A Lawyer Speaks

This is a free preview of a paid episode. To hear more, visit rozenberg.substack.comIn a judgment published last Thursday, a circuit judge sitting in Walsall explained that he was referring two solicitors to their regulator because false AI-generated case citations had been submitted in an appeal he was hearing.“Lawyers who cite fictitious cases must face serious consequences,” said Judge Grimshaw, “and in the current environment, where this is a problem that is significant (and indeed seems to be growing), the guidance in Ayinde indicates that judges should take a robust approach.”Mahmood Hussain, a consultant at AML Legal in Dudley, had acknowledged that documents citing false judgments had been prepared with the help of a paralegal. The judge observed that an appeal bundle and a covering email had apparently been signed by Kossar Qureshi, the firm’s director.It’s a cautionary tale for solicitors. But the perils of using artificial intelligence may be even greater for barristers. To help them balance risks and rewards, their regulator will be launching new guidance later today. Strikingly, it encourages members of the bar to take a risk-based approach when using new technology.To set the scene, I’ve been discussing the new guidance with the Bar Standards Board’s director of strategy, policy and insights, Ewen MacLeod (pictured), on the latest episode of A Lawyer Talks.My weekly podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol on the graphic at the top of this page.

This is a free preview of a paid episode. To hear more, visit rozenberg.substack.comThe international legal order is facing profound disruption, a leading lawyer said last night. Professor Lord Verdirame KC said that institutions created or expanded after the end of the Cold War in 1989 had “too often responded with misguided moralistic fervour and interpretative maximalism, stretching mandates beyond what states consented to and thereby inviting the backlash that now jeopardises their legitimacy and survival”.Verdirame, a practising barrister, professor of international law and non-affiliated peer, was delivering a lecture to the Society of Conservative Lawyers in memory of its long-serving member and honorary secretary Pamela Thomas. The society will be publishing his lecture in due course.In an interview yesterday for A Lawyer Talks, Verdirame discussed the pivotal role of the United States and the current limitations of international law. “The international legal order is not falling apart,” he said. But it was now in crisis.My weekly podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol on the graphic at the top of this page.

This is a free preview of a paid episode. To hear more, visit rozenberg.substack.comA former chair of the bar has called for a wide-ranging review of the way that expert evidence is used in the courts of England and Wales. Speaking to one of the City of London livery companies just before Easter, Sam Townend KC said the use of experts had led to “something of a crisis in judicial and public confidence”. He told the Worshipful Company of Arbitrators that the development of the professional expert witness in recent years challenged the principle that such evidence should be independent. As examples, he referred to the trial of Lucy Letby and the use of psychologists in family cases where so-called “parental alienation” has been alleged.Townend’s lecture will be published later in the summer. In the meantime, he has been speaking about his concerns in the latest episode of A Lawyer Talks.My regular podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol on the graphic at the top of this page.

This is a free preview of a paid episode. To hear more, visit rozenberg.substack.comNew sentencing laws take effect next week. Judges and magistrates in England and Wales will be able to suspend sentences of up to three years. And courts will have to suspend sentences of not more than 12 months unless there are “exceptional circumstances”.Because very short sentences are generally thought to be counter-productive, supporters of the reforms say we should all be safer as a result. And, at least to begin with, the prison population should begin to come down. But Andrea Coomber KC (hon), chief executive of the Howard League for Penal Reform (pictured), told me there were provisions in the Sentencing Act 2026 that may endanger the very people they are intended to protect. And Baroness Carr, the lady chief justice, made it clear that other provisions in the legislation could be used to undermine the important role played by sentencing guidelines.You can read about Carr’s concerns in my column for this week’s Law Society Gazette.And you can hear Coomber’s criticisms in the latest episode of A Lawyer Talks. My weekly podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol on the graphic at the top of this page.

