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News


17/09/14

36 Crime’s Kathryn Howarth successfully acts for the Czech Republic in extradition of a man charged with the theft of bronze plates embodying the names of deceased persons from tombstones in the Terezin Memorial

Kathryn Howarth successfully acts for the Czech Republic in a hearing in which the Administrative Court upheld an order for the extradition of a man charged with the theft of bronze plates embodying the names of deceased persons from tombstones in the Terezin Memorial – a National Cemetery in Terezin and former Concentration Camp during World War II. 

The Terezin Memorial was created by the Czech government in 1947 as the National Suffering Memorial. It was opened on the site of the suffering of tens of thousands and was later on renamed the Terezin Memorial. The Terezin Memorial is the only institution of its kind in the Czech Republic established to commemorate the victims of the Nazi political and racial persecution during the occupation of the Czech lands in World War II. 

The alleged offences occurred on two occasions during April 2008 when some 827 bronze plates were stolen from the Terezin Memorial.

16/09/14

36 Employment’s Richard O’Dair on disability discrimation – “Count Yourself Lucky”

To read the full article, please go to 36 Employment’s ‘New in Employment Law’ blog:

http://newinemploymentlaw.com/count-lucky/ 

15/09/14

36 Civil – Civil Litigation – Want to check when a document was created or printed without evidence of fraud?

Civil Litigation – Want to check when a document was created or printed without evidence of fraud?

by Stephen Bishop, Barrister & Certified Cyber Forensics Professional

 

Sometimes a party may rely on a document sent which you’ve not received, or a note of a meeting which supports their recollection of oral discussions which you harbour a suspicion may have not been quite as contemporaneous. If, as almost always will be the case these days, the document existed in electronic format, such as Microsoft Word or an email, then there may be information as to when it was created, last modified, last printed etc. (Metadata): all very useful to verify the other side’s assertions. You clearly don’t have any basis for alleging fraud or disclosure based upon fraud, so how do you get the metadata?

CPR: Electronic Documents & Metadata

CPR 31.4, following various statutory definitions including s.7 Civil Evidence Act 1995, defines “document” as anything in which information of any description is recorded. This includes electronic documents as the general Practice Direction PD31A, not just the specific PD31B for cases likely to be allocated to the Multi Track, confirms at 31APD.2A that “document” extends to:

This extends to electronic documents, including e–mail and other electronic communications, word processed documents and databases. In addition to documents that are readily accessible from computer systems and other electronic devices and media, the definition covers those documents that are stored on servers and back–up systems and electronic documents that have been “deleted”. It also extends to additional information stored and associated with electronic documents known as metadata.

It is important to remember that this includes deleted copies or versions. Thus if a party states that they have deleted the electronic version of the document the “deleted” copy may still exist and be recoverable.

Metadata is defined in 31BPD.1 5(7) as:

“Metadata” is data about data. In the case of an Electronic Document, Metadata is typically embedded information about the document which is not readily accessible once the Native Electronic Document has been converted into an Electronic Image or paper document. It may include (for example) the date and time of creation or modification of a word–processing file, or the author and the date and time of sending an e–mail. Metadata may be created automatically by a computer system or manually by a user;

CPR 31.14: Documents referred to in statements of case etc.

First, check the pleadings. It is perhaps not well known that you have the right to inspect a document mentioned in a statement of case, along with witness statements, summaries, or affidavits. This right is distinct from any formal disclosure phase and whether or not disclosure lists have been complied or exchanged. So you can quite properly request to inspect or be given a copy of the electronic version of a document and/or its metadata on receipt of the pleadings well before the first CMC or the standard disclosure phase. In doing so, you are exercising your right under the CPR – not suggesting or alleging fraud or misconduct.

CPR 31 does not apply to the Small Claims Track (CPR 31.1(2) & 27.2(b)); however before allocation it will still apply so you may still be able to obtain information if you are quick.

