Press Gazette

October 2009

The protection from Harassment Act 1997 came in to force in July 1997. Twelve years on it is now being used by celebrities to curtail the activities of the press, says lawyer Tim Lawson-Cruttenden

Injunctions upon the Harassment Act have proved to be highly attractive civil remedies, as they are enforceable in the criminal courts. Consequently, breaching any injunctions ordered under the Act “without reasonable excuse” is a criminal offence.

The Act’s two tests prohibit a person from acting in a manner “which he knows or ought to know amounts to harassment” and provide that a course of conduct shall amount to harassment “if reasonable person in possession of the same information would think the course of conduct amounted to harassment of the [victim]”. Both tests represent safeguards built in to the legislation to ensure that the meaning of “harassment” is clear to all.

Another in-built safeguard is that injunctions are equitable remedies. As such, a court will only grant one where it is considered that it would be just and reasonable to make an order.

Many people consider, perhaps erroneously, that the Act was principally brought in to curb stalking. Although stalking was undoubtedly in the minds of the legislators, a conscious decision was taken by John Major’s government to reject the Stalking Bill 1996 and to make a wider and further-reaching piece of legislation.

The surge of public interest in celebrities in recent years has fuelled an unprecedented amount of news, especially for gossip magazines. As a consequence, many celebrities have been pursued by armies of journalists and paparazzi.

Many celebrities consider injunctions under the Act as a way of containing the media, especially given the potential sanctions and immediate power of arrest which come with the injunction package.

Indeed it seems surprising, from a legal perspective, that it has taken so long for celebrities to exploit this area of the law.

The use of these injunctions was pioneered by celebrities such as Sienna Miller, Amy Winehouse and Lily Allen. The injunctions seem to be the latest “must-have” for any A-lister given that Simon Cowell, Frank Lampard and John Terry are all rumoured to be considering getting one.

But is this a step too far? While respect must be had for the private lives of public figures and celebrities, it seems outrageous that Sienna Miller should boast (while being interviewed by Jeremy Clarkson on Top Gear) about exposing herself to paparazzi who were unable to respond due to a court order.

The injunctions have been used in a variety of scenarios, from the protection of the vulnerable from violent or sinister individuals to the protection of thousands of employees from being targeted by quasi-terrorist direct-action groups. Yet none of the uses of the Acct have been seen by victims as amusing as Sienna Miller seemed to find.

Is it right that an Act intended to protect vulnerable individuals should be regarded in such a seemingly absurd manner? Is it right that celebrities who rely on the media for their fame and fortune should be able to invoke a power of arrest when the glare of the press doesn’t suit them?

This trend of apparent “designer injunctions” undermines Parliament’s intentions. It is highly doubtful whether Parliament intended the Act to be used in such a frivolous and unreasonable manner, especially with the freedom of the media at stake.

It is high time the media adopted a more robust approach to this cavalier and rather draconian behaviour.

Several years ago the idea of a solicitor advocate being featured in a law report in The Times would have been unthinkable. But a recent case where this occurred has left no doubt that rights of audience at the highest courts are now out of the exclusive grip of the Bar.

The newspaper listed army officer-turned-solicitor advocate Tim Lawson-Cruttenden, of London firm Dawson Cornwell & Co, as the man in court for the respondent in an appeal presided over by the Master of the Rolls and Lords Justices Millett and Schiemann.

And at the end of the case there was no question that counsel could have achieved a better result than Lawson-Cruttenden. He won a decision which he claims overturns Green Book rules and directly conflicts with the leading authority on the area of law at the centre of the case. “And it took a solicitor to do it,” he said. “What I now wonder is how many other rules there are which are being adhered to could and which should also be overturned.”

Lawson-Cruttenden has grave doubts that the rulings, first of a County Court judge and later of the Court of Appeal, would have been achieved had he designated the courtroom role to a member of the Bar, rather than conduct the case himself with his recently acquired solicitor advocate status. “I honestly believe if I had instructed a junior member of the Bar in the case, they would probably have accepted the authorities I disputed,” he said.

He also believes the case would not have been concluded so rapidly had he not master-minded it personally. Use of counsel would, he claims, have slowed matters down.

The case’s signpost ruling strengthens the rights of those who face harassment from unwanted suitors, but who are not protected by laws intended to protect spouses from domestic violence.

