A Lawyer Talks

Solicitors who are approached by wealthy new clients should take greater care to ensure they are not facilitating kleptocracy, state capture or grand corruption, a new report recommends. Lawyers — particularly commercial firms in the City of London — are told it’s not good enough merely to comply with anti-money laundering rules; the real test should be whether their actions would be acceptable to the wider public.

The report was written by a taskforce on business ethics and the legal profession set up by the the Institute of Business Ethics, a charity that’s been working since 1986 to help organisations act with honesty and integrity. It was chaired by Guy Beringer KC (hon), former senior partner of Allen & Overy (pictured). On the latest edition of A Lawyer Talks, he tells me how solicitors can maintain and enhance the reputation of the profession as a whole by following the report’s recommendations on transparency, accessibility and accountability.

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.

Despite reports that the government is seeking to rush legislation through parliament, a revised sentencing guideline on the imposition of community and custodial sentences will take effect in England and Wales tomorrow.

As I reported last week, the Sentencing Council has rejected a request from the justice secretary to remove from the guideline of a list of 10 groups for which pre-sentence reports would “normally be necessary”. But political correspondents were briefed yesterday that the wording to which ministers object will be disapplied by primary legislation — a step that would be entirely unprecedented.

(Update 1800: the government now expects the Sentencing Council to back down and suspend the guideline.)

What difference will the legislation make?

It’s not clear how quickly the government could get its proposed legislation through the House of Lords. (Update 1700: government sources now accept that this could not be before 22 April, when the Lords return from their Easter recess). But amending the guideline would be largely symbolic because legislation could not prevent magistrates or judges requesting pre-sentence reports for defendants in the 10 “cohorts” identified by the Sentencing Council. Equally, a sentencer may decide not to request a pre-sentence report for any offender while the full guideline remains in force if the court thinks it already has enough information about the offender and the offence.

Ministers clearly see this as a trial of strength with the judges who, by law, make up the majority of the Sentencing Council. At a superficial level it is a battle that the government will win, since the judges can be relied on to respect the sovereignty of parliament.

But at a deeper level it is a fight that will worsen relations between the executive and the judiciary. It will further damage the standing of the lord chancellor, Shabana Mahmood, among the senior judges who decided at an emergency meeting of the Sentencing Council last Tuesday evening to reject the last-minute amendments she had requested.

Separately, she will have to explain why her department signed off a probation court services policy framework in January that has been picked up by the Telegraph this morning. It includes the following passage:

Mahmood is reported by the Guardian to be looking at a more radical plan to give ministers the power to veto or amend guidelines from the Sentencing Council before they come into force. I shall have more to say about the far-reaching constitutional implications of the government’s decisions in my column for the Law Society Gazette this Friday.

What difference will the guideline make?

Sir William Davis, the appeal judge who chairs the Sentencing Council, explained to me earlier this month that the new guideline is no more than a revision of an existing guideline which has been in force since 2017.

Why, then, did it have to be changed? Is there much in it that’s new? And was it really an attempt to reduce the prison population, which rose to 87,684 last week? Those are among the questions I put to Davis, a senior appeal judge, in an interview for my podcast A Lawyer Talks.

We recorded the interview on 5 March, unaware that, as we were speaking, the shadow justice secretary Robert Jenrick was politicising the issue by claiming in parliament the guideline would make a custodial sentence less likely for those “from an ethnic minority, cultural minority, and/or faith minority community”. That is “not what the guideline does”, Davis explained last Friday — and not for the first time.

Although Davis and I discussed the new guideline’s emphasis on pre-sentence reports in general terms, neither of us mentioned the 10 broad groups for which the council said they were normally necessary. But I did ask Davis how the courts should treat defendants such as Mike Amesbury, who was still an MP at the time despite having received a 10-week prison sentence. It’s worth noting that Amesbury received an immediate custodial sentence from the deputy chief magistrate Tan Ikram CBE, even though the court had received a pre-sentence report on him. Three days later, the Crown Court suspended his sentence and imposed community punishments.

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.

The UK Supreme Court will spend most of this week hearing a rare criminal appeal by two former traders who worked in the financial markets. Tom Hayes and Carlo Palombo both served substantial prison sentences for conspiracy to defraud after they were convicted, in separate trials, of rigging interest rates.

Their cases were referred to the Court of Appeal in 2023 by the Criminal Cases Review Commission after a leading court in the United States decided that similar behaviour would not have been illegal in the US.