Once a written request has been made to inspect (CPR 31.15(a)) the other side will have 7 days from receipt of your demand to permit inspection. If you ask for a copy, that also has to be provided within 7 days.

According to the White Book at 31.15.2: “Inspection extends to examining electronic, audio or visual recordings or other documents with appropriate equipment. Thus in certain cases it may be appropriate and proportionate to search for deleted versions. The commentary goes on to highlight that actual access to the database may not be appropriate if there are issues as to wider confidentiality. What seems unarguable is that you would have the right to a print out of the metadata or a copy of the electronic format. Take care though, as the copying process could alter the metadata and hence you may wish to consider using the services of an IT professional, potentially even a Cyber Forensics Professional, to obtain the copy to avoid such issues.

CPR 31.12: Documents referred to in correspondence

CPR 31.2 provides that a document is disclosed when a party states that it exists or has existed, thus if it has been referred to in correspondence before the formal disclosure stage, it has in fact already been disclosed. Once disclosed, you have the right to inspect by CPR 31.3 thus once again you may request to inspect and/or obtain copies which includes the metadata as well as the document itself.

CPR 313: Right of inspection of a disclosed document

The right to inspect, or receive copies, of a disclosed document that still exists and is under the control of the other party,  is fettered  in practice by 2 potential issues:

CPR31.3(1)(b): the party disclosing the document has a right or a duty to withhold inspection of it. This covers mainly privilege such as legal or that against self–incrimination.

CPR31.3(2):  it would be disproportionate to the issues in the case to permit inspection

Given we are considering documents that are mentioned in pleadings or correspondence, it is highly unlikely that either would apply.

Conclusion: Ask Early

An early request to verify the metadata and hence the probity of a document can not only assist with an early assessment of the merits of a case, as the analysis may support a parties recollection of events, but may also apply pressure in cases where a document was honestly created, but later than suggested or created dishonestly. You are not, nor should you be, suggesting or alleging fraud or misconduct but simply exercising your rights under the CPR. It will help if, as normal, you make it clear under which CPR provision the request is made.

 

 

 

NB: The CCFP credential is awarded by (ISC)2® the largest not–for–profit membership body of certified information and software security professionals worldwide, with nearly 100,000 members in more than 135 countries. It indicates expertise in forensics techniques and procedures, standards of practice, and legal and ethical principles to assure accurate, complete and reliable digital evidence admissible to a court of law. It also indicates the ability to apply forensics to other information security disciplines, such as e–discovery, malware analysis, or incident response. For more information on the CCFP, visit www.isc2.org/ccfp 

22/08/14

36 Family’s Gillian Temple–Bone successfully appeals decision in the Court of Appeal in Re W (Children) acting for the Local Authority

RE W (CHILDREN) (2014)

CA (Civ Div) (Jackson LJ, McFarlane LJ, Kitchin LJ) 19/08/2014

FAMILY LAW

CARE PROCEEDINGS : CHILD PROTECTION : CHILDREN’S WELFARE : PARENTS : SUPERVISION ORDERS : EMOTIONAL NEEDS : EMOTIONAL HARM

The local authority’s application for care orders was remitted for rehearing where a judge had failed to grapple with evidence that three young children needed emotional care and support that their father was unlikely to be able to provide on his own.

The appellant local authority appealed against a decision refusing to make care orders in respect of three young children and instead making supervision orders for one year. 

The proceedings concerned three young children who all had particular difficulties. The eldest, a boy aged 12, was highly vulnerable and had emotional difficulties. The second, a girl aged 8, suffered from poor growth and developmental difficulties and had a statement of special educational needs. The youngest, a boy aged 4, suffered from global developmental delay. The parents had their own difficulties, the father (F) had alcohol problems and the mother (M) suffered from mental ill–health. The children had been exposed to their volatile relationship. M had left the family home leading to further conflict and uncertainty. She then returned, only to leave again. A child protection plan had been formulated and it was agreed that the threshold criteria were met because the children were suffering significant emotional harm. At the time of the hearing of the local authority’s application for care orders and/or placement of the two younger children for adoption, F was providing for the physical needs of the children with monitoring and support from the local authority. However, the evidence of the local authority’s assessment, an independent social worker, the case worker and the guardian was that F’s ability as a parent was such that he did not recognise and could not meet the emotional needs of the children. The judge refused to make placement orders and there was no appeal against that decision. He refused to make care orders and instead made supervision orders. 