Complete article here  >> The Lawyer

SolicitorsJournal.Com

02/06/09

Tim Lawson-Cruttenden argues that solicitors could give bankers a lesson or two in protecting clients’ funds

The banking system has been on the verge of collapse for a frighteningly long time. The arithmetic is awesome. “All told, taxpayers are on the hook for about £500bn. To put that in context that is fine times the entire health budget or a penny on income tax for 125 years,” reported Patrick Hosking in The Times on 9 May 2009 in relation to Royal Bank of Scotland. This could be a crisis of epic proportions, forcing future generations to bear the cost of present financial indiscretion. In the words of Launcelot in The Merchant of Venice, it now seems that “the sins of the father are to be laid upon the children”. Just as there is no such thing as a free lunch, so the concept of ‘free banking’ upon which much of the financial system was based may cost this and future generations dear.

Just how the new system will arise out of the embers of the old is under much discussion and is of course the subject of Lord Turner’s Review.

I am neither an economist nor a banker. However, like most solicitors, I have a contribution to make to this debate since I manage clients’ money in accordance with the Solicitors’ Accounts Rules 1998: the new system could do a lot worse than study these rules and consider their application to retail banking.

It seems to me that the accounts rules are a model instrument for the storage and ‘ring-fencing’ of money. Rule 22 deals with “withdrawals from a client account” as follows:

Rule 22(1): “Client money may only be withdrawn from a client account when it is:

1)   Properly required for a payment to or on behalf of the client;

2)   properly required for a payment of a disbursement on behalf of the client; or

3)   properly required in full or partial reimbursement of money spent…on behalf of the client.”

Rule 22(2) imposes similar obligations concerning controlled trust money.

The overriding principle is contained in Rule 22(7) that “money held for a client or controlled trust in a separate designated client account must not be used for payments for another client or controlled trust”.

Such is the importance of this rule that nothing other than strict compliance is required. Indeed any solicitor who breaches or infringes these rules in any way is likely to have his/her practising certificate withdrawn or continued on stringent terms.

Why is it that this model is not being considered? Is it because the banking system is based upon fundamental flaws which are immediately apparent? The position is that credits on ordinary ‘checking’ accounts remain unsecured and indeed ‘title’ passes to the relevant bank. The accounts rules recognise this: “Once money has been paid into an account set up under 16(1)(b), it ceases to be client money” [nb(i)]. It seems that, under the present system, the only matter which stands between a solvent and an insolvent client account is the taxpayer’s guarantee, but only to the extent of £50,000 for each such account.

There is a paradox between the strict application of the accounts rules while they are accounted for by solicitors and the relaxed rules which apply when they are accounted for by banks. There is also an inherent contradiction in this system. Ordinarily, clients bor4rowing from banks do so on ‘secured’ terms, yet banks ‘borrowing from clients’ do so principally on unsecured terms. This contradiction appears so normal that it does not seem to attract any criticism at all.

A critical analysis of the banking system ought to consider whether banks should be ordered to store money, ‘right-fence’ it or offer security in ordinary course. A system ‘propped-up’ by the taxpayer is simply unsatisfactory. To revert to Patrick Hosking’s article: “In essence, for a fee, the government is guaranteeing RBS against 90 per cent of the losses in excess of the £19.5bn on a gargantuan portfolio of £325bn of problem loans.” Ominously this article reports that RBS’ “…loans and investments are turning sour at the rate of £41m-a-day, even worse than the £26m-a-day deterioration [recently] reported by Barclays”.

A modest attempt in the form of a clamor ex inculta was introduced in the House of Lords in April 2009 by Earl Caithness-the Safety Deposit Current Accounts Bill 2008. This Bill would force all banks and building societies to “…make available safety deposit current accounts” In which legal and equitable title to any money deposited would remain fully vested in the customer. Additionally it would require financial institutions to hold such money “…separately from the general or other assets” held by the debtor bank. Although the Bill failed to obtain parliamentary time in the last session, it is likely to be reintroduced.

Banks must consider offering to store money following the model set out in the accounts rules. This might offer one means of avoiding future economic meltdown, which will result if the system is not effectively reconstructed.

Law Society Gazette

14/05/09

As debate intensifies about solicitor advocacy, Tim Lawson-Cruttenden looks at how judges should deal with advocates of either profession

In recent weeks the standard of solicitor advocacy has been the subject of self-doubt by the profession and high-profile criticism by a circuit judge.

