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News


25/03/15

36 Family’s Will Tyler QC, Hannah Markham and Kate Grieve successful in the Supreme Court

Our Will Tyler QC, Hannah Markham and Kate Grieve successful in the Supreme Court which today handed down a landmark judgment relating to the costs of appeals in children cases.

The judgment can be found at https://www.supremecourt.uk/decided-cases/docs/UKSC_2014_0101_Judgment.pdf and Kate Grieve’s analysis can be found here.

18/03/15

Criminal Judicial Review said to become the “go–to” book for judicial review

Greg Foxsmith, a consultant solicitor and Higher Rights Advocate at Shearman Bowen & Co solicitors, reviewed Criminal Judicial Review. He said:

“Perhaps surprisingly, this is the first book exclusively devoted to the topic of criminal judicial review. Do we need one? Having read this, I think the answer is: yes… Commendably, the book does not steer clear of controversy, suggesting for example possible challenges following the recent appellate decision in the case of Davis. It has a clear and simple style, is easy to use and will meet the needs of the practitioner. In my view it will become the “go–to” book for judicial review.”

The book is edited by Piers von Berg with contributions from eight members of 36 Bedford Row. Greg was writing in the London Advocate, the newsletter for the London Criminal Courts Solicitors’ Association (LCCSA). 

The full review can be found at page 11 here.  

 

16/03/15

7 tips for the BBC investigation into Clarkson’s ‘punch’ from 36 Employment’s Ben Amunwa

He attracts adoration and loathing in roughly equal measure. Jeremy Clarkson’s suspension from Top Gear after allegations that he punched a producer was soon met by an online petition and close to a million signatures calling for his return. Politicians, including David Cameron, have waded in.

The stakes are high for the BBC and its notorious presenter. Depending on the circumstances, punching a colleague may well constitute gross misconduct and justify summary dismissal. Clarkson has previously received a final warning for other matters which would normally mean that any further act of misconduct would result in dismissal.

A team of BBC officials has been tasked with investigating the matter and, if necessary, disciplining Clarkson. It is a task fraught with many pitfalls for any employer, even without a household name at the centre of it.

To make their lives slightly easier, here are 7 tips for the BBC officials embroiled in the latest Clarkson saga.

1. Inform Clarkson of the specific allegations against him

It may seem obvious, but it’s remarkable how often employers either fail to do this adequately or completely forget to do it. Once detailed allegations have been made against an employee, they should be informed without delay of what they are accused of. Employees must be able to understand the basic case that they will be responding to.

2. Appoint independent, senior investigators

An employer should always appoint investigators (and if need be, disciplinary officers) who are either of a similar or a higher rank than the person being investigated. This is common–sense and helps to ensure that the process is independent.

In Clarkson’s case, this should be persons of considerable seniority in the BBC who are unlikely to be swayed by the presenter’s profile.

None of those involved in the process should be persons who witnessed or were present at the incident, or at any previous incidents of Clarkson’s misconduct. Clarkson should be informed by letter of the identity of the investigator (and any disciplinary officer) so that he can object to that person on the grounds of bias or partiality.

3. Interview the witnesses

Media reports suggest that the incident was witnessed by members of the public and BBC employees. The employer should interview any eye–witnesses to the incident. Any discrepancies should be put to the witnesses (including Clarkson himself) for their response. The interviews should be recorded preferably in writing, and the witnesses should be given the opportunity to read through the notes of their ‘statement’ and invited to sign and date it to confirm the accuracy of its contents. It is preferable to have a notetaker accompany the investigator to ensure that the interviews are recorded accurately.

4. Dial 999

An employer may have to consider referring certain types of serious misconduct to the police. If the police investigate and charge Clarkson and if he is later convicted or pleads guilty to a criminal offence, that makes the BBC’s job much easier as they can use this as conclusive evidence of his misconduct. Indeed, it may relieve some of the pressure on the BBC investigators.