This is a free preview of a paid episode. To hear more, visit rozenberg.substack.com“Any decision about the care and treatment of a mentally incapacitated adult, including the withdrawal of life-sustaining treatment, must be taken in the patient’s best interests,” the Court of Appeal said on Tuesday. “There is no carve-out for ‘clinical decisions’,” the court added, overruling a decision by a highly experienced Court of Protection judge.That conclusion is so broad that it cannot possibly be correct, a leading lawyer in the field of health and social care told me yesterday. Victoria Butler-Cole KC said the ruling means that practical advice issued by the British Medical Association to assist doctors when making decisions in the best interests of incapacitated adults is now wrong. She thought the ruling would cause widespread difficulties and should now be considered by the Supreme Court with the benefit of more time and full legal argument.The one person who won’t benefit from any further appeal is the man at the heart of this tragic story. Robert Barnor, 68, suffered extensive and irreversible brain damage after a stroke nearly a year ago. He died last Friday, hours before a judge was due to consider whether a hospital’s decision to withdraw life-saving kidney dialysis would be in his best interests.You can hear my interview with Butler-Cole (pictured) in the latest episode of A Lawyer Talks. My weekly podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above.

This is a free preview of a paid episode. To hear more, visit rozenberg.substack.comAfter months of uncertainty, the government is pressing ahead with its plans to curb the right to trial by jury in England and Wales. Legislation is to be introduced “next month”, a minister says. Sir Brian Leveson expects the government to publish its bill even sooner, he tells me in this week’s episode of A Lawyer Talks.The former head of criminal justice was talking to me about the second and final part of his report on the criminal courts, which recommends no fewer than 135 efficiency improvements. But inevitably we spent much of the interview discussing the structural reforms Leveson had recommended in part one of his review last July.The most eye-catching of these is a new bench division of the crown court, which will try cases without a jury. Leveson thought it should consist of a judge and two magistrates but the government says it will be a judge sitting alone.He was careful not to comment on the government’s proposals — or indeed on whether ministers might let magistrates sit in the bench division if concessions have to be made in the House of Lords. But Leveson was perfectly happy to tell me why he stood by his original recommendations — those that ministers had accepted and those they had not.My column for this week’s Law Society Gazette looks at how Leveson’s initial proposals were handled by the government. It also reports how he feels about the government’s decision to remove a defendant’s right to choose jury trial on charges that can be tried in the magistrates’ court. He would have limited the right to elect trial by jury rather than abolished it outright.Pieces I write for the Gazette are always free to read. The Gazette also carries a two-page analysis of Leveson’s latest recommendations by Monidipa Fouzder.My weekly podcasts are a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above.

This is a free preview of a paid episode. To hear more, visit rozenberg.substack.comAs the High Court begins hearing allegations today that the publishers of the Daily Mail hacked into phones used by the Duke of Sussex and other public figures, I thought it would be a good time to look at the most successful phone hacking operation ever carried out by law enforcement organisations in the United Kingdom and across Europe.Between 2016 and 2020, drug dealers and others involved in organised crime were using what they believed to be a secure messaging service called EncroChat. The system was cracked as a result of work by the Netherlands Forensic Institute. As a result, nearly 40,000 smartphones were infiltrated by the authorities and some 2,200 offenders were convicted in the UK alone. But although courts in England and Wales found ways of declaring the evidence admissible, prosecutions were far from straightforward because the law does not allow material intercepted in the course of transmission to be used in evidence. Without intercept material, prosecutors have to rely on phone hacking — so-called “equipment interference” — to dig out stored data. But that’s not something the agencies like to talk about.Among those calling for intercept evidence to be admissible is Professor Peter Sommer, an academic specialising in digital forensics, cyber security and electronic communications. In a recent paper, he drew on his experience as an expert witness in criminal prosecutions to explore some of the problems now facing the courts.You can hear Sommer outlining his concerns — and explaining how EncroChat was cracked — in this week’s episode of A Lawyer Talks. My weekly podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can listen a short taster by clicking the ► symbol above.