On 16 April 2009, the Solicitors Regulation Authority closed its consultation process about solicitor advocacy. This indicated that the SRA thought that solicitor-advocates should undertake mandatory re-accreditation ever five years. This was worrying for three reasons: first, because the SRA had not assessed the equality and diversity implications, whether formally or informally; second, it openly admitted that it had no evidence to support the proposition that solicitor advocacy might be weaker than barrister advocacy; and third, it appears to have misdirected itself on the fundamental principle of accreditation.

It appears that the SRA may have partially climbed down on its enthusiasm, it seems, to assist the bar. However, the self-doubt expressed in the consultation paper is worrying.

Equally worrying is the misunderstanding of the qualification process. Solicitors are admitted and are entitled to practise so long as they have a practising certificate. If they achieve the requisite standard under the ‘entry-level scheme’ they are entitled to the Higher Courts Qualification. Thus solicitors and solicitor-advocates gain their qualifications and any issue of accreditation or re-accreditation simply does not arise; any policy seeking, retrospectively, to undermine ‘entry-level qualifications’ must be both unlawful and misconceived. It is surprising that the SRA, when publishing its consultation paper, does not appear to have understood the fundamental differences between qualification and accreditation. Unless it addresses this, future considerations of this issue will be erroneous and flawed.

The judicial criticism (see [2009] Gazette, 23 April, 1) will undoubtedly be the subject of much discussion and debate. I cannot comment on the substance of the judge’s complaint. However, I quarrel with the way he did it.

It seems to me that there are three ways in which judges should deal with advocates of either profession. If the error is trifling or not serious, that can be rectified with the advocate there and then (normally in the absence of the jury). If the errors are more serious, the judge can contact the head of chambers/senior partner. If the errors are very serious, then a complaint to the regulator can be made. This is the good practice or judges to follow when concerned about the competence of advocates (whether solicitors or barristers) appearing in their courts. The judge did not invoke any of these procedures. He criticised the advocates without giving them a right of reply. By announcing that his quasi-determination should be widely published, he sought in the views of many, to undermine the profession of solicitor advocacy. Despite all of this, he certified a fair trial.

The Solicitors Association of Higher Court Advocates (SAHCA), which has in the region of 1,200 members, seeks to promote high standards of solicitor advocacy and to assist solicitor-advocates with the conduct of their advocacy practices. We have a developed system of advocacy training, organised by a training officer who is a qualified solicitor. We have a support system for our members through our administrator, who can respond to emails at regular intervals. We are considering including ethics training as part of our programme. In addition, we seek to protect the interests of solicitor-advocates by responding to consultation papers and by making representations where appropriate to the Law Society and to the SRA.

We submitted a detailed response to the SRA’s consultation paper on re-accreditation and at one stage even considered the possibility of judicial review, such was the strength of feeling and the consideration that the profess was subject to fundamental flaws.

We exist to support every solicitor-advocate whether he or she is a member of SAHCA or not, and we have zero tolerance of any ‘solicitor bashing’ of any kind, whether in court or otherwise.

New Law Journal

01/05/09

The banking system has been built on sand for too long, says Tim Lawson-Cruttenden

The G20 conference heralded a new “Dunkirk spirit” in the UK. Only perhaps the British can claim that a massive defeat is a victory. The casualty list is long and includes Northern Rock, Credit Lyonnais, Bear Stearns, Lehman Brothers, AIG Corp, Bradford & Bingley, and Dunfermline. Throw in Iceland and Bernie “Made-Off” and we have some idea of the international scale of this disaster.

We are told that reinforcements in the form of $1.1trn will turn our Dunkirk into a D-Day victory-we even saw President Obama gesticulating “V for Victory” with the reversed middle fingers of his right hand.

Running parallel is, of course, Lord Turner’s review of the banking crisis and his anticipated thesis that the answer is centralisation and regulation of the banking system. The cry is apparently greater liquidity and increased capitalisation. In the interim low interest rates and renewed borrowing thus fuelling “dependency”. However, none of this seems to deal with the fundamental flaws which beset the monetary system.

Monetary supply

One of these flaws lies with the monetary supply which has apparently increased by more than 5,000% over 30 years from about £31bn in 1979 to about £1,700bn now.

The relationship between money supply and value is by no means clear. Currency notes and coins, the responsibility of the UK government, represent about 2.5% of monetary supply with the balance of the 97.5% remaining a seemingly ethereal electronic concept. How much of this money supply is real and how much fictitious? Of the rescuing trillions of dollars how much is actually real?

Everyone who maintains a bank account must, without choice, participate in this flawed monetary system. This, for instance, dictates that current account holders cannot, as a matter of law, remain vested title holders to their credit balances nor rank as secured creditors. It does not seem to be widely known that it is not possible to maintain a current or checking account without title to the money passing to the relevant bank and without the customer forgoing all ordinary rights as a creditor.

The government’s answer to this flawed system is to guarantee accounts, but within limits. Thus the taxpayer has no alternative but to act as guarantor to a banking system which has a low regard for the taxpayer’s current and checking accounts or “heads, the banks win; tails, the taxpayers lose.”

A way forward

A modest attempt to rectify this imbalance is contained in the Safety Deposit Current Account Bill introduced by Lord Caithness in April 2008. This firm drafted the Bill (work predating the Northern Rock crisis in October 2007) which sought to deal simply with three issues concerning current or checking accounts as follows:

• Banks do not “store money” in these accounts.
• Money credited is transferred into the ownership of the bank.
• Bank customers rank ordinarily as unsecured creditors.

The bill’s answer is to make it mandatory for all banks and building societies to “make available safety deposit current accounts” (s1(1)) to their customers. Section 1(2) defines such an account as “a deposit account in which legal and equitable title to any money deposited is fully vested in the customer for whom the money is held”. While s 1(5) requires that money held by the bank must be “(a) kept in the form of cash, and (b) held separately from the general or other assets” held by the debtor bank. The Bill entitles the bank to charge a reasonable storage and service charge for maintaining these accounts, but provides that any government guarantees should be restricted to these accounts.

Consumer choice

This Bill seeks to introduce  a new element of customer choice into a banking sytem which so far has ordinarily refused to accept responsibility for the storage of money in current or checking accounts.

Although the Bill failed to obtain Parliamentary time in the last session it is likely to be introduced shortly, and it is suggested that it represents a modest answer to a question that needs to be identified and debated. It is perhaps surprising that there appears to be so much ignorance and misunderstanding on the law concerning the operation of current and checking accounts. The fact that creditor customers are unsecured does not appear to be either widely understood or widely known. Surely we need to reconstruct the foundations and not just tinker with the structure?

SolicitorsJournal.com

07/04/09

The ideas behind the SRA’s consultation on mandatory re-accreditation for solicitors advocates are under-developed, discriminatory and based on worthless evidence, says Tim Lawson-Cruttenden

In January 2009 the Solicitors’ Regulation Authority issued a consultation paper on solicitor advocacy. This clearly recommends that solicitor advocates undertake mandatory re-accreditation every five years. However, the SRA’s proposals are misconceived.

The consultation makes it clear that: “The SRA Board favours an approach based on mandatory re-accreditation of all holders of the qualification every five years.”

Nevertheless, three options are canvassed as follows: Option 1: Obligatory re-accreditation every five years; Option 2: Mandatory re-accreditation targeted at ‘certain areas of weakness’; and Option 3: No re-accreditation at all.

Misconceptions

It is obvious that the SRA favours Option 1, though the rationale behind this is by no means clear. A statement that “…there has been a perception that the quality of advocacy…is not as good as that of their barrister counterparts”, is immediately followed by a surprising admission that “there is no empirical evidence to support this” (consultation, page 4, para.5).

Nonetheless, the SRA maintains that blanket mandatory re-accreditation will “enhance the reputation of solicitor advocates” (consultation, page 5, para.2), yet it offers no explanation to support this proposition.

Surprisingly, the SRA does not appear to have conducted a comprehensive Equality and Diversity Impact Assessment in relation to these options. Instead, consultees are merely invited to answer the question: “Do you think there are any equality and diversity implications with all or any of these options?” (consultation, page 8, para.1).

The Solicitors’ Association of Higher Court Advocates (SAHCA) believes this is likely to devalue and “flaw” the consultation process.

SAHCA favours option 3 on grounds that, in the absence of any evidence to the contrary, any scheme of re-accreditation is both unjustified and unnecessary.

Accreditation and training schemes for solicitor advocates already exist. In addition to those conducted by SAHCA, the CPS is developing its own system of training and accreditation and it is likely that CPS advocates would not be governed by any SRA scheme. The Legal Services Commission and the Ministry of Justice are jointly piloting a prospective Quality Assurance for Advocates (QAA) scheme which is likely to govern “publicly funded” advocacy in the criminal courts. Thus these two schemes alone are likely to address any difficulties which could exist in the criminal jurisdiction.

In the light of these schemes, still in their infancy, the SRA’s consultation is premature.