If, as sometimes happens, there is a police investigation that runs parallel to a disciplinary investigation, the BBC should press on with its own investigation and come to its own separate conclusions rather than wait for the police and CPS to take action, as this could prolong the process by some months.

5. Previous warnings

Clarkson is hardly a model employee when it comes to his conduct. In May 2014 he received a final warning after using a racist term on film that was leaked to the Mirror. In the same year the programme was criticized after Clarkson used a derogatory term for Asian people in a Top Gear Burma special.

What should an employer do when investigating and disciplining an employee with an unattractive record? An employer may take into account the fact that Clarkson has already received warnings, including a final warning, even if they relate to a different issues (eg. racist remarks as opposed to physical violence). Previous warnings may be more relevant where the misconduct is similar and where the warning itself has not been challenged on an appeal and was issued after a fair process.

6. Take and keep good notes

In general, in order to avoid disputes in the Employment tribunal over what was and was not said in any given meeting or disciplinary hearing some years earlier, it is good practice to take and keep a good contemporary note of all relevant conversations. Handwritten notes should be typed up faithfully and all Parties should be given the opportunity to see the typed notes to confirm their accuracy or provide their amendments (regardless of whether those amendments are accepted unanimously or not).

Bear in mind that under the Data Protection Act 1998, anyone can request that an employer disclose any personal information that they hold on them. To avoid embarrassing emails surfacing later, all communications about the disciplinary process should be kept professional and impartial in tone and content.

7. Make the punishment fit the crime

If the BBC has followed the above tips and at the end of a reasonable investigation it genuinely believes that Clarkson punched his producer in the way alleged, this is likely to constitute gross misconduct which would normally result in summary dismissal. The BBC should consider what its internal policies have to say about any appropriate sanction that should be applied.

However, if the investigation uncovers a different set of facts that cast Clarkson’s conduct in a less serious light, then a lesser sanction or no sanction may be appropriate, in accordance with the BBC’s disciplinary policy. However, given Clarkson has already had a final warning, if any misconduct is found, dismissal is the most likely outcome.

This post draws on a handy new book, Employment Guide to Procedures, by Simon Harding of 36 Bedford Row, which Ben helped to edit.

 

10/03/15

Felicity Gerry QC currently in Bali as part of a team assisting & advising Lindsay Sandiford currently facing execution

Lindsay Sandiford is a 58 year old grandmother and a British Citizen. Lindsay was sentenced to death in Indonesia for drug charges in 2012. The UK government has refused to fund her legal defence. Lindsay has one chance to lodge a final appeal against her death sentence, called a ‘Peninjauan Kembali’ in Indonesia but she needs competent legal counsel to do so. Lindsay has recently been advised by officials at Kerobokan prison that if an appeal is not lodged very soon, she will be executed.

Lindsay deserves one last chance to challenge the death sentence.  She is not asking to be set free or to be returned to the UK, she is simply asking for the opportunity to seek justice in the Indonesian Court and to hopefully have her sentence commuted.  Indonesia has recently stepped up the execution of prisoners on death row so time is of the essence.

To donate to Lindsay’s cause please click here.

09/03/15

36 Extradition’s Saoirse Townshend, led by Mark Summers QC, successfully represents the judicial authority of Lithuania before the Divisional Court in Atraskevic v Lithuania

36 Extradition’s Saoirse Townshend, led by Mark Summers QC, successfully represents the judicial authority of Lithuania before the Divisional Court in Atraskevic v Lithuania [2015] EWHC 131 (Admin) which determined an issue pursuant to the new forum bar.

Aikens LJ and Nicola Davies J gave definitive guidance on the new forum bar (Extradition Act 2003, s.19B) in a case where the Appellant was accused of transporting prostitutes from Vilnius, Lithuania to Birmingham, UK. The court accepted the submission that the appellate court should not engage in an exercise of re–assessing all of the factual issues but instead adopt a “review” approach following Re B (A Child) (care Proceedings: Appeal) [2013] UKSC 33 [2013] 1 WLR 1911. 

