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36 Bedford Row
London
WC1R 4JH

DX 360 LDE
T +44 (0)20 7421 8000
F +44 (0)20 7421 8035

20/10/14

We are delighted to announce that Jessica Franses has won the Lawyer Monthly Legal Award 2014 for Art Litigation Barrister of the Year UK

For full details and to read Jessica’s Art Law Awards profile, please click here.

15/10/14

36 Employment Update – Great Britain closes in on Sweden: New rights for fathers, same sex partners, and intended parents in a surrogacy to attend 2 antenatal appointments

by Stephen Bishop, 36 Employment

Previously, it was only the expectant mother who was legally entitled to time off during working hours for the purpose of receiving antenatal care but the Children and Families Act 2014 has changed that. From 1 October 2014, those employees with a “qualifying relationship” with a woman or her expected child have a right to time off.

Do not fooled by the word “relationship”: a would–be father from a one night stand qualifies. Nor does this apply only to fathers who are married or in a Civil Partnership – same sex partners qualify, as do intended parents of a child in a surrogacy arrangement.

It will be automatically unfair to dismiss an employee for exercising these rights and therefore the 2 year qualifying period does not apply. Employees are also protected from any detriment falling short of dismissal. If the time off is unreasonably refused, an award can be made of twice the hourly rate of pay for each hour that could have been taken off.

How Much Time off:

· 2 antenatal appointments. Each can be up to 6.5 hours.

Qualifying Relationship: with either the unborn child or the mother.

· The baby’s father;

· The expectant mother’s spouse, her civil partner, or partner (of either sex) in an enduring relationship;

· Intended parents of a child in a surrogacy arrangement if they expect to be entitled to and intend to apply for a parental order in respect of that child.

Thus in some, probably rare cases, an employer may have more than one person entitled to such leave in addition to the mother if she is also employed. Equally one person could, in exceptional circumstances involving 2 expectant mothers, be entitled to time off for each mother.

Qualifying period:

· No qualifying period for employees.

· Agency workers will be entitled to the time off once they have reached the 12 week qualifying period under the Agency Workers Regulations 2010.

Employers’ right to information

An employer can request an employee to provide a signed declaration stating:

1. that the employee has a qualifying relationship with a pregnant woman or her expected child;

2. that the employee’s purpose in taking time off is to accompany a pregnant woman to an ante–natal appointment;

3. that the appointment in question is made on the advice of a registered medical practitioner, registered midwife or registered nurse; and

4. the date and time of the appointment.

An employer is not entitled to ask for any evidence of the ante–natal appointments, such as an appointment card, as this is the property of the expectant mother attending the appointment.

Tribunal Implications

· Protection from any detriment arising from the exercise of their right to the time off;

· Dismissing an employee will be automatically unfair if the principal reason is for exercising their right to time off and the normal qualifying period for unfair dismissal claims will not apply;

· If time off is unreasonably refused, an award can be made of twice the hourly rate of pay for each hour that could have been taken off.

The Department of Business Innovation & Skills have produced an employer’s guide to the new right which can be found at: 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/351413/bis-14-1063-time-off-to-accompany-a-pregnant-woman-to-ante-natal-appointments-employer-guide.pdf

 

08/10/14

Saoirse Townshend successfully acts for the Appellant where extradition is found to be both oppressive due to the passage of time and disproportionate under Article 8 ECHR

The High Court today allowed the extradition appeal of a 60–year old Polish national to face trial for two offences of obtaining a loan by deception in 2005. In 2007 the Polish Consulate in London had issued a passport to the Appellant but it wasn’t until 2012 and 2013 when the domestic warrant and then the European Arrest Warrant were issued. The Judicial Authority were found by the court to be culpable for that unexplained delay. In these circumstances, Blake J found that extradition would be both oppressive due to passage of time, and would constitute a breach of his Article 8 rights.

In Kramek v Poland, Saoirse was instructed by Leslie Franks Solicitors.

