Weekly Notes: legal news from ICLR – 8 April 2016

Posted on 8th Apr 2016 in Weekly Notes

This week’s roundup of legal news and comment includes an embarrassing Panamanian data leak, guidance on intellectual property, some views on judicial diversity and a collection of good and bad developments overseas. And after last week’s folly, it’s all perfectly serious.

Panama: a question of trust(s)

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Panama – Keep it under your hat! (No need to make heavy weather of it.)

Here’s how it began (according to Süddeutsche Zeitung): 

Over a year ago, an anonymous source contacted the Süddeutsche Zeitung (SZ) and submitted encrypted internal documents from Mossack Fonseca, a Panamanian law firm that sells anonymous offshore companies around the world. These shell companies enable their owners to cover up their business dealings, no matter how shady.
In the months that followed, the number of documents continued to grow far beyond the original leak. Ultimately, SZ acquired about 2.6 terabytes of data, making the leak the biggest that journalists had ever worked with.”

The job was too big for any one paper to handle, it seems. So SZ sought to assistance of the International Consortium of Investigative Journalists (ICIJ). The story became a global project.  

In the past 12 months, around 400 journalists from more than 100 media organizations in over 80 countries have taken part in researching the documents. These have included teams from the Guardian and the BBC in England, Le Monde in France, and La Nación in Argentina.”

You can read the ICIJ’s take on this here: Giant Leak of Offshore Financial Records Exposes Global Array of Crime and Corruption

When the story broke, it was like a volcano followed by a tsunami. As Paul Lashmar explains in The Conversation (Panama Papers: remarkable global media operation holds rich and powerful to account): 

“With the Panama Papers exposé perhaps we can now say the fortress walls of offshore secrecy are finally cracking. …
Western politicians have huffed and puffed about clamping down on offshore havens but in reality their collective breath would not have knocked over a little piggie’s straw house let alone bastions of vested interest. It is thanks to investigative reporters, whistleblowers and unprecedented international media collaboration that the matter is being forced.”

In the UK, the leak’s (or burst pipe’s) most prominent victim was David Cameron, the Prime Minister, whose own father appears to have set up an offshore trust of the sort involved, from which his son seems not to have been able to say how he may have benefited, albeit perhaps only in the past. In a series of statements, Cameron appeared to perform a dance of the seven, or at any rate four, veils. Maybe there are more veils to come.

The reason for his anguish is that offshore trusts and shellcos are often used to facilitate not just tax planning, which may involve avoiding the payment of tax within existing rules, but also fraudulently evading tax. Moreover, in the case of some of those whose names were disclosed in the leak, there were suggestions of other misconduct, such as money laundering. 

To explain the difference between avoidance and evasion, here is Jolyon Maugham QC on his Waiting for Godot (musings on tax) blog, Some Thoughts on the Panama Papers.

Another issue which did not receive quite so much prominence at first was the question of the client-attorney privilege, or legal professional privilege as we call it over here, of the customers of Mossack Fonseca, the law firm in Panama at the centre of the storm. The firm itself was hot to declare the leak, or hack, a criminal act and a gross breach of its clients’ confidence, which might be true up to a point.

David Allen Green in his FT blog (The Panama Papers: public interest disclosure v the right to private legal advice) provided a useful counterbalance to some of the triumphalism of those who, while eager to harp on about the notion of privacy and confidentiality when it comes to government interference, seemed quite delighted by the idea of its trashing in the cause of taxpayer transparency and the exposure of iniquity. In the context of the public interest in exposure, were concerns about privacy and confidentiality “mere fusspottery and point-missing?”

“All sorts of people have the protection of legal professional privilege. Whistleblowers and hackers have legal professional privilege, as do journalists and editors. All the media organisations involved in the publication of the Panama Papers have legal professional privilege for the (doubtless) extensive legal advice they have received in how best to publish the content of the leaked legal documents.
But such privilege is not just for the Good Guys. If it is a “fundamental” or “absolute” right then, sadly, it has to be there for the Bad Guys too. It is not a pick-and-mix entitlement. If the journalists and media organisations who published the Panama Papers have a basic right to private and confidential legal advice then why don’t the clients of Mossack Fonseca?”

Paul Bernal, an expert on privacy and human rights, also discussed the conflict between privacy and the public interest in exposure of wrongdoing and abuse of power, in a post entitled Panama, privacy and power… in which he questioned whether the financial affairs of those in office should enjoy the privacy and confidentiality which in this country they do – unlike, say, Norway. But the case also highlighted the vulnerability of confidential data and the need for those who promoted the Investigatory Powers Bill to rethink their views on the mass collection of data and the value of encryption.