04/03/15

Felicity Gerry QC has been granted leave to appeal to the Supreme Court in R v Jogee

Felicity Gerry QC has been granted leave to appeal to the Supreme Court in R v Jogee, an alleged joint enterprise murder where the legal submission relates to the foundations for secondary liability. Felicity has argued that the current state of the law on joint enterprise is unclear and over criminalises secondary parties both at common law and pursuant to the ECHR. 

 

19/02/15

James Collins instructed in Court of Appeal test cases

James Collins has been instructed to act for one of the Respondents (KG India) in test cases to be heard over 3 days in the Court of Appeal next week. The cases centre on the imposition by the Secretary of State of the ‘Minimum Income Requirement’ for British and settled persons wishing to bring or remain with a spouse in the United Kingdom and are appeals all brought by the Secretary of State. The Court will give guidance on the correct approach to cases allowed in the First Tier and Upper Tribunals on the basis of Blake J.’s judgment in MM & Others v SSHD [2013] EWHC 1900 (Admin) which was subsequently overturned by the Court of Appeal in MM (Lebanon) & Others v SSHD [2014] EWCA Civ 985.

12/02/15

36 Bedford Row sponsors Leicester Schools Courts Competition

36 Bedford Row was delighted to sponsor the best school prize at the Leicestershire Schools Courts Competition on 31st January. Matthew Lowe and Adrienne Lucking QC acted as judges for the competition which was organised by Helen Johnson, Paul Prior and Mary Prior.

The purpose of the competition is to show the young people in Leicestershire how the courts service works, how the press works and to give them the opportunity to take part in a trial in front of a real Judge.

 

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10/02/15

36 Extradition’s Saoirse Townshend successfully represents an interested party in the definitive case on prison conditions in Italy in Mohamed Elashmawy v Court of Brescia, Italy [2014] EWHC 28 (Admin).

Saoirse, led by Peter Caldwell represented the Court in Taranto, Italy, submitting that the evidential position had changed since the ECtHR Pilot Judgment in Torregiani v Italy (2009) App. No 43517/09 and the systemic nature of overcrowding in Italian prisons could no longer be established. The court accepted these submissions finding at §90: 

“….even assuming that the ECtHR’s pilot judgment in Torreggiani could rebut the presumption that Italy will conform to its Article 3 obligations with regard to prison conditions at the time that this court was considering the matter in Badre,  it cannot do so now;  events have moved on”. 

The judgment is publicly available here: http://www.bailii.org/ew/cases/EWHC/Admin/2015/28.html

03/02/15

36 Family welcomes Kelly Webb (1993 Call)

36 Family welcomes Kelly Webb who joins from Garden Court Chambers. Head of 36 Family, Andrzej Bojarski, said “It is a real pleasure to welcome Kelly to the team. It is a sign of our growing reputation that successful and well–regarded senior practitioners like Kelly want to join us. Kelly will bring her expertise in child law to further strengthen our well–regarded group of specialist in serious and complex cases concerning children, especially those with international aspects.”

03/02/15

36 Civil welcomes new tenant Stephen Taylor (2002 Call)

Richard Wilson QC, the joint Head of 36 Bedford Row said:  

“We are very pleased to welcome Stephen Taylor to 36 Bedford Row. Stephen has an established practice in property and general commercial work. He joins our specialist property team, 36 Property.” 

To view Stephen’s profile, please click here.

02/02/15

36 Crime’s Adrienne Lucking Q.C. successfully prosecutes Lincoln manslaughter

Adrienne Lucking Q.C. successfully prosecutes Harry Scott, 24, for the manslaughter of Richard Woods, 32.

During the trial Adrienne Lucking Q.C. told the jury that Scott unlawfully imprisoned Mr Woods in the loft of his home in Spring Terrace, Louth, by raising the connecting ladder and securing it so that it could not be lowered.

Mr Woods attempted to climb between two of the ladder steps and became trapped. He subsequently died as a result of asphyxiation.

