuse to comply with their international legal obligations when they judge it not to be in their national interests to do so”.

In an interview for my podcast A Lawyer Talks, Wolfson said that ministers would always seek to comply with international law if they were able to do so. But, he continued:

a minister has to abide by an act of parliament and it would be constitutionally improper, I would suggest, for the minister to say, “I’m going to ignore what an act of parliament says in order to comply with a treaty obligation”.

In truth, he claimed, the Labour government was itself taking a pick-and-mix approach to international law. “We do — under this government and under previous governments — legislate, for example, contrary to double-taxation treaties,” Wolfson said. “We do put in place tariffs which are contrary to the WTO [World Trade Organisation].”

Wolfson has known Hermer for 30 years and they have a great deal in common — apart from their politics. The shadow attorney general’s declared aim is always to “play the ball and not the man”. Listen to A Lawyer Talks and hear whether he succeeded — particularly when I asked Wolfson about Hermer’s references to Carl Schmitt.

Here’s a short glossary for non-specialists:

* a fortiori all the more so

* purdah period between election announcement and formation of new government

* spad minister’s special adviser

* sui generis unique

* “thick” or “thin” rule of law concept

My somewhat irregular podcast series — there will be another one tomorrow — is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above.

Lawyers for the families of 29 military and civilian intelligence specialists who were killed when an RAF Chinook helicopter crashed on the Mull of Kintyre in 1994 have said they will “consider all legal options” to find out how their relatives died. They have launched a campaign seeking answers and accountability.

Around the time of the 30th anniversary of the disaster last June, the families discovered that Ministry of Defence records had unexpectedly been sealed for a further 70 years. They are calling for a judge-led public inquiry to assess the available evidence. Their solicitor Mark Stephens CBE, from the law firm Howard Kennedy, argued that there could no longer be any operational need for secrecy.

The military helicopter was carrying passengers from Northern Ireland to a conference in Scotland. One of those on board was Lt Col John Tobias MBE, 41, an army intelligence officer.

His son Andy was eight at the time. Andy Tobias (pictured) told me this week why he thought the prime minister’s commitment to a duty of candour for public bodies meant the families should finally discover whether their loved ones had boarded an aircraft that others knew was not fit to fly.

You can hear our discussion in the latest episode of A Lawyer Talks. My regular podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above.

Millions of consumers will each be able to claim compensation of between £45 and £70 after the Competition Appeal Tribunal gave its approval yesterday to the settlement of long-running litigation against Mastercard.

The credit card company agreed to pay £200 million in settlement of a class action originally valued at £14 billion, thought to be the largest claim ever litigated in the courts of England and Wales.

Compensation will be available to as many as 44 million adult consumers who bought goods in UK shops that accepted Mastercard between 1992 and 2008. Crucially, it is not confined to people who used Mastercard or any other credit card for their purchases. A claim form will be published online in the coming weeks.

The class of claimants was represented throughout by Walter Merricks CBE (pictured yesterday at his lawyers’ office in London). He told me yesterday why the claim had been brought and why he had settled for less than 1.4% of its original value.

He also told me about his fears and feelings on being sued by his own litigation funders, Innsworth Capital, who opposed the settlement. In an unprecedented move, Mastercard offered to pay Merricks up to £10 million to defend him against the threat of being bankrupted by Innsworth.

The litigation funder will be repaid the £45.5 million it has invested in Merrick’s legal fees plus an additional 50%.

Its managing director Ian Garrard said it would receive a return of less than 15% of what it described as the £150 million surplus, despite taking all the risk.

“We do not think it is a reasonable division of the proceeds, or one that will do anything to encourage investors to fund other opt-out collective actions,” he said. “We are therefore considering all of our options, including asking the courts to look again at this matter.”

A spokesperson for Innsworth added: “Innsworth has at all times acted in accordance with its rights and obligations under the litigation funding agreement. There are no findings regarding Innsworth’s conduct in the judgment.”

Some idea of the complexity of the case can be seen from the tribunal’s reference to the claimant’s “Re-Re-Re-Re-Re-Amended Reply” and his “Re-Re-Amended Claim Form”.

Merricks spoke to me exclusively yesterday for A Lawyer Talks. My regular podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above.

Offenders serving between one and four years who have been released from prison on licence and then recalled for breaching their licence conditions will generally be freed after a further 28 days, the justice secretary announced yesterday. At present, release is a matter for the Parole Board.

It’s the latest attempt by Shabana Mahmood to keep prisoner numbers within the maximum that the prisons can hold and is expected to reduce the prison population by about 1,400. The number of recalled prisoners rose from 6,000 in 2018 to 13,600 this year. In 1993 it was no more than 100.

Mahmood said the impact of sentencing reforms to be recommended shortly by the former justice secretary David Gauke would not be felt before next spring. Her junior minister Sarah Sackman told me on Tuesday that the criminal court reforms proposed by the former judge Sir Brian Leveson might also take a year to implement.

In an interview for my podcast A Lawyer Talks, the courts minister spoke frankly about the government’s planned legislation and its options for reform. They include reclassifying offences as summary only — so defendants charged with some types of theft could no longer insist on jury trial — and allowing more serious cases to be tried by a judge and two magistrates or even by a judge sitting alone.

But will Sackman persuade the public that jury trial needs to be curtailed when some imagine that it was guaranteed by Magna Carta? Listen to the interview and you be the judge.

A Lawyer Talks is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above. Some of the interview has been reported by the Daily Telegraph.

“The independent judiciary — the cornerstone of the rule of law — is an integral part of what the UK has to offer to the world,” the lady chief justice of England and Wales said last night.