UPDATE:

  • For more commentary on the legal professional privilege angle and the significance of the Panama data leak on the question of setting aside court orders on grounds of fraudulent non-disclosure of assets etc, see David Burrows, in Family Law,  Panama papers: advice privilege and Sharland set aside. (David will also be writing a post on this blog in relation to LPP and the iniquity exception, so watch this space.)
  • David Allen Green, in a second post in the Financial Times, Leaks and liberty: policy and legal consequences of unauthorised big data releases  discusses the implications of big data leaks such as the Panama one on long term policy towards data security, not just for government and business but for citizens too.

 

Intellectual Property

Patents Guidance

The Intellectual Property Office (IPO) have issued a raft of new guidance including one on patents with the catchy title: Examination Guidelines for Patent Applications relating to Biotechnological Inventions in the Intellectual Property Office.
This edition of the Guidelines is an update of the Guidelines published in November 2013. (All significant amendments are indicated by side lines.) For some reason all the quotations are in prominent blue boxes which is rather distracting, but perhaps that is house style?

 

Trade Marks manual updated

The IPO has issued a new edition of the Manual of Trade Mark Practice, first published in 2009. At nearly 500 pages it’s pretty massive and, presumably, comprehensive.

 

Copyright guidance

The IPO has also issued guidance aimed squarely at the ordinary (or possibly rather dim) member of the public who might receive a letter alleging online copyright infringement. Written in simplistic and often ungrammatical language, it says:

You may have received a letter if the copyright owner believes someone has used your internet connection to download copyright protected material, such as a film. If the material was downloaded without their permission, for example, from a file sharing website. Rights holders may seek compensation for the financial loss they have suffered. …

When files are downloaded from common file sharing services, such as those relying on the BitTorrent protocol. The IP addresses of all users currently sharing the file are visible.

 

Having explained how and why you might have got a copyright infringement claim letter, the guidance then goes on to explain what steps to take to check whether the claim is genuine and whether you or a member of your family might be liable. But I am not quite sure how anyone receiving such a letter will find this piece of advice on what to do about it. The chances of anyone finding it on the IPO website using a search are pretty low. It would make more sense for it to be circulated via ISPs to their customers, perhaps with their bills, or by email. (Perhaps this has been or will be done.)

Perhaps ISPs are managing the guidance themselves. Virginmedia, for example, have this sample letter (re music copyright infringement). 

But I couldn’t actually find the help guidance relating to the letter, just the letter itself, on my search, which is a bit frustrating.

 

Judiciary

Diversity through ODR

Felicity Gerry QC, of 36 Bedford Row chambers, suggested in The Times Law Brief newsletter, on Monday 4 April, that an incidental advantage of appointing judges to the new online dispute resolution court would be an increase in judicial diversity: 

If online dispute resolution takes root, then it could trigger positive action on diversity to ensure that those appointed to online courts are representative of wider society, as well as legally qualified.

We currently have a white male elite judiciary in a world grappling with gender inequality. This needs to change as the delivery of justice needs to change.
Technology is the way forward, but it ought not to be seen as a way forward without the protection that lawyers provide from injustice – and it can be achieved by the even more radical notion of quotas relating to gender, ethnicity and sexual orientation for online judges. Perhaps what online dispute resolution – or ODR – could really stand for is an opportunity for diversity reconstruction.”

As to the experience of diversity or the lack of it in recent times, Legal Cheek carried a video recently showing what it described as Britain’s first black female High Court judge opens up about racism at the bar.

 

Parish notices

Liberty: new director

We’d like to add our voice to the many who have congratulated barrister Martha Spurrier on her appointment as the new director of Liberty, the campaigning org for civil liberties and human rights. According to the announcement, Martha, who is from Doughty St chambers,

“comes to Liberty with an exceptional track record in defending people’s rights, raising awareness of threats to fundamental freedoms and holding the state to account for neglect, abuse and mistreatment.”

Meanwhile her illustrious outgoing predecessor, Shami Chakrabarti, has joined 39 Essex Chambers as a door tenant. Whether this means she will eventually be returning to practice is unclear, and when interviewed by Joshua Rozenberg for a recent edition of Law in Action, Shami was cagey about a new role which she thought might be in the offing but was not sufficiently firmed up to discuss. That suggests something more significant and public facing than begging the clerks at 39 Essex for a juicy brief or two from time to time.

 

Middle Temple Members’ Lounge Opening

Middle Temple is marking the opening of Tasker’s, its new Members’ Lounge, with a special evening launch event at 6pm on Thursday 21 April. Free to members but please register first with Oliver Muncey at o.muncey@middletemple.org.uk.

The new lounge is named after the former Lord Justice and deputy Lord Chief Justice, the late Sir Tasker Watkins VC GBE. According to the announcement,

“Tasker’s has been designed to offer members a stylish modern and relaxed environment to work and play. The bar area will be open on Thursdays and Fridays between 18:00 and 21:00. The lounge will be open on weekdays between 09:00 and 20:00 and once a month on Saturdays between 09.00 and 17.00, as per the Library weekend rota.

Positions vacant: Centre for Criminal Appeals

The CCA is looking for Managing Director / Casework Lawyer, £36k to 42k pA.

Law (and injustice) from around the world

Azerbaijan

Rights lawyer released

The Supreme Court recently ordered the release of Azerbaijan’s leading human rights lawyer, Intigam Aliyev.

On 28 March Azerbaijan’s top court converted his seven-and-a-half year prison sentence to a five-year suspended term, arising out of his conviction before the so-called Grave Crimes Court in Baku in April last year on what Human Rights Watch called “politically motivated charges of tax evasion, illegal business activities, embezzlement, and abuse of authority”.

However, while a number of other human rights lawyers and activists have recently been released or pardoned by the authorities, there remain a large number still in captivity or threatened, according to HRW, which has been urging Azerbaijan’s international partners to do more to press for their release.  

 

Dubai

Enforcement of judgments ruling

The effect of a recent decision of the Court of Appeal of the Dubai International Financial Centre appears to be that a foreign money judgment can, following a judgment of the DIFC courts, be enforced in Dubai against assets in Dubai as a local judgment. The DIFC is a separate jurisdiction (applying mainly English common law) but its laws enable some crossover with local Dubai courts, which apply local law. However, to enforce a foreign judgment in the local Dubai jurisdiction seems to require (or to be a lot easier using) an intermediate step of getting an order from the DIFC court of first instance, or failing that, Court of Appeal. It’s all explained with more knowledge and panache by Damian Crosse and Christopher Young of Pinsent Masons, in this post on the Practical Law Construction Blog.

 

France

New law bans paying for sex

According to Huffington Post, France has passed a new law making it illegal to pay prostitutes for sex, but decriminalising the act of prostitution itself. The new measure does away with a 2003 law that banned passive soliciting by sex workers on the street. But those who buy sex will be punished with fines and “compelled to attend classes to learn about the harmful effects prostitution has on sex workers”. For sex workers, there will be money available (possibly from the fines?) to pay for re-employment schemes enabling them to earn their living in a different walk of life.

See also: Philly.com France passes law which punishes prostitutes’ clients

 

Kazakhstan

EU project to enhance criminal justice

he British ambassador to Kazakhstan, Dr Carolyn Browne, today delivered in three languages, Kazakh, Russian and English, a brief speech launching an EU project “Enhancing Criminal Justice in Kazakhstan”.

It follows an agreement, last December, between the EU and Kazakhstan to deepen their relationship further. Implementation is taking place through a consortium of organizations led by the British NGO Northern Ireland Co-operation Overseas (NICO).

The project covers a wide range of criminal justice issues. Implementation of new legislation, establishing a full probation system, and delivering training are some of the activities through which Kazakhstan will benefit from this project.

 

Saudi Arabia

New insolvency law

Although we tend to dedicate a lot of heated indignation towards Saudi’s poor human rights record and the British government’s either supine or cynically commercial attempts to monetize a special relationship with the Saudi regime, the fact remains that in other areas the law carries on and may be allowed to shine. Last month DLA Piper, the international solicitors firm, reported on reforms in Saudi commercial law, including a proposed new insolvency law and a new commercial pledge law. Here’s the announcement. And here’s the complete PDF.

[Slight disappointment upon seeing a prominent image of a gavel on page 5 in this document. We don’t use them here – do they use them in Saudi Arabia? (It’s tempting to be facetious and look for a use in relation to corporal punishment.) ]

 

United States

OJ Simpson retrial continues

Correction! Not a retrial. It’s a remake of the original trial. And oh boy, what a saga! Yet still it continues.

Some quite famous actors have been engaged to reconstruct a trial that was at the time a prodigy and extravagance of court TV. The events are dramatic enough, but in this remake they seem to be played in an odd mixture of melodrama and low-key seriousness. Given the celebrity of the case involved, you’d think they could produce a better result (though obviously not a different one!) Maybe I’m jaundiced, but the actors in some cases are not even phoning in their performances, but appear to be acting under protest, as though in response to a subpoena. (I’d say cut to the chase but we already had that in the first episode.)

 

That’s it for now. My thanks to all who led me to stories, mostly my followees on Twitter.

This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter @TheICLR.