This is a free preview of a paid episode. To hear more, visit rozenberg.substack.comGibraltar’s senior police officer was “in effect… forced out” of his job in 2020 as a result of assertions by the British overseas territory’s acting governor Nick Pyle and the chief minister Fabian Picardo KC that they had lost confidence in him, an inquiry by a retired British High Court judge has found.In a 700-page report published by the Gibraltar government on 23 December, Sir Peter Openshaw said he had no doubt that the real reason Picardo had lost confidence in Ian McGrail, the police commissioner, was that the Royal Gibraltar Police had obtained a search warrant against Picardo’s friend, James Levy KC, which the chief minister was “determined in one way or another to thwart”. Levy denied any wrongdoing and was never charged.Picardo had misled the police authority, the inquiry found: “by suppressing the truth, he was in effect suggesting a falsehood”.Openshaw said that although McGrail realised his position had become untenable after the governor and chief minister had lost confidence in him, he retired only because he believed he was being unfairly and unlawfully compelled to do so. He felt he was being put under improper pressure to alter the course of a live criminal investigation.The former judge found that Picardo had behaved grossly improperly when he tried to interfere in an active criminal investigation. But when Openshaw’s report was published two days before Christmas, Picardo announced that he had been vindicated and the Gibraltar government had been exonerated.The chief minister said:Crucially, the report completely exonerates the government from the many spurious allegations made against it. I am also very pleased that the inquiry chairman has found that I genuinely believed the then commissioner of police lied to me. My reading of the report, therefore, is that it vindicates my position on this crucial issue. Most of the barristers who took part in the inquiry are based in London. McGrail was represented by Adam Wagner KC from Doughty Street Chambers (pictured at the inquiry). On the latest edition of A Lawyer Talks, he told me about the inquiry’s findings and gave me his reaction to Picardo’s comments.My weekly podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above.

This is a free preview of a paid episode. To hear more, visit rozenberg.substack.comIn its report earlier this month on the collapse of a high-profile Chinese espionage case, parliament’s joint committee on the national security strategy found evidence of questionable decision-making, misaligned expectations and failures to take potential opportunities that could remedy problems. “Some aspects are best described as shambolic,” the report added. “The government and Crown Prosecution Service must reflect… on how best to uphold public confidence in the integrity of the system in the face of public concern.” Ministers have until 3 February to respond.In the meantime, I have been discussing the committee’s findings with Nick Vamos, a former head of special crime at the Crown Prosecution Service and now head of business crime at the law firm Peters & Peters. As you can hear in the latest edition of A Lawyer Talks, he was surprised at how badly his former employers had handled the case. Vamos explained how the CPS had got it wrong — even though we still don’t understand why.My weekly podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above.

