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Archive for November, 2012

http://www.insitelawmagazine.com/images/iaingouldWas Christopher Jeffries wrongfully arrested?
By Iain Gould, Solicitor and Partner at David Phillips & Partners

Christopher Jeffries, the man wrongfully accused of the murder of Joanna Yeates in Bristol in December 2010, is back in the news this week as the fall-out from the Leveson enquiry continues.

Lord Justice Leveson’s report, published yesterday, confirms that Mr. Jeffries is pursuing a civil compensation claim against the police (Avon and Somerset Constabulary) for ‘false imprisonment, breach of human rights, and trespass to person and property’ (see point 3 of his statement from his submissions to the Leveson enquiry by clicking here).

He has already received compensation from eight newspapers for libel following his ‘vilification’ (to quote Lord Chief Justice Judge) in the national media, who referred to him as a ‘peeping tom’ and ‘nutty professor’, among other things.

It appears that the press paid out relatively quickly. However, his claim for compensation against the police continues, almost two years later. Why? As a solicitor who specialises in actions against the police and routinely deals with claims which, like Mr. Jeffries’ case, involve wrongful arrest and the resulting false imprisonment, I have some insight which may assist.

What is Mr. Jeffries’ case?
Mr. Jeffries’ claim will be based on the notion that his arrest was unlawful as it was not founded on a reasonable suspicion that he committed an arrestable offence, or some other lawful authority.

As a consequence, he will argue, for every minute of the three days he was detained he was subject to false imprisonment.

As a result, Mr. Jeffries may claim that he is entitled to compensation for injury, distress, discomfort and inconvenience, loss of liberty and damage. In addition, he will no doubt claim aggravated damages (for the additional humiliation and suffering caused), as well as exemplary damages (for the arbitrary, oppressive and unconstitutional conduct perpetrated by the police).

Why is it taking so long?
According to The Observer’s report on 24 November 2012, Mr. Jeffries’ civil claim against the police is not yet settled. It is nearly two years since his arrest. The police will surely have concluded their investigations and stated their position on liability. The fact that the claim has not settled out of court is telling.

I expect that the police have denied liability and argued that the arresting officer had a reasonable suspicion to justify the arrest ‘to allow the prompt and effective investigation of the offence or of the conduct of the person in question’ (s.24(5)(e) Police and Criminal Evidence Act 1984 (PACE)).

‘Reasonable suspicion’ involves a two pronged test and is governed by s.24 PACE (as amended by the Serious Organised Crime and Police Act 2005).

The first part is a subjective test: it is for the arresting officer to verify that he or she had an honest suspicion that the arrested person committed the offence.

The second part is an objective test: did the arresting officer hold that suspicion on reasonable grounds? If so, do his/ her reasons for arrest amount to a reasonable belief that the arrest is necessary, and did they give grounds for arrest as soon as reasonably practicable?

If the police can satisfy the court that both tests were met then the arrest was lawful and Mr. Jeffries’ claim for that head of damages would fail (although other claims could still be made for, say, excessive detention, breach of Human Rights etc.).
Proving ‘reasonable suspicion’

For Mr. Jeffries to prove his claim for wrongful arrest and false imprisonment it is essential that he satisfies the court that the arresting officer did not have reasonable suspicion to arrest him.

Lord Devlin in Hussein v Chong Fook Kam (1970) defined it by saying:
‘suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking; ‘I suspect but I cannot prove’…suspicion can take into account matters that could not be put in evidence at all.’

So, while a ‘hunch’ may not be enough, the test to be met is far lower than legal proof.

It is irrelevant as to whether the person arrested actually committed the offence. Even if the officer is completely mistaken, and the person arrested is wholly innocent, providing the officer can satisfy the two-part test above, the arrest will be lawful.

Proving Mr. Jeffries’ compensation claim against the police
Will the police accept that, on balance, Mr. Jeffries was wrongfully arrested and agree to settle his claim? Or will he have to take court proceedings and go to trial? Time will tell.

Mr. Jeffries is innocent.  He suffered greatly due to another man’s deplorable acts and has rightly received compensation for libel. My heartfelt sympathies go to him.

However, being innocent and receiving compensation for what was written about him in newspapers does not automatically mean that he has also a claim for wrongful arrest/ false imprisonment.

There are complicated issues of law and fact to be considered and, as I have explained above in considering the issue of reasonable suspicion, the police have to satisfy a very low threshold in order to justify the arrest, avoid paying any compensation, and being on the receiving end of more negative publicity.

In my experience most actions against the police are fiercely contested by the police’s legal teams. The fact that such a high profile individual as Christopher Jeffries is still fighting nearly two years on shows how difficult such cases are to pursue.