 

07/10/14

36 Crime is very pleased to announce the arrival of Grace Hale and John Hallissey

36 Crime welcomes new tenants Grace Hale and John Hallissey, previously of KCH Garden Square, who have joined Chambers with immediate effect.

All diary bookings and papers have been transferred to their 36BR diary so please contact the criminal clerks with any queries or future bookings:

T: 0207 421 8000 or email criminalclerks@36bedfordrow.co.uk 

03/10/14

Practitioners’ guide to criminal judicial review published

Criminal Judicial Review, a comprehensive guide to judicial review in the criminal justice system, has been published by Hart Publishing with a Foreword by the Rt Hon Lord Judge. Nine members of Chambers have contributed to the book including Piers von Berg (editor), Richard Wilson QC, Sarah Parkes, James McLernon, David Ball, Geoffrey Sullivan, Florence Iveson, Saoirse Townshend and Kathryn Howarth. 

                                     

                          1

The book is a comprehensive guide to challenging decisions of criminal courts and public bodies in the criminal justice system using judicial review. Written by a team of criminal and public law practitioners, it considers claims for judicial review arising in the criminal justice system, which now represent a distinct area of public law. These claims are set apart by special considerations and rules; for example, on the limits of the High Court’s jurisdiction or the availability of relief during ongoing proceedings.

Criminal practitioners may lack the background to spot public law points. Equally, public law specialists may be unfamiliar with criminal law and types of issues that arise. Criminal Judicial Review is intended as a resource for both.

The book deals with the principles, case law, remedies and, the practice and procedure for obtaining legal aid and costs. It will be of assistance to any practitioner preparing or responding to judicial review claims involving the following:

  • The Police and the Crown Prosecution Service.
  • Magistrates’ courts, the Crown Court and Coroners.
  • Prisons and the Parole Board.
  • Statutory bodies such as the Independent Police Complaints Commission and
  • the Legal Aid Agency.
  • Claimants who are children, young persons or have mental disorders.
  • The international dimension including extradition proceedings and European
  • Union law.
  • Practical considerations such as CPR Part 54, remedies, legal aid and costs.

It can be purchased from all good legal bookshops or ordered online at http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781849465373. An e–book version will follow. 


02/10/14

36 Bedford Row recognised in the Legal 500

Following publication of the Legal 500 yesterday, 36 Bedford Row is delighted to have 7 QCs recognised as Leading Silks and 6 barristers in the Leading Juniors list across all of our core practice areas.

  • In Crime, 36 Bedford Row was recognised as a Leading Set, with William Harbage QC, Frances Oldham QC, Christopher Donnellan QC, Amjad Malik QC, John Lloyd–Jones QC, Adrienne Lucking QC, and Felicity Gerry QC all recommended as Leading Silks.
  • Jonathan Kirk QC and Cameron Crowe are recommended in Consumer law.
  • Will Tyler QC, Martin Kingerley and Kate Tompkins are recommended for Family and Children law, including Court of Protection.
  • John Small was recommended in Employment law.
  • In Commercial and Civil, Peter Dean and Stephen Goodfellow are recommended for Personal Injury and Clinical Negligence.

For a full overview of the set, please click here: http://www.legal500.com/firms/9439/9439

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 

14/09/14

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.

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.

 

Recent News

We are delighted to announce that Jessica Franses has won the Lawyer Monthly Legal Award 2014 for Art Litigation Barrister of the Year UK
Read more

36 Employment Update – Great Britain closes in on Sweden: New rights for fathers, same sex partners, and intended parents in a surrogacy to attend 2 antenatal appointments
Read more

Saoirse Townshend successfully acts for the Appellant where extradition is found to be both oppressive due to the passage of time and disproportionate under Article 8 ECHR
Read more

36 Crime is very pleased to announce the arrival of Grace Hale and John Hallissey
Read more

Practitioners’ guide to criminal judicial review published
Read more

36 Bedford Row recognised in the Legal 500
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 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 Family’s Gillian Temple–Bone successfully appeals decision in the Court of Appeal in Re W (Children) acting for the Local Authority
Read more