This is a free preview of a paid episode. To hear more, visit rozenberg.substack.comWe still don’t know why leaked government plans reported on Tuesday of last week — “juries will decide only murder, rape or manslaughter cases” — were so different from what ministers announced this Tuesday.It turns out that jury trial will be retained for cases where the likely sentence is over three years and for all indictable-only offences. Examples given by the government include murder, manslaughter, endangering life, rape and other penetrative sex offences, aggravated burglary, blackmail, kidnapping, people-trafficking, rioting, terrorism offences, grievous bodily harm with intent, the most serious drug offences and some weapons offences.So there are two possibilities: either the leaked document seen by other reporters was not an accurate account of the government’s plans or it was correct at the time it was circulated and ministers then modified their ambitions. When I interviewed the courts minister Sarah Sackman MP on Wednesday, I asked her which it was. On the latest episode of A Lawyer Talks, you can hear how she answered. I also took Sackman through detailed plans set out by the justice secretary in a written ministerial statement on Tuesday. During the interview, I began to understand why David Lammy had told MPs that we would have to wait until the next general election, due in 2029, before we could expect to see a fall in the crown court backlog.I analyse Sackman’s account of the government’s wide-ranging plans in my latest column for the Law Society Gazette.In my column, I also argue that public involvement in the criminal justice system should not be regarded as an immutable absolute. Putting it another way, I am not convinced by those who claim that we can substantially reduce the current unacceptable crown court delays without making significant structural changes. If you disagree, listen to Sackman and then add a comment below.Lammy’s statement should be read in full. For convenience, I have extracted the half-dozen proposals that I asked Sackman to explain or justify:* Magistrates’ courts’ sentencing powers will increase to 18 months, with provision to extend to 24 months if necessary to relieve pressure in the crown court.* The right of defendants to elect for a jury trial will be removed, meaning that it will be for the court to determine where a case will be heard based on the severity of offences.* The appeals process from magistrates’ courts will be reformed so that automatic appeals to the crown court in criminal cases are replaced with a permission stage, limited to points of law.* A new bench division will be established in the crown court for triable-either-way cases with likely sentences of three years or less, heard by a judge alone.* Jury trials will remain for indictable-only offences and cases with likely sentences over three years.* A small number of serious, but particularly technical and lengthy, fraud and financial cases may be heard by judge alone in the crown court, subject to certain requirements and at the discretion of the court.What emerges from the interview, it seems to me, is that there is still a lot left to play for.My weekly podcast — occasionally, twice-weekly — is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above.

Brexit has had an impact on everyone who holds a British passport but on none more so than those UK citizens who worked for the European Union and found themselves out of a job after the United Kingdom left the EU in 2020.It was therefore gratifying to see Middle Temple paying tribute to two senior members who had served in the EU courts by commissioning a painting of them. As you can see, it’s a custom that the inns of court have been following for centuries. This double-portrait is by Fiona Graham-Mackay.At a brief ceremony on Tuesday, Dame Eleanor Sharpston DCMG KC, who served as an advocate general at the Court of Justice for almost 15 years, and Ian Forrester KC, a former judge of the EU’s General Court, were introduced by Lady Justice Thirlwall, this year’s treasurer of Middle Temple.To listen to the brief speeches and see the painting being unveiled, just click the ► symbol on the image above. To watch in full-screen — which I recommend — click on the image and then click the appropriate symbol.A Lawyer Writes is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit rozenberg.substack.com/subscribe

This is a free preview of a paid episode. To hear more, visit rozenberg.substack.comThe rule of law must be protected against further erosion, an all-party parliamentary committee warns us today. Failure to do so, says the House of Lords constitution committee, risks the rise of extremist political parties, ultimately creating space for dictatorship. I was one of many who gave oral evidence.My analysis of the committee’s report— called The rule of law: holding the line against anarchy and tyranny — will appear in tomorrow’s Law Society Gazette.For today’s episode of A Lawyer Talks, though, I interviewed the committee’s chair, Lord Strathclyde (pictured), at the House of Lords. The chimes you’ll hear in the background, I should explain, are not those of Big Ben; it’s the ubiquitous House of Lords annunciator system.My weekly podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above.

This is a free preview of a paid episode. To hear more, visit rozenberg.substack.comHugh Mercer KC has sat as the UK judge at the European Court of Human Rights for little more than a month. But there will be a general election in less than four years’ time and two major political parties are seeking to have Judge Mercer kicked off the court before he completes his nine-year term of office. Does he still think applying for the post was a good career move?That was one of the questions I asked him last week when we met to record the latest episode of A Lawyer Talks. It was no surprise to find that Mercer thinks the UK should remain signed up to the human rights convention — which celebrates its 75th anniversary tomorrow — but some of his reasons were not what I had expected.We also discussed a claim in May by nine Council of Europe members, led by Italy and Denmark, that his court’s rulings had made it too difficult for them to deal with what they described as irregular migration. To what extent could the judges take account of the mood among European nations when deciding cases of this sort?Being the most junior member of the 46-judge court, Mercer was naturally cautious. But as someone who was on the other side of the bench until recently, his response was particularly interesting.My weekly podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above.