These cases are difficult, but not impossible. I have successfully argued on numerous occasions that the police wrongfully arrested my clients when the circumstances were equally challenging.

If Mr. Jeffries can prove his claim, he ought to receive a sense that justice has been done. For many of my clients, that makes the hard fight worthwhile. No doubt Mr. Jeffries would say the same.

Iain Gould is a solicitor who specialises in actions against the police.

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Without Prejudice lawcast: The Leveson Report with Carl Gardner, Jez Hindmarsh and David Allen Green

The BBC reports:

Would:

  • Create a process to “validate” the independence and effectiveness of the new self-regulation body
  • Validate a new process of independent arbitration for complainants – which would benefit both the public and publishers by providing speedy resolutions
  • Place a duty on government to protect the freedom of press

Would not:

  • Establish a body to regulate the press directly
  • Give any Parliament or government rights to interfere with what newspapers publish

Listen to the podcast

iTunesversion

Our thanks to Gray’s Inn for hosting the recording.

***

Useful resources

On Leveson, David David Allen Green
Carl Gardner on Leveson
The Guardian essential guide
and INFORRM’s
The MST:
HackedOff:
The FSN:

The Leveson Report

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Social media, particularly Facebook and Twitter,  is being widely used now and it is not without dangers. The recent Lord McAlpine libel litigation, cyber-stalking, tweets which break the contempt of court laws –  all have a ‘chilling’ effect on ‘free speech’.  Employers are increasingly turning to Twitter and Facebook to check out future employees and to monitor the behaviour of current employees.

Today, I am talking with Sean Jones QC of 11 KBW, a leading employment and public law set. We look at the employment law implications for use of social media in some depth and discuss the important case of Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch)

We then move on to discuss practice at the Bar, the immediate to medium term prospects for barristers and Sean Jones QC provides some advice for prospective barristers.

Listen to the podcast

iTunes version of the podcast

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Whiplash – what actually is it?
UK Claim Lawyers

Think of injury claims and you might imagine someone in a neck brace. Why? Because one of the most common injuries from road accidents is whiplash; the neck injury that often requires the victim to wear a neck brace.

But what actually is whiplash? Whiplash is in fact a term that covers a number of specific injuries to the neck which are caused by a sudden extension. This is why it’s a common injury to be sustained from a road accident – the jolt of a rear, front or side collision will cause a very sudden movement in the neck muscles and ligaments. This movement stretches the ligaments (the joints between the bones) and the tendons (the joints between the muscles and bones) and can leave them sprained and sore. Sufferers will experience pain when moving their neck, and stiffness and muscle spasms can last for a considerable time.

Whiplash may take a couple of hours or even a day to develop, so if you have been involved in a car crash or an accident but don’t notice anything straight away, you may still be at risk of developing whiplash symptoms. In fact, the majority of sufferers only develop pain the day after an accident.

So what should you do if you suspect you have whiplash as a result of a car collision? Firstly you must seek the attention of a medical professional who will be able to tell you if you have suffered whiplash. They can check if there is any damage to the bones or spine and make sure you are not suffering from concussion. If whiplash is diagnose, you may then be advised to wear a neck brace for support, but it is not always essential as you will usually be told to keep your neck active and moving to stop it seizing up. Also, be careful not to wear a neck brace for too long as they can actually cause the muscles in your neck to weaken.

If you are suffering from swelling and pain in your neck you can apply ice every three to four hours to help reduce any inflammation. You can also take painkillers such as paracetemol and ibuprofen but always double check what medication you can take with your doctor.

Finally, if your whiplash was the result of someone else’s recklessness you can claim road accident compensation which will hopefully help to ease the pain somewhat too. To enquire about car accident compensation contact UK Claim Lawyers, the expert personal injury solicitors based across the UK.

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Governments Quest to Lowering Energy Prices
By Denver

The government has announced that it will be legislating to ensure that all energy suppliers are giving their customers the best possible prices, in a committed bid to drive the cost of energy prices down.

David Cameron’s announcement has come on the back of several energy company announcements that their prices would be rising in the run-up to winter. These companies include Scottish Power, who announced that their prices will be rising by 8.7%, British Gas who are rising their utility prices by 6% and Npower who will be following suit, at 8.8%. These announcements follow hot on the heels of SSE, who already announced their increase in prices by 9%, in August.

Only E.ON and EDF have not yet announced price rises, although the former is maintaining a prize freeze until January.

Legislation is now necessary.

The Prime Minister told Parliament that utility companies must be forced to provide customers with their lowest tariffs. This new law will be incorporated into a new Energy Bill, which is due to be presented by December 2012. A government spokesman added that the government intended to communicate the details out further and explain how the law would be put into effective, but reiterated that the objective of the new legislation was clear.