Baroness Carr of Walton-on-the-Hill was addressing a court-full of senior judges and international visitors about the judiciary’s new five-year strategy for international engagement.

“The pre-eminent reputation of the UK in international diplomacy is of course well-known,” she continued.

“Perhaps less well-known is the extensive work of the judiciary of England and Wales to support these efforts through judicial diplomacy. Members of the judiciary have for many years been leading participants in international judicial organisations and the providers of training, mentoring, support and guidance to judges in many jurisdictions across the world.”

Last year, on a budget of £169,000, the judiciary had:

* engaged with 52 countries and a dozen international associations,

* welcomed more than 100 judges based in countries from Albania to Ukraine,

* delivered, through the Judicial College, over 400 hours of training, both online and overseas, on topics such as case management,

vulnerable witnesses, judgment-writing and judicial ethics; and

* launched online peer-to-peer mentoring scheme for overseas judges to connect with judges in the UK.

Judges also ensured that the UK was a centre of excellence for international commerce and finance. The law of England and Wales, Carr said, was the law of choice for international trade. As a result, the legal services sector made an enormous contribution to the UK economy, with revenues for legal services of about £37 billion in 2023 and rising.

The lady chief justice continued:

The judiciary provides critical underpinning for this productivity. It provides the quality of judgments which underpin the world-leading reputation of English law, particularly commercial law.

It provides the flexibility and efficiency of procedure that make the Business and Property Courts the gold standard worldwide — and in troubled times gold standards are ever more important. It provides the predictability of outcomes that are the essential tools of the trade for our law firms, barristers, arbitrators and mediators…

The independence of the judiciary of England and Wales provides a cornerstone guarantee to international investors that the rules upon which they assess risk and make their investment decisions will be honoured.

Carr thanked Lord Justice Dingemans, who served until recently as the lead judge for international relations. He spoke about the work done by UK judges with experience of war crimes trials to train Ukrainian judges who might have to try Russian soldiers. The training has taken place. in Poland for safety reasons.

Dingemans also spoke about training judges in Albania, a country where judicial corruption was endemic until a decade ago.

The lady chief justice then introduced Lord Justice Snowden (pictured) as the new lead international relations judge. Although serving judges rarely give media interviews these days, Snowden agreed to take part in my podcast A Lawyer Talks. I asked him about the judiciary’s international engagement strategy, summarised in a paper published today.

My regular podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above.

Jonathan Fisher KC is to conduct an independent review of fraud offences, the Home Office confirmed this week. A leading specialist in financial and corporate crime at Red Lion Chambers, Fisher was originally commissioned by the Conservative government in October 2023 to conduct a two-stage review of disclosure — the issue at the heart of the Post Office Horizon scandal — and fraud. Fisher’s report on disclosure was published last month and part 2 of the review was launched by the Home Office on Tuesday.

It’s the first independent review of fraud law to be launched in more than 40 years. Since Lord Roskill’s report was published in 1986, online fraudsters have learnt how to target anyone with a computer or smartphone. What can be done about this threat to us all?

I met Fisher yesterday to discuss the new fraud inquiry as well as his disclosure report. You can hear our conversation in the latest episode of A Lawyer Talks.

My regular podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above.

“These tweets would not have been pleasant for any judge to read,” the barristers’ disciplinary tribunal said in a ruling published last week. “The remarks may even be thought to be hurtful. But they are not gravely damaging to the judiciary and in our judgment it is not arguable that they are. We take the view that the judiciary of England and Wales is far more robust than that.”

With those words, a three-person panel dismissed all five charges of professional misconduct brought by the Bar Standards Board against Dr Charlotte Proudman (pictured arriving for the hearing last December).

Each charge related to a chain of 14 tweets that Proudman published on 6 April 2022, in which the barrister had commented on a judgment delivered by the former High Court judge Sir Jonathan Cohen in a financial remedies case where she had been junior counsel.

“The question we have to deal with,” said the tribunal in its ruling, “is whether it is arguable that what was tweeted by Dr Proudman went beyond the bounds of permissible conduct from a professional person in her position. We have been greatly assisted in assessing this by the case of Morice v France.”

The tribunal continued:

These tweets are almost all statements of opinion, save where we have already mentioned an issue of fact that was incorrectly put forward by Dr Proudman; and all of them are concerning a matter of public interest. Are they unfounded and gravely damaging to the judiciary?

Our answer is no. They were robustly expressed opinions on an important matter of public interest. They were moreover opinions which a rational and conscientious lawyer was entitled to express without losing the protection that Morice illustrates is provided by article 10 [of the human rights convention].

We do not condone them; that is not our function. Our function is to determine whether it has been established by the Bar Standards Board to the civil standard that Dr Proudman has lost her article 10 protection because what she tweeted was so factually unfounded and so gravely damaging to the judiciary as to amount to professional misconduct.

We do not consider that it came close to that.

For the latest episode of A Lawyer Talks, I asked Proudman how she felt about her regulator spending tens of thousands of pounds of the profession’s money on bringing charges against her that the tribunal threw out without even calling on her to respond.

We recorded the interview a few days before the ruling was published but, as you’ll hear, Proudman didn’t hold back. She also spoke frankly about being sexually assaulted by male barristers.

And we discussed the media storm that led the Daily Mail to accuse her nearly 10 years ago of being a “feminazi”. I asked her if — with the benefit of hindsight — it had been a good idea to go public about unwanted attention she had received from a more senior member of the bar.

Proudman also reflects on these incidents in her new book He Said, She Said, which will be published on 1 May. Subtitled Truth, Trauma and the Struggle for Justice in Family Court, it offers revealing insights into some of the women she has represented and reveals how her own family background has helped her to understand the vulnerabilities of clients and their children.

My regular podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above.