Read more about the case here.

 

02/02/15

36 Property – Resolving Excluded Assignments

UK Leasing Brighton Ltd v Topland Neptune Ltd and Zinc Cobham Ltd v Adda Hotels (an unlimited company) [2015] EWHC 53 (Ch)  

by Stephen Bishop

Summary

While excluded assignments are rare, in this case the High Court confirmed by declaratory relief that it can be possible to sort out at least some situations specifically the re–vesting a lease in the original tenant still guaranteed by the original guarantor following a purported assignment that resulted in an excluded assignment.

Background

The case results from the effect of the Court of Appeal’s ruling last year in Tindall Cobham 1 Ltd v Adda Hotels (an unlimited company) [2014] EWCA Civ 1215. In that case, 2 companies in the Hilton Group assigned the leases, guaranteed by Hilton Worldwide Inc, to £1 subsidiary companies in the Hilton group without the landlord’s consent which was required under the lease. As the assignment, intended it seems to remove the valuable guarantee, was in breach of covenant, it was an excluded assignment within s.11 of the Landlord and Tenant (Covenants) Act 1995 (‘LTCA 1995’). That had the result that the assignment was effective to the assignee (T2), the assignors (T1) were not released from the covenants in the lease and guarantor (G) still guaranteed the performance of those observations.

Thus it was that the parties wished to see the lease once more vested in T1 and with G once again guaranteeing T1’s obligations under the lease.

The Challenge

Would the re–assignment from T2 to T1 with G guaranteeing T1 under a fresh guarantee fall foul of the LTCA 1995 anti–avoidance provisions, specifically s. 25 in light of the decision in  K/S Victoria Street v House of Fraser [2011] EWCA Civ 904 which held that any requirement on a guarantor to guarantee the assignee would be void under s.25?

The Rationale

On re–assignment to T1, T2 was released from the covenants [s.5(2)(a)]. As T2 was released so was T1 [s.1(2)(b)] from his original covenants that persisted due to the excluded assignment. Consequently, G was released [s.24(2)] from the original guarantee; and was therefore free to enter into an new guarantee. Mr Justice Morgan declared that this approach would be valid and not contrary to the LTCA 1995 anti–avoidance provisions.

Conclusion

While this judgement does not resolve the issues arising out of K/S Victoria Street, it does at least confirm that there is a mechanism by which parties who have created an excluded assignment can be put back into their starting position in a sensible manner. The judgement also contains a thoughtful analysis by Mr Justice Morgan of the interaction of certain provisions of the LTC a 1995 which practitioners may find useful to read.

Recent News

36 Family’s Will Tyler QC, Hannah Markham and Kate Grieve successful in the Supreme Court
Read more

Criminal Judicial Review said to become the “go–to” book for judicial review
Read more

7 tips for the BBC investigation into Clarkson’s ‘punch’ from 36 Employment’s Ben Amunwa
Read more

Felicity Gerry QC currently in Bali as part of a team assisting & advising Lindsay Sandiford currently facing execution
Read more

36 Extradition’s Saoirse Townshend, led by Mark Summers QC, successfully represents the judicial authority of Lithuania before the Divisional Court in Atraskevic v Lithuania
Read more

Felicity Gerry QC has been granted leave to appeal to the Supreme Court in R v Jogee
Read more

James Collins instructed in Court of Appeal test cases
Read more

36 Bedford Row sponsors Leicester Schools Courts Competition
Read more

36 Extradition’s Saoirse Townshend successfully represents an interested party in the definitive case on prison conditions in Italy in Mohamed Elashmawy v Court of Brescia, Italy [2014] EWHC 28 (Admin).
Read more

36 Family welcomes Kelly Webb (1993 Call)
Read more

36 Civil welcomes new tenant Stephen Taylor (2002 Call)
Read more

36 Crime’s Adrienne Lucking Q.C. successfully prosecutes Lincoln manslaughter
Read more

36 Property – Resolving Excluded Assignments
Read more