Consumer groups concern.

However, some consumer groups are worried that changes to legislation might endanger competition and eventually disadvantage those who are already at the whim of rocketing domestic and business electric prices.

They pointed to the long term market failure, where successive government regimes have attempted – and largely failed – to encourage competition in the energy market to drive forward better market conditions for energy customers. Nick Clegg’s policy of forcing energy providers to contact their customers annually to highlight their best tariffs, was one such example.

The consumer groups are keen to encourage customers to be keenly aware of their rights in the energy sphere, where awareness may need improving. Many customers are unaware of where they can obtain help and what their rights are when dealing with energy providers. For example, if a customer has a 2 hour slot to get a meter reading taken and the supplier misses the slot, they can claim compensation from that supplier – from 22 for electricity and  20 for gas. Power cuts that last for 18 hours or above are also eligible for compensation of up to 54.

Which? and other consumer groups have since rallied together to help customers and created a guide to energy rights, which is entitled ‘staying connected’.

Meanwhile, market analysts, consumers and rights groups alike hope to see positive changes in the energy market soon, to help benefit the UK economy and divert valuable income away from fixed bills and back onto the high street, where it can be used to bolster British businesses and help to get the economy back up and running. There are also concerns that rising energy prices will drive up inflation, which is an additional worry for those hoping for a stronger British economy in 2013 and beyond.

Written on behalf a renewable energy management and solutions company, they look to help lower and identify improved contracts through alternative approaches. Click here for further information.

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Avoiding Extinction: Reimagining Legal Services

“The past few years have seen incredible innovation and growth in the way legal services can be delivered–yet most law firms around the world continue to practice law the way it’s been practiced for centuries, namely, as a labor-intensive endeavor carried out by high-priced lawyers billing by the hour.”

I’m talking with Toronto lawyer Mitchell Kowalski the author of Avoiding Extinction: Reimagining Legal Services. Avoiding Extinction makes the case for how the law firm of the future will succeed, with a laser-like focus on delivering high-quality legal services better, faster, and cheaper. This entertaining and instructive book is a must-read for anyone seeking a creative vision into what a new, truly different law firm could look like.

The podcast:

Your book – why did you choose the fictional law firm Bowen Fong and Chandri PC – the medium of a novel – for your book?

A utopian construct or capable of practical reality?

The billable hour v  value billing debate

Comparison with UK – UK firms Lawyers on Demand and Riverview Law?

Five key propositions for delivering legal services you regard as the most innovative and important

* Billing
* Knowledge Management
* The People at the top set the tune for the middle
* Legal process outsourcing – the more money you save, the more money you earn
* Project management – if you can’t map out all the processes you are doing  you cannot value and price it.

Listen to the podcast

iTunesversion of the podcast

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Report #11: An interview with Toby Craig, Head of Communications, The Bar Council

The Bar Council represents the interests of all barristers in England & Wales – the regulatory function being carried out by the independent Bar Standards Board.

Facing significant change in the way legal services are delivered in the wake of the Legal Services Act , increasing competition from solicitor-advocates and a government now cutting back on the provision of legal aid, proposing to restrict judicial review and pushing through legislation on secret trials – the role of the Bar Council in the legal profession is a very important one.

Last Sunday I did a podcast with John Cooper QC on the controversial issue of referral fees. Toby Craig, head of communications for The Bar Council contacted me soon after I published this podcast to ask if I would be prepared to do a podcast with him to enable The Bar Council to put their view.

The discussion with Toby Craig covered a number of controversial issues which members of the Bar have expressed concern to me about.

In this podcast we look at:

1. The Role of The Bar Council

2. The relationship of The Bar Council with government

3. The potential conflict of interest in relation to the Attorney-general who is the head of the Bar

4. Michael Turner QC’s robust criticisms published in The Daily Mirror: Injustice for all: Leading QC on why legal aid cuts and change in regulation is bad news for Britain

5. How democratic is the Bar Council and the controversy during the  recent  Criminal Bar Association elections

6. Criticism of The Bar Council raised in a report commissioned in 2011

7. Referral fees – the Bar stance is that referral fees are a breach of the Code of Practice and will also give rise to civil and criminal liability – issues raised by Nicholas Lavender QC in June 2012. I ask Toby Craig what steps the Bar Council is taking to survey Chambers that may have paid or are currently engaged in paying referral fees to bring in work.

8. Social media and diversity at the Bar

The podcast raises important issues of representation and professional ethics and I welcome comment and discussion from members of the Bar and others with an interest.

Listen to the podcast

iTunes version of the podcast

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