Disagreement

SAHCA disagrees with options 1 and 2 on a number of grounds.

First, options 1 and 2 do not address any identified problems. SAHCA contests the SRA’s proposal on the grounds that this singularly fails to address and focus on any difficulties because these simply have not been identified.

Secondly, any skills attrition seemingly identified by the SRA is negligible. The SRA claims that such a system would ensure that solicitor advocates, who have perhaps not practiced in court for an extended period of time, might refresh their skills rather than lose them. This is based on the assumption, expressed as “literature in other fields” (what does this mean?) that such skills devalue over time if undeveloped. Reference is made to a study into American medical surgical malpractice But is the medical model really applicable to the practice of advocacy?

Thirdly, the scheme will be costly and will discriminate, for example, against BMEs and women returning from maternity or extended leave. The costs of any such scheme would be “prohibitively expensive for solicitor advocates who come within the category black, minority ethnic (BME)”. Much in the same way, women returning from maternity leave would also suffer disproportionately. Eventually solicitor advocates would “mainly be white, middle-aged males from large firms who can afford the fees and the time away from their practice”.

Fourthly, a re-accreditation scheme will not bolster client confidence. Far from “providing the public and clients with confidence in the standard of solicitor higher courts advocates” (consultation, page 2, para.2), having to be re-accredited every fiver years would present the profession as unstable. Any “client confidence” in solicitor advocates would hardly be sustained by constant re-accreditation, as the SRA implies.

Finally, as there is no mandatory re-accreditation for barristers, the SAHCA feels that the scheme is discriminatory in favour of the Bar and against solicitor advocates.

Worthless evidence

Ultimately the SRA’s proposals are based on anecdotal evidence, which is worthless. The SRA’s failure to carry out an Equality and Diversity Impact Assessment is arguably unlawful and potentially misleading. As a result, this consultation can perhaps be described as yet another classic example of unnecessary interference, i.e. “nisi infractus, noli reficere”.

The Guardian

14/01/09

The law protects potential victims of threatening or violent direct action, says Tim Lawson-Cruttenden

I don’t think George Monbiot really understands the Protection from Harassment Act 1997 and (what matters much less) my own role in its framing and use (Otterspotting and birdwatching: the dark heart of the co-terrorist peril, 23 December 2008).

It is indeed true that the high court has used the act to grant injunctions which constrain certain forms of protest. But this does not remotely make it right for Monbiot to say “it was used to stop peaceful protest”. The high court has granted injunctions – and framed the particulars of those injunctions – to stop protesters deploying harassment in their cause. True, as Monbiot says, the test of a person’s being harassed is in some sense subjective and the standards of proof are civil, not criminal. But that is only to say that one has to persuade a judge that one feels seriously harassed, and that the harasser has been identified properly.

I don’t suppose I can readily satisfy Monbiot that the high court is not a soft touch in these cases. The many injunctions my clients have been granted were awarded by judges who were always scrupulous in preserving the civil liberties of protesters as well as their targets. So far as I can see, most of the harassment injunctions have been relatively uncontroversial, even though they are sometimes misrepresented by writers and campaigners and are not popular with the more forceful end of the protest world.

It is true that the Harassment Act produces a civil injunction which carries a criminal charge and penalty for those who break its terms. As such it “criminalises” some protest – that is, unlawful protest which would interfere with other people’s freedoms too greatly. About time too, say the many victims of threatening, vicious or violent direct action.

It is worth clearing up Monbiot’s misconception about the purposes of the act and my role in it. He says parliament was “duped” by the bill’s supporters, and implies that I knew all along that the act implies that the act would be used in protest context.

It happens that I was most closely involved in co-drafting a rather narrow stalking bill, which failed, to my chagrin. That bill morphed – mostly in other hands – into the Harassment Act. I was proud to help the then Labour opposition work on that new bill, which parliament made rather wider than I had expected or encouraged. The result is that it does not tackle stalking quite as I’d like.

I am, however, conscious of the contribution made, on the government’s side, by Evonne Powell-Von Heussen (Those behind the harassment law did not want to stifle protest, 7 January) and of course I am aware that her sterling work was carried out without the benefit of formal legal training. It also turns out that the Harassment Act has worked extremely well in striking a very difficult balance. I am almost sorry that I cannot claim paternity for those aspects of the act which Monbiot most dislikes. I have a feeling that I could never get him to agree with me – or the high court – as to where the limits to proper protest lie. I hope he will accept that I am rather more of a libertarian that his caricature supposes.