Category: News

Article by Trevor Berriman

As PPI disputes concerning undisclosed commissions following Plevin appear to be slowing in number, the Court will no doubt be seeing an increase in a new wave of claims focussing on secret commissions of the type seen in Wood v Commercial First Business Ltd and Others [2021] EWCA Civ 471.

In that case the Court of Appeal ruled that it was not necessary to find the existence of a fiduciary duty to grant civil remedies for the payment of a ‘bribe’ or ‘secret commission’.  The case involved the services of a Broker who had been retained by a customer to source funding options and the court identified wide-ranging circumstances in which a borrower can recover a secret profit or rescind an agreement as a result of an undisclosed commission.

The judgment also considered and clarified the level of disclosure necessary for a commission to be deemed “half-secret”.

The background to the cases under appeal were similar and involved the use of the same broker. The Borrowers had obtained loans secured against their properties and, unbeknown to them, the broker had received commission from the lender.  The commissions had not been disclosed to the Borrowers.

The Borrowers sought rescission of the loan agreements and the question arose as to whether the Lenders could be liable if there was no fiduciary relationship between the Broker and the Borrowers.

Wood held that it was not necessary for a fiduciary relationship to exist to find civil liability for the payment of bribes or secret commissions.

The question to be answered by the Court was whether the Broker was “under a duty to provide information, advice or recommendation on an impartial or disinterested basis”. The court also summarised it as “the duty to be honest and impartial”.

Remedies for bribery (or the payment of a secret commission) are available in both common law and equity. These remedies include:

• Money had and received (i.e. recovery of a sum equal to the amount of the secret commission) as against either payer or the payee; or
• Damages for fraud relating to any loss suffered (against the payer or the payee); and
• Rescission as of right, subject to counter-restitution.

The decision in Wood is likely to have wide reaching implications for lenders.  There is a marked increase in the number of cases being brought by claimants seeking to apply the Wood principles to car finance agreements and even utility contracts where a broker/intermediary has been used.

Claimants and Defendants are expected to be at odds over the scope and reach of Wood, and time will tell whether such claims will result in bulk litigation in the coming months.  

Article by Thomas Wheeler

A question frequently asked by Creditors pursuing bankruptcy proceedings, and Debtors trying to avoid a Bankruptcy Order, is whether a Court is likely to adjourn the hearing of the Petition.

Adjournment applications are usually made by Debtors who are seeking time to sort out their financial affairs, with a view to discharging the Petition debt and avoiding a Bankruptcy Order.  Such applications are frequently opposed by Creditors who may have already been waiting a length of time to be paid, and who may doubt a Debtor’s ability to pay.

The case of State Bank of India v Dr Vijay Mallya [2020] EWHC 96 (Ch) is the authority to be relied upon when making or opposing an application to adjourn.  This case was heard in the High Court by Chief Insolvency and Companies Court Judge Briggs who considered the previous authorities on the test to be applied.

The Court has a broad discretion as to whether to grant an adjournment application, as provided by s.266(3) Insolvency Rules 1986 which reads:

“The Court has a general power, if it appears to it appropriate to do so on the grounds that there has been a contravention of the rules or for any other reason, to dismiss a bankruptcy petition or to stay proceedings on such a petition; and where it stays proceedings on a petition, it may do so on such terms and conditions as it thinks fit.”

In the case of Re A Debtor [1920] KB 432 the Court identified at least three circumstances where an adjournment may be sought. First to remedy technicalities; secondly “to enable the evidence on either side to be fully heard and thirdly to enable the debtor in the event of his being able to do so, to satisfy [the Court] of his power to pay his or her debts in full.”

In line with earlier authorities, Mallya noted that to successfully obtain an adjournment, the Court would need to be satisfied that there was ‘a reasonable prospect that the petition debts would be paid in full within a reasonable time’.

The evidence before the Court will be of significant importance.  A Debtor would need to demonstrate that he has the means to pay the Petition debts in full, and that such payment can be made within a period that the Court considers reasonable.

The authorities demonstrate a varied approach to what period may be considered ‘reasonable’, and the Court will consider all of the evidence to determine what is reasonable in the circumstances.

Whilst Creditors may be dissatisfied by the granting of an adjournment, their position is to a certain extent protected.  The Court will not usually order repeat adjournments over a long period of time, the adjournment itself may result in the Petition debts being paid in full, and if the debt is not paid the Court is far more likely to make a Bankruptcy Order on the next occasion.