Although the Court of Appeal dismissed their appeals a year ago, it later agreed to certify that the cases raised points of law of general public importance.

That gave the Supreme Court the option of hearing a further appeal, which it later agreed to do. The three-day hearing opens tomorrow and will be live-streamed.

For this week’s episode of A Lawyer Talks, I’ve been discussing the issues — and the former traders’ chances of success — with Charles Kuhn, a regulatory and financial crime partner at the London offices of Clyde & Co. 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.

Professor Richard Susskind CBE KC (hon), a prolific legal author, used to joke about writing the same book every couple of years. But How to Think About AI: a Guide for the Perplexed — his 12th book, published tomorrow — is rather different.

Inexpensive, modestly priced and attractively produced in hardback by Oxford University Press, it’s aimed at the general reader who wants to know whether to be alarmed or enthused by the inexorable growth of artificial intelligence.

The subject is one that Susskind has been thinking about since 1981 and he answers the inevitable question in an epigram:

None of this book was written by AI (for better or worse).

But for how much longer? How soon will AI be able to write a book in the style of Richard Susskind? And will it be any good?

Those are among the issues addressed in How to Think About AI — and in unscripted remarks he made at its London launch last week. Susskind kindly allowed me to record the entire speech (see photograph above by Michael Cross) and I’m publishing a substantial extract from it as the latest episode of A Lawyer Talks. It’s fascinating and chilling in equal measure.

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.

Lawyers are sometimes failing to meet the ethical standards expected of them, according to the Legal Services Board.

The oversight body that regulates the legal regulators in England and Wales is launching a consultation today on upholding professional ethical duties. This sets out five “outcomes” that regulators would have to implement so that legal professionals would provide a better service to their clients and the wider public.

Why does the Legal Services Board think that yet more regulation is needed? What does it think that bodies such as the Solicitors’ Regulation Authority and the Bar Standards Board will make of its proposals? And what will this mean for legal professionals who must already pay for two levels of regulation?

These are among the questions I put to Richard Orpin (pictured above), director of regulation and policy at the Legal Service Board, in the latest edition 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.

The body that advises the government on law reform in England and Wales is suggesting a new test for referring suspected miscarriages of justice to the Court of Appeal.

At present, the Criminal Cases Review Commission (CCRC) cannot send a case to the appeal court unless it considers that there is a “real possibility” that the conviction will be quashed. In the absence of exceptional circumstances, there must be also be a new argument or fresh evidence.

In a 700-page consultation paper on criminal appeals, the Law Commission suggests that the CCRC should refer a case to the Court of Appeal if the review body thinks the conviction might be unsafe. Safety is the test currently used by the Court of Appeal itself.

In addition to the consultation paper and the press notice, the Law Commission has published a comprehensive summary of fewer than 40 pages. There is also an easy-read version.

The charity Appeal, which represented Andrew Malkinson in his successful attempt to have his wrongful conviction for rape quashed after he had spent more than 17 years in prison, said:

We welcome the Law Commission's provisional adoption of several reform proposals Appeal has called for, including changes which if implemented will boost the effectiveness and accountability of the CCRC, make it easier for wrongful conviction survivors to get the compensation and support they need and help ensure that vital evidence on cases is not prematurely destroyed.

However, we know from our work on behalf of Andrew Malkinson and many others that our country's failing appeals system needs a complete overhaul.

The government should implement the compensation test change recommended by the Law Commission right away as too many innocent people have been denied the means to rebuild their lives.

For this week’s episode of A Lawyer Talks, I’ve been discussing the commission’s provisional proposals with Professor Penney Lewis, the law commissioner responsible for criminal law. 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.

The director general of MI5 told the independent commissioner who oversees his work that the security service had given false evidence in court shortly before the security service told the courts themselves.

As investigatory powers commissioner, Sir Brian Leveson oversees the use of covert powers by more than 600 public authorities, including the UK’s intelligence agencies, law enforcement agencies, police, local councils and prisons.

Last Wednesday, a High Court judge varied an injunction in a case involving a BBC investigation into an MI5 agent who is alleged to have terrorised his partner. Mr Justice Chamberlain said that MI5 evidence “was not just misleading, it was false. Whether or not it was deliberately false is the subject of an investigation.” That investigation was announced on the same day by the home secretary.

Leveson had agreed to talk to me a day later about how he and his team of retired judges decide whether to approve warrants signed by senior ministers and others that allow agencies including MI5 to interfere with the privacy of intelligence targets.

If the security service could lie to a court — as the BBC had alleged MI5 had done — then how could he be sure its officers were not lying to him?

“That’s a good question,” Leveson replied. The former senior appeal judge continued:

First of all, I have a very good relationship with the heads of each of the intelligence community and particularly in relation to MI5, who were concerned in this particular issue, with Sir Ken McCallum.

The relationship is based upon a comment that I made very early on and repeat all the time, which is: if you have a problem tell me about it. I will report on it, as appropriate, in the annual report but I will help you solve it. If you don’t tell me about it and I find out, then I am going to take a much more aggressive role in relation to its resolution.

I can’t obviously go into detail about this particular case. All I can say is that Sir Ken came himself to tell me what he was about to tell the court as soon as — he made it clear — he found out what the position was.

So how can I demonstrate they’re telling me the truth? Only by going in to check, which I can do. And if an error is reported, then I can send inspectors in to investigate that error.

And if that error has caused significant harm to an individual and it’s consistent with national security, I can tell the individual in rather opaque terms that they are entitled to apply to the Investigatory Powers Tribunal who have the power to award compensation in appropriate cases.

In a rare interview about his work, Leveson said the delay in getting his annual reports published was is one of his perennial problems. It was “not entirely fair” to say the government was stalling. But, in what appeared to be a sign of his frustration with the lengthy process of checking his reports for inadvertent security breaches, he disclosed the number of applications for warrants that he and his colleagues had rejected in 2023 and 2024 and explained what the figures told us about the effectiveness of the “double-lock” provisions. And we discussed some of his operational work.

Leveson also gave me a brief update on the report he is preparing for the justice secretary on reforming the criminal justice system of England and Wales. He is working in parallel with David Gauke, who calls for a reset of sentencing in a report published today. Legislation on both sets of recommendations is expected in the summer.

* Although my weekly podcasts are normally reserved for paying subscribers to A Lawyer Writes, I have agreed with the Investigatory Powers Commissioner’s Office that there will be no paywall on this interview. You can listen to it in full by clicking the ► symbol above.

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Does it matter who our judges are? Yes, says an academic lawyer who has just published the fruits of his empirical research.

Different judges exercise their power in different ways, according to a new book by Dr Lewis Graham, fellow in law at Christ’s College Cambridge. Some judges are more comfortable with pushing boundaries whilst others are more restrained. Some grant the state a lot of leeway whilst others apply heavy scrutiny, he writes in his book Judicial Individuality on the UK Supreme Court.

Some are, as Lord Denning suggested, bold spirits — whilst others are timorous souls.

Graham (pictured) discussed these issues with me yesterday for 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.

A judge who agreed that the schoolgirl Sara Sharif could live with her father and stepmother was “deeply upset” when they murdered her, I was told last week.

Sir Rupert Jackson, a retired appeal judge who has known Alison Raeside for many years, said she was “as upset about this as everyone else and all your listeners”.

In an interview for my podcast A Lawyer Talks, the former lord justice of appeal (pictured above) said that a consent order Judge Raeside had made in 2019 could not be criticised. But she was “fearful” of the likely publicity after an anonymity order was lifted by the Court of Appeal last Friday. Raeside had twice been the victim of serious stalking and harassment.

Jackson thought the Court of Appeal had been right to allow reporters to name Raeside — as well as Peter Nathan and Sally Williams, retired circuit judges who had earlier, limited involvement in the Sharif case. But the former appeal judge said it would have been helpful if his successors had acknowledged that Mr Justice Williams — the judge who banned publication of the names in December — was drawing attention to real risks facing members of the judiciary.

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.

Eyebrows were raised just before Christmas when a serving judge was apparently nominated as a new political peer. But although the Downing Street statement was not entirely clear, Her Honour Judge Levitt KC had very properly resigned from the judiciary just a few hours before the announcement of her appointment as a legislator. This week, Alison Levitt will be introduced into the House of Lords as Baroness Levitt KC.

Levitt, 61, was called to the bar in 1988 and took silk 20 years later. She then joined the Crown Prosecution Service as principal legal advisor to the director of public prosecutions, one Keir Starmer. In 2014, Levitt became a partner at the law firm Mishcon de Reya, working there until she returned to the bar in 2018. She served as a circuit judge from 2021 to 2024 and has now rejoined her old chambers, though she won’t be appearing in court as an advocate.

In her first interview as a Labour politician, Levitt told me about the challenges facing the circuit bench and what she hopes to achieve in her latest incarnation. New to the role she may be, but — as you’ll hear — she gave as good as she got.

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