HELD: The evidence of the social work professionals was clear that F could not meet the children’s emotional needs. Their needs were complex; and complex solutions were necessary for them to have a positive experience. The evidence was that F did not understand their needs; his parenting was inconsistent; the older boy was treated as older than he was and the younger children were treated as younger; he failed to deal with unwanted and unkind behaviour between the children; he did not set appropriate boundaries. The children had lost their mother, and F had his own vulnerabilities and lacked insight into the deficit in his care of the children. The judge nevertheless decided that the children should remain with F. The judge appeared to have focussed on the unsettling effect of M’s return to the family home and to have thought that that problem had been neutralised. There was a mismatch between the wealth of evidence about the difficulties of caring for the children’s emotional needs and the judge’s appreciation of it. Perhaps the judge had not received the assistance from counsel that the appeal court had received. The judge did not have to accept the professional evidence, but if he did not he had to grapple with it and explain his reasons. The outcome was unsatisfactory. The object of the exercise had been to develop a bespoke plan for each of the three children. Unfortunately the court had not fully engaged in that process. The decision was set aside and the case remitted to another judge. The supervision orders would continue as interim orders. Appeal allowed

 

Counsel: 

For the appellant: Gillian Temple–Bone 

For the father: Eilidh Gardner 

For the guardian: Maggie Jones 

 

Solicitors: 

For the appellant: In–house solicitor 

For the father: Burgess & Co 

For the guardian: Bramwell Browne Singer

 

For full details of the case, please click here.

 

19/08/14

Adrienne Lucking QC and Felicity Gerry QC speak to Chambers’ Women in Law: “Female Silks: Career milestones, challenges and tips for the next generation”

To read the full article please click here.

12/08/14

36 Consumer release follow up slides and annotations from TSI 2014 in Harrogate

Please download a copy of the slides and accompanying notes below:

CPUT UNFAIR TRADING

Slides

Accompanying Notes

 

POWERS CRAZY

Slides

Accompanying Notes

 

05/08/14

36 Crime’s William Harbage QC and Mary Prior successfully prosecute Hinckley murderer James Burton

The case was notable for the use of Body Camera video footage taken by police officers attending the scene whilst the incident was still in progress and afterwards during Burton’s arrest and detention. 

For full details, see link to the full case below:

http://www.leicestermercury.co.uk/Remorseless-killer-James-Burton-given-life/story-22046329-detail/story.html

01/08/14

Holiday (Pay) from Hell – Richard O’Dair, Head of 36 Employment

Holiday pay may be a boon for employees but for employers, statutory holiday pay is increasingly problematic. The problem is not simply that employees can accumulate holiday pay whilst off sick. Nor even that if they fall ill on holiday they can switch to sick leave. The far more telling blows are the decisions of the ECJ to the effect that holiday pay must include not only basic pay but also an element to reflect other parts of the package which reward work done (as opposed to expenses payments) such as commission and, possibly, overtime.

The difficulties of calculation may be formidable. If earnings from commission are variable, the same is inevitably true of commission based holiday pay. A more potent problem is that it is possible for claims to extend backwards over time for many years. This is because, provided an employee brings a claim for underpayment of holiday pay within 3 months of the last day of underpayment, he can also claim for any previous days of underpayments since they count as being “part of a series of deductions” for the purposes of s.27 of the Employment Rights Act. In such a case there is NO limitation period.

Consider the following:

Helen works for a digital advertising company Incentive Ltd. Like four of her colleagues, she is a paid a basic of £1500 pw net and earns on average £3,000 net commission. She has just come back to work having had 10 days holiday. Her holiday pay has always been calculated on the basis of her basic pay £375/ week or £75/day. However Helen should have been paid an extra £150/day while she was away i.e. £1,500

However Helen had also taken a further 14 days holiday earlier in the holiday year for which she is now owed 14 x £150 = £2,100

Even more worryingly Helen has been with the company for 10 years and has taken 28 days holiday each year leading to an underpayment of £42,000.

Thus Helen is owed £45,600 and her 4 colleagues paid on a similar basis may have similar claims.

Clearly Incentive Ltd needs to take urgent action – including making sure all future payments of holiday pay are correct.


31/07/14

36 Family’s Kate Tompkins writes in Family Law Week – “When is Same–Sex Parenting a Private Fostering Arrangement?”

For the full article, please click here.

30/07/14

36 Crime currently recruiting 2nd Junior Clerk

Salary: up to £27,000

Closing date: Thursday 14th August 2014

 

36 Bedford Row are one of the country’s largest sets, comprising over 80 tenants, including 11 QCs, practicing in Serious & Complex Crime; Family Law; Commercial & Civil Law, Consumer Law, Employment  & Family. Chambers are managed by a CEO and 3 Practice Managers for each of their core teams in crime, civil & family.

A successful and expanding set, they are looking to recruit an experienced criminal clerk to fulfil a vital role in their dedicated criminal clerking team

Reporting to the Criminal Practice Manager, key responsibilities will include:

·         Management of daily diaries for Crime & Consumer teams

·         Assisting with short & long term diary management

·         Assisting with clash management

·         Booking cases & recommending suitable Counsel

·         Supervising & assisting junior clerks

·         Supervision of complex document management (LEXDOC) and helping out when necessary

·         Assisting with business development events and marketing projects

·         Attending relevant functions

·         Developing strong relationships with Instructing Solicitors, Government bodies & all those instructing Chambers

 

All enquiries to:

ABC Chambers Solutions

1 Fetter Lane

London EC4A 1BR

tel : 0207 979 2070

www.abcchamberssolutions.com

 

Please e–mail a comprehensive CV to: recruitment@abcchamberssolutions.com

or contact Bill Conner on 07557 670560 or John (Charles) Charlick on 07808 137902 for a confidential discussion. All direct applications will be forwarded to ABC Chambers Solutions.

36 Bedford Row  is an equal opportunities employer and is committed  to providing equality of opportunity regardless of race, colour, ethnic or national origin, nationality, citizenship, sex, gender re–assignment, sexual orientation, marital or civil partnership status, age, disability, religion or belief, political persuasion, pregnancy or maternity.

Recent News

36 Crime’s Kathryn Howarth successfully acts for the Czech Republic in extradition of a man charged with the theft of bronze plates embodying the names of deceased persons from tombstones in the Terezin Memorial
Read more

36 Employment’s Richard O’Dair on disability discrimation – “Count Yourself Lucky”
Read more

36 Civil – Civil Litigation – Want to check when a document was created or printed without evidence of fraud?
Read more

36 Family’s Gillian Temple–Bone successfully appeals decision in the Court of Appeal in Re W (Children) acting for the Local Authority
Read more

Adrienne Lucking QC and Felicity Gerry QC speak to Chambers’ Women in Law: “Female Silks: Career milestones, challenges and tips for the next generation”
Read more

36 Consumer release follow up slides and annotations from TSI 2014 in Harrogate
Read more

36 Crime’s William Harbage QC and Mary Prior successfully prosecute Hinckley murderer James Burton
Read more

Holiday (Pay) from Hell – Richard O’Dair, Head of 36 Employment
Read more

36 Family’s Kate Tompkins writes in Family Law Week – “When is Same–Sex Parenting a Private Fostering Arrangement?”
Read more

36 Crime currently recruiting 2nd Junior Clerk
Read more