Debtors should be aware, however, that if a Petition debt is discharged by payment in full, there may be supporting creditors waiting to take over as Petitioning Creditor.  A Debtor should therefore take steps to address all of his debts during the adjournment period.

Halcyon Chambers is delighted to announce that Barbara Gonzalez-Jaspe has accepted an offer of tenancy. This comes after her successful completion of pupillage under the supervision of Suzanne Hodgkiss.

During her Pupillage year, Barbara gained experience in several Chambers’ key practice areas including Family, Civil and Immigration Law.

Barbara’s practice will cover all areas of Chambers’ core specialisms and all enquiries in relation to Barbara’s work and availability to accept instructions should be directed to the Clerks.

Halcyon Chambers are now inviting applicants to join our clerking team.

Chambers operates from a modern and spacious office, located in Birmingham City Centre.

Successful applicants(s) will report to the Senior Clerk and will have undertake duties including:

• Diary and Practice Management
• Fee negotiation
• General administrative Support

Person specification:

The successful candidate(s) will have excellent communication skills (verbal and written), the ability to multi-task and operate within a fast-paced and demanding environment, and will be comfortable using their own initiative as well as working as part of a team. A confident and positive attitude is essential, and applicants must be well organised with attention to detail.

Previous work experience within a Barristers’ Chambers or professional client services environment is desirable.

Remuneration details:

• Starting salary of £25,000 – £30,000 for a full time and permanent role dependant on experience.

All applications will be treated in the strictest confidence and should be emailed for the attention of the Senior Clerk, Chris Ridley via email at cridley@halcyonchambers.com

Halcyon Chambers is delighted to announce that Barbara Gonzalez-Jaspe has started her Second Six Pupillage under the supervision of Suzanne Hodgkiss.

Barbara is happy to accept instructions in Family and Civil Law.

Please contact the clerks on 0121 237 6035 or by email clerks@halcyonchambers.com for more information.

Halcyon Chambers are thrilled to announce Emma Weaver’s return to practice from maternity leave following the birth of her daughter.

Everyone at Halcyon Chambers welcomes Emma back to the Family Team where she will continue her practice.

If you wish to book Emma Weaver then please get in touch with the clerks on 0121 237 6035 or by email clerks@halcyonchambers.com

Halcyon Chambers is delighted to announce that Jamie Hughes has accepted an offer of tenancy. This comes after his successful completion of pupillage under the supervision of Trevor Berriman.

Jamie can be instructed over a wide range of practice areas. Please contact the Clerks to make any enquiries.

Article by Barbara Gonzalez-Jaspe

These appeals involve the deportation of foreign criminals and the tests used to determine if their expulsion from the UK would be unduly harsh on their families or if they satisfy the very compelling circumstances test to remain in the UK.

The two legal issues raised in these appeals are:

1. The meaning of “unduly harsh” within the context of the unduly harsh test which is applied in cases where foreign criminals are considered for deportation; and
   
2. The relevance and weight to be given to rehabilitation, and the correct approach to assessing the seriousness of the offending of a foreign criminal when considering the very compelling circumstances test.

Unduly Harsh

The SSHD argued that the unduly harsh test requires a comparison which is to be made with “the degree of harshness which would necessarily be involved for any child faced with the deportation of a parent” as per KO (Nigeria) v SSHD [2018] UKSC 53; [2018] 1 WLR 5273 at [23]. Undue harshness is a harshness which goes beyond that. It was their submission that this ‘notional comparator’ provides a baseline against which undue harshness should be evaluated.

The SSHD further submitted that in disapproving of the comparison being made between the harshness of a ‘qualifying child’ (Nationality, Immigration and Asylum Act 2002 – s.117C(5)) to that involved for ‘any child’, the Court of Appeal departed from the settled approach set in KO (Nigeria) and thus lowered the threshold of the test.

In rejecting these arguments the Supreme Court said that Lord Carnwath in (KO Nigeria) cannot have been contemplating a notional comparator test for the following reasons:

1. Had the intention been to define a level of acceptable or justifiable harshness or to lay down a test to be applied in all cases by reference to the suggested notional comparator, Lord Carnwath would have given more detail.
   
2. “Any child” is meant as an illustrative consideration, not a definition or test. It cannot be read literally otherwise it would encompass children for whom deportation of a parent would be of no real significance and therefore little or no harshness. If this were to be the test the threshold would be very low which is contrary to the judgement which states that much stronger emphasis needs to be given to the words “unduly harsh” [35].
   
3. The suggestion that the appropriate notional comparator should not merely be a qualifying child but one of the similar characteristics is wrong because there are too many variables in the suggested characteristics for any comparison to be workable.
   
4. A test involving a notional comparator child is potentially inconsistent with the duty to have regard for the best interests of the child in question as a primary consideration (Boarders, Citizenship and Immigration Act 2009, s.55). The discounting of what are said to be the ‘normal’ effects of deportation by reference to a ‘notional comparator child’ risks the courts and tribunals searching for features which are out of the supposed norm and ignoring the actual impact on a particular child.
   
5. The notional comparator approach risks the courts and tribunals searching for features that make a case exceptional or rare which will create an exceptionality threshold and is likely to lead to perverse results.

Article by Steven Evans

Halcyon Chambers’ Family Team recently represented a parent in care proceedings concerning allegations of abuse made by a child (15). Contrary to the child’s strong wishes, the Court determined that shewould not give oral evidence because it would not be in her ‘best interests’.

Eleven years on from Re W [2010] and the subsequent Working Party of the Family Justice Council guidelines, the Family Court remains unable to reconcile the ‘best interests’ principle and children’s participation in care proceedings. This is caused by regressive attitudes towards children giving evidence and the inadequate ‘special measures’ legislation available to the Family Court.

Part 3A of the Family Procedure Rules implemented guidance for the participation in proceedings and giving evidence by ‘vulnerable persons’. However, Part 3A only applies to children to the extent that they are witnesses and does not require the court to determine whether the participation of a child in proceedings is likely to be diminished by reason of vulnerability.

The court has the power to control evidence in family proceedings and to provide directions as to how evidence is to be presented to the court, although these provisions only apply to ‘special measures’ available at common law to children and vulnerable witnesses and do not extend to Rule 3A.8(1).

Therefore, ‘special measures’ for children derive from common law principles characterised by the Youth Justice and Criminal Evidence Act 1999 (“the YJCEA 1999”).

In addition, there are two conditions which must be satisfied before the court has power to order ‘special measures’ in family proceedings under Part 3A. Firstly, there must be an assessment of the witness and secondly, funding must be available to provide the ‘special measures’.

In criminal proceedings the Crown Prosecution Service can fund assessments and ‘special measures’, whereas Rule 3A.8(4) states “nothing in these rules gives the court power to direct that public funding must be available to provide a measure”. The lack of funding acts as an additional barrier to children giving evidence in care proceedings.

The Family Justice Council summarised the inadequate implementation of Part 3A in 2019 by stating “there is as yet only limited understanding as to how FPR Part 3A and PD 3AA are operating in practice. However, the Family Justice Council domestic abuse working group has been made aware… of the patchy and inconsistent implementation of these provisions”. The result if that ‘special measures’ for children are rarely used in care proceedings.

Comprehensive legislation in criminal proceedings has allowed children and vulnerable witnesses to give their ‘best’ evidence and ensure that hearings are fair. Whilst the Family Courts have adopted these principles by way of common law, a YJCEA 1999 equivalent does not yet exist.

New and comprehensive ‘special measures’ legislation is required to allow children to properly participate in decisions which have the gravest consequences to their lives.

It must go further than Part 3A by ensuring the Court has the power to order public funding is available for both the assessment and provision of ‘special measures’ in all cases involving children giving evidence.

However, ‘special measures’ legislation will be redundant unless lawyers and other professionals depart from the presumption against children giving evidence on grounds of age, immaturity and emotional harm.

It has been a long time since Re W [2010], yet we are no closer to allowing children fair and proper opportunity to participate in proceedings.

Article by Jamie Hughes

A reform of the ‘no-fault’ eviction process has been mooted by the government for some considerable time. Landlords anxiously awaited news of what, if any, process would replace it if this key remedy is taken from them. Meanwhile, tenants awaited news of whether they would be provided greater security against landlords

The current process – The landlord’s backstop

s.21 of the Housing Act 1988 allowed landlords to seek possession of a property which was let on an assured shorthold tenancy on two months notice, either on a contractual break date or following the expiry of the fixed contractual term. Under this procedure, the landlord would not need to point to any particular ground for possession other than the fact the term has expired.

Landlords often viewed this as their backstop security measure for regaining their property when they could not make out any of the other statutory grounds. However, the government and housing charities have long sought greater security for those who rent on a private basis and adhere fully to their own obligations under the tenancy.

The suggested reforms

In the Fairer Private Rented Sector White Paper (16 June 2022) the Government set out a 12-point plan for reforming the private rental sector. Of these, two specifically affect the grounds for possession:

“3. We will deliver our manifesto commitment to abolish Section 21 ‘no fault’ evictions and deliver a simpler, more secure tenancy structure. A tenancy will only end if the tenant ends it or if the landlord has a valid ground for possession, empowering tenants to challenge poor practice and reducing costs associated with unexpected moves.

4. We will reform grounds for possession to make sure that landlords have effective means to gain possession of their properties when necessary. We will expedite landlords’ ability to evict those who disrupt neighbourhoods through antisocial behaviour and introduce new grounds for persistent arrears and sale of the property.”

As part of the abolition of s.21, the government intends to move all tenants who previously had Assured Tenancies or Assured Shorthold Tenancies onto periodic tenancies. It is suggested by the Government that this will “level the playing field between landlord and tenant”. Six months after giving notice, all new tenancies will be periodic and governed by the new rules and twelve months after the notice, all existing tenancies will be converted to periodic.

To balance the removal of section 21, the government has suggested it will strengthen the existing grounds for landlords to seek possession. This will include new grounds for landlords who wish to sell their property or utilise the property for themselves and their close family members. These two new grounds will be prohibited during the first six months of a tenancy, in the same way as s.21 operates.

A new mandatory ground will be created for repeated serious arrears. If a tenant has been in at least two months’ arrears three times within the previous three years, possession will be mandatory, regardless of the balance at the hearing. This will prevent the very common cycle landlord face of arrears increasing and then being cleared shortly before the hearing, often preventing possession if no other grounds can be made out. The notice period for existing mandatory rent arrears ground will also be extended to four weeks.

Landlords v Tenants – Who wins?

The exact structure/content of the intended legislation is currently unknown and will no doubt be scrutinised heavily by both sides of the private rent sector once it is published. It is hoped that the proposed changes will strike a fair balance between the competing interests of landlords and tenants. Whether this can ever be achieved in reality is yet to be seen.

Halcyon Chambers is delighted to announce that Muhammad Ul-Haq begins his secondment to the High Court of Justice in London as a Judicial Assistant assigned to the Queen’s Bench Division.

Everyone at Chambers wishes Muhammad the best and look forward to him returning to practice in August 2022.

Article by Barbara Gonzalez-Jaspe

The amendments to the law on divorce have been long overdue and signifies the biggest change to divorce law in decades. The overriding objective is to allow parties to separate with dignity and without needing to place blame where it does not squarely fall on one side or either.

The Blame-Game

The previous law on divorce did little to help the stereotypical view most people have of a warring couple in court. To many it wasn’t the fuel added to the flame but the cause of the whole problem. Couples who had decided they no longer wanted to be married had the following options available to them:

One party had to accuse the other of desertion, adultery or unreasonable behavior. If none of the above applied, they had to spend two years apart if both parties agreed to the divorce, or 5 years apart if one party objected. 

This led many couples having to assign blame in order to divorce within a reasonable time. For those who couldn’t play the blame-game, they had to remain together for two years which prolonged disagreements over finances and children. Both situations often caused unnecessary animosity between those who had equally decided their marriage was over. The previous law also forced parties who wanted a divorce to remain in a marriage for up to five years if their ex refused to accept they wanted a divorce.

Divorce, Dissolution and Separation Act 2020

From the 6th April 2022 couples who wish to split amicably are able to do so and removes the ability to make allegations about the conduct of a spouse which is often deeply personal.

One or both parties can file for a divorce by making a statement their marriage is over. There is a minimum 20 week period between the initial commencement of proceedings and making an application for a conditional order (formerly Decree Nisi), a further 6 weeks later the divorce is then granted in a final order (formerly Decree Absolute). The courts will still be involved to resolve any contested issues with respect of finances, children, division of assets and maintenance but the personal reasons for the split remains between the couple.

This new law allows for those who wish to part ways to do so without becoming enemies for life when they simply just want to move on. It also allows for children to be protected from warring parents and gives dignity and autonomy to those who are leaving an unhappy, abusive or controlling relationship by preventing the other from opposing the application.

Ultimately this change in the law has been welcomed by family lawyers and those seeking to divorce quickly and/or on good terms. It is hoped this will go some way towards alleviating some of the unpleasantness of divorce and its positive impact to filter across other areas of family law.

Article by Naomh Gibson

The Teaching Regulation Agency (‘TRA’), is an executive agency of the Department for Education (‘DfE’), responsible for regulating the teaching profession in England. The TRA investigates cases of serious teacher misconduct and decides whether to refer a case to a professional conduct panel, who may make findings and, if appropriate, recommend to the Secretary of State to impose a prohibition order.

The DfE is considering whether to broaden the scope of the TRA’s powers. They are now in the second stage of its consultation on the proposed changes.

What are the proposed changes?

The TRA is proposing the following changes:-

• The TRA may consider all referrals of serious misconduct committed by any individual who has at any time in the past been employed or engaged to undertake teaching work in a relevant setting
• The TRA may regulate Further Education colleges, Providers of post-16 education as set out in the Apprenticeships, Skills, Children and Learning Act 2009 (as amended), and online schools
• The Secretary of State may consider referrals of serious misconduct regardless of how the matter comes to their attention

How would this affect me as a Teacher?

If you are an individual who is not currently working as a teacher or is between jobs (e.g. those on a career break or teaching infrequently, or supply teachers between jobs), any alleged misconduct you engage in during this time can be referred to the TRA. There is no limit planned for the length of time that may have passed since someone last worked in schools.

There is an added difficulty by the fact there is currently no method that an ex-Teacher can ‘de register’. If someone has qualified as a Teacher, they are presumed able to return to the classroom at any time.

There is a concern that if not properly considered and implemented, those who have worked as a Teacher some time ago with no intention of returning to the classroom may be facing regulatory proceedings, with all the accompanying stress and cost.

The changes to include FE colleges and other higher education facilities is likely to be welcomed, unless you are an individual who works with adults in these facilities, not children. It remains to be seen whether the proposed changes will be drafted carefully enough to exclude people in higher education settings who don’t work with minors.

At present, the TRA has to wait for a complaint from an employer or member of the public before they can look into a referral. The DfE does not allow ‘self-referrals’ from their own agencies.

If this changes, you may also be facing a TRA referral where your conduct has been subject to scrutiny by DfE officials elsewhere other than the TRA, for example by the ESFA (the Education and Skills Funding Agency) which conducts academy audits, or the STA (the Standards and Testing Agency) which looks at examination administration.

This could result in an individual being targeted by multiple DfE agencies at one time, even where no complaint is made by your employer or pupil-parent.

What can I do about this?

If you would like to engage in the consultation, you can do so online: www.education.gov.uk/consultations

The results of the consultation and the Department’s response will be published on GOV.UK in Spring 2022.

If you are facing an investigation or a professional conduct panel and would like assistance, Naomh Gibson is available for instruction. Naomh has experience as a Presenting Officer for the TRA which gives her invaluable insight into defending Teachers. You can contact Naomh’s clerks on 0121 237 6035 or clerks@halcyonchambers.com.

Halcyon Chambers is pleased to announce that Barbara Gonzalez-Jaspe has joined Chambers as a new Pupil commencing 4 April 2022.

Barbara is currently undertaking a mixed common law pupillage with a focus on family law under the supervision of Suzanne Hodgkiss.

This is in addition to Jamie Hughes and Steven Evans who have recently commenced their Second Six Pupillage on the 1 March 2022 and 28 March 2022 respectively.

Everyone at Halcyon Chambers wishes them all the best in the forthcoming months.

Article by Shabinah Ladha

In both Islam and Judaism in order to remarry a woman must obtain a religious decree of divorce; under Jewish law, the Get, and under Shari’a a Talaq, Khul or Mubaraat.  If the woman is not religiously divorced, she will remain married under religious law and in the eyes of her community. As a result any marriage under civil law is regarded as adulterous and future offspring will be considered illegitimate.

Capricious Muslim husbands might divorce their wives under English law but will not pronounce Talaq thus preventing their wives from remarrying which is often known as a ‘limping marriage’. In Judaism a recalcitrant husband may refuse to give his wife a Get preventing the Jewish marriage being dissolved resulting in what is known as ‘chained wife’. These husbands weaponise divorce to grant or withhold divorces in order to negotiate favourable financial settlements, or contact and custody issues relating to children of the family.

The Divorce (Religious Marriages) Act 2002, inserted a new section into the Matrimonial Causes Act, 1973, which came into force in 2003. This new section recognises ‘limping marriages’ within the Jewish community. Section 10A allows either party to the marriage to apply for the decree absolute to be made only after steps have been taken to deliver the Get. The purpose of this is to ensure that a person who obtains a divorce in the civil courts is also regarded as divorced by his or her religious community, and therefore free to remarry and therefore no longer ‘limping’ or ‘chained’.

Other religions may seek to be ‘prescribed’ within the legislation. To achieve such prescription the Lord Chancellor must issue an order after prior consultation with the lord Chief Justice, and such an order must be made by a statutory instrument. To date, however, Islamic divorce is not included.

The Domestic Abuse Act 2021 was given Royal Assent in April 2021. The draft statutory guidance on domestic abuse published in July 2021 recognises withholding a religious divorce as constituting a form of domestic abuse, namely “controlling or coercive behaviour”.

The Guidance under the heading Religious marriage and divorce sets out the following:

66. A form of spiritual abuse may include the withholding of a religious divorce, as a threat to control and intimidate victims. In some cases, it will be accompanied by other manifestations of abuse within the marriage.
67. In Judaism this concerns the Get, and instances whereby a recalcitrant husband may refuse to give his wife a Jewish bill of divorce (or a wife may unreasonably refuse to accept a Jewish bill of divorce). Unreasonably preventing a religious Jewish marriage being dissolved often includes the imposition of such conditions.
68. The ability to refuse to give a Get provides abusive husbands with power and control and will be used often to exert leverage in relation to other aspects of the divorce. The refusal will have a significant impact on the wife’s wider living conditions: She will often be severely restricted in her social and personal life. It affects her ability to re-marry and directly affects the status of any children she may have in the future.
69. In Islam this can involve the refusal of a Muslim husband to grant his wife a religious divorce, talaq, which is the annulment of a nikkah, as a way of prolonging the process of divorce. The threat of talaq being uttered and the arbitrary use of this by perpetrators may also often be cited by some victims.

It is hoped that the effect of these new provisions is that women who are trapped in a marriage as a result of their husbands refusing to grant them divorce are recognised as victims and the Act provides some steps towards redress and opens the door for further changes in legislation and understanding of ‘limping marriage’. In practice it remains to be seen how these provisions will be received and work in practice once the Act is fully in force.

Article by Shabinah Ladha

Archaic

Every day I receive correspondence addressed to me as “Dear Sir/s”. This male address is an accepted standard which is still used by law firms, the court service and barristers’ chambers.

To me this greeting is a relic of a time when women, and those identifying as female, were a minority within the legal field and, at worst, not welcome within it. Women are no longer a marginal group in this profession thus it should follow that the practice of assuming male identity as a default is no longer appropriate.

What we should be doing is using a person’s preferred gender pronoun, or a gender-neutral alternative. In doing so we acknowledge a person’s identity, are respectful, inclusive and courteous.

Why Change?

We have to think about the language we use as it reveals the assumptions and decisions being made. “Dear Sirs” makes the assumption that the recipient is a male, and again, fails to give regard to the actual recipient. Using this address when you know the recipient, could be seen as a micro-aggression if you are on opposing sides, it can also signal regression and laziness to properly address the recipient.

The lady Judge who presided over my matter this morning told me that she is constantly referred to as ‘he’ when her Judgments are quoted. Surely, we are passed the belief that there is no place for female Judges and practitioners in our midst? If we have, then why are we failing to properly address women when it comes to such basic issues of correspondence?

Taking the time to amend standard letters and legal precedents in contracts, leases and court orders shows courtesy, gender equality and takes into account our duty not to discriminate.

The BSB Handbooks lists ‘You must not discriminate unlawfully against any person” as a core duty and also, tells us to treat each client with courtesy and consideration, which must also apply to colleagues, opposing lawyers and everyone in general.

Change Matters

The legal profession is well aware that language, communication and words matter. If we want an inclusive profession but continue to use language that is gendered we will continue to exclude a large part of the profession.

Changing language is often a precursor to larger, systemic changes and further steps to purging this profession of sexual harassment, gender bias and under representation of women at senior levels such as heads of chambers, benchers, within committees, law firm partners and within the judiciary.

It is time to ditch Debretts, break the bias and start using a person’s preferred gender pronoun, or a gender-neutral alternative. In doing so we acknowledge a person’s identity, are respectful, inclusive, courteous and not discriminatory.

So then what should we use instead, well, if in doubt, just ask!

Article by Shabinah Ladha

Wigs Getting Twisted

The last few weeks have seen Barristers getting their wigs in a twist and posing the question to “wig or not to wig?”. The arguments for and against keeping the wig are numerous and wide ranging. Recent Twitter feeds and newspapers articles throw up a number of emotive responses, some of which have pointed to hair discrimination.

On 9 February 2022 Michael Etienne Tweeted:

“Asked the Bar Council what could happen if, as a Black Barrister with an Afro, I declined to wear my wig. The answer included: ‘contempt of court’. ‘wasted costs’ and various potential breaches of Code of Conduct. ‘Unless the insistence was discriminatory’
#HairDiscrimination”

Twitter feeds rarely provide thorough context and reasoning and are often devoid of value to serious debates such as hair discrimination but often an open door to misinformation and vulgar exchanges.

Bar Council ‘Guidance’

The Bar Council calls itself the lead representative body for Barristers in England and Wales. Their work is devoted to ensuring the Bar’s voice is heard, efficiently and effectively, and with the interests of the Bar (and the public interest) as its focus. Well then, what do they say about wigs? They provide a guidance note on appropriate court dress, although, they are keen to point out that this is not “guidance” for the purpose of the BSB Handbook. In their document they provide a tick-box table which shows in which courts business attire is to be worn and when to wear court dress, namely, wig, gown, wing-collars and bands or collarettes. As a general rule, advocates are robed for the High Court and in the Crown Court unless the Judge otherwise orders. Robes are not generally worn in tribunals or magistrates courts. By convention cases which directly relate to the liberty of an individual require court dress

Religious Accommodation

The Bar Council quite properly intend their guidance to provide a note of what clothing is expected and acceptable, reflecting the seriousness of the function Counsel perform in Court, the role of Court dress as the uniform of the profession and the need for such uniform to be inclusive of different religious practice. Clothing worn as a requirement or emblem of faith is permitted to be worn in Court. The note provides some examples:

“7.1 Christianity: Jewellery bearing crosses or other symbols of religious belief is permitted (and this applies equally to other beliefs).

7.2 Judaism: Kippahs may be worn (and worn under wigs where Court Dress is required).

7.3 Islam: Headscarves may be worn but should be sober coloured. Headscarf-wearing Muslims need not wear wigs where Court Dress is required.

7.4. Sikhism: Turbans may be worn but should be sober coloured. Turban- wearing Sikhs need not wear wigs where Court Dress is required.”

There has long been an accommodation of sorts for religious dress. Sikh Barristers wearing a turban and Muslim Barristers wearing a hijab, for clearly apparent reasons are not required to wear a wig. Sir Mota Singh, the first ethnic minority judge in England forsook the wig for a turban when he was appointed in 1982. Despite some accommodation for some races and religions the Bar Council’s guidance is silent as to whether Barristers who have specific hairstyles such as afros, braids, twists, and locks should be exempt from wearing a wig. Should ‘these’ Barristers groom themselves to conform to a Eurocentric aesthetic in order to wear the wig? Regulating people based on the appearance of their hair is surely not discrimination?

Combing Through the Law

The Equality Act 2010 provides protected characteristic status to nine identity markers; age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. The features listed under race are currently: colour, nationality, and ethnic origins. Hair is not explicitly mentioned in the Act as an identity marker although recent caselaw acknowledges that hair discrimination is a form of discrimination.

(G v Head Teacher and Governors of St Gregory’s Catholic Science College [2011] EWHC 1452 (Admin) was a claim concerning the lawfulness of the uniform policy applied by the defendants which, because the claimant was unwilling to comply with one aspect of it, meant he was unable to take up his place at the school. G, of African-Caribbean ethnicity had not cut his hair since birth and kept it in cornrows. This is in accordance with his family tradition. Cornrows (sometimes called braids) were prohibited by the uniform policy of the school and so he was not permitted to attend school so long as he kept his cornrow style. It was held that there had been indirect discrimination. The requirement for a provision, criterion or practice which put a person at a “particular disadvantage” for the purposes of indirect discrimination under the Race Relations Act (now repealed) was discriminatory.

Within the judgement of this case, the Court considered that the claimant’s religious beliefs were a valid justification for having cornrows, making an exception to the policy. There was no mention of racialised hair discrimination, but simply the allowance of one’s religious belief. The High Court failed to comprehend the disproportional isolation of a black hairstyle, where an insinuation is made that cornrows are not acceptable, thus deemed unprofessional in schools. This omission creates confusion where professional environments often fail to recognise ‘hair’ to represent a distinctive feature of someone of black heritage.

Untangle the Law

Since the case of ‘G’ there have been a number of instances where hair policies enforced by schools and employers have led to racial discrimination; black children being sent home from school because of their afros (Ruby Williams) or ‘extreme ‘haircuts (Josiah Sharpe), black boys being told to cut off their dreadlocks (Chikayzea Flanders), black women being turned down for jobs because they wear their hair in braids or cornrows (Lara Odoffin), and black employees being told to chemically straighten their natural hair. I am cautiously confident that no Judge at the English Bar would impose a Barrister to wear a wig where their hairstyle does not allow for it. However, there must be clear and unambiguous guidance for the Bar, for schools and employers to prevent hair discrimination in policies and practices.

The Equality Act can address this issue by regarding ‘hair’ as a protected characteristic (both texture and style). This will increase the clarity of the law, as well as the UK’s understanding of systemic racial issues amongst our current systems. A similar approach has been taken by parts of the United States through the creation of the CROWN (Create a Respectful and Open World for Natural Hair) Act 2020. The Act prohibits discrimination based on hair texture and protective hairstyles in professional environments.

The Bar Council need not wait for UK Legislation to untangle its subjective understanding of black ‘hairitage’ and ought to comb through its own guidance in order to weave into it accommodation for diverse hair styles and textures and understanding of hair discrimination. We must understand that dress codes and indirect grooming policies that ban natural hair including afros, braids, twists, and locks compel individuals to mask their ethnicity and conform to European norms. It is not acceptable to brush hair discrimination aside.

Article by Shabinah Ladha

I often get asked by solicitors if their lay clients are permitted to wear a Niqab or Burka whilst giving evidence in Court.

A Niqab is a veil for the face that leaves the area around the eyes clear and worn with an accompanying head scarf. A Burka is usually a one piece veil that covers the face and body, often leaving a mesh screen to see through. A hijabrefers to a headscarf which covers the head and back and leaves the face clear. The Hijab does not cause any difficulty as the face can be seen.

The Equal Treatment Bench Book (ETBB) recognises that an issue may arise if the face cannot be seen as a result of wearing a Niqab or Burka and provides some guidance as to what can be done in a pragmatic way without Judges seeking to resolve any doctrinal conflict as to whether the face veil is mandatory in Islam.

In non-criminal cases a Judge is permitted to ask anyone giving evidence to take off her veil whilst the evidence is being given, BUT only if a fair trial requires it and the Judge reasonably believes it is necessary in the interests of justice. Judges must consider whether effective evidence can be given without removal.

The wearing or otherwise of the veil should be addressed at pre-trial stage and/or at the start of the hearing. A short adjournment and conference before the hearing can often allow the lay client time to reflect and consider their position and seek advice on this issue. Where removal is considered in the interests of justice, a Judge must consider arrangements such as limiting observers in the courtroom and the consideration of giving evidence behind a screen.

Tension arises where the court must balance the right to religion and right to a fair trial. The main objection to wearing a face veil whilst giving evidence is that the witness’s credibility cannot be properly assed without being able to see the witness’s face. The Court of Appeal in SS (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 1391 [41] has provided guidance in relation to demeanour of witnesses and what, if any, weight to attach to the impression which may be formed. Leggatt LJ stated:

No doubt it is impossible, and perhaps undesirable, to ignore altogether the impression created by the demeanour of a witness giving evidence. But to attach any significant weight to such impressions in assessing credibility risks making judgments which at best have no rational basis and at worst reflect conscious or unconscious biases and prejudices. One of the most important qualities expected of a judge is that they will strive to avoid being influenced by personal biases and prejudices in their decision-making. That requires eschewing judgments based on the appearance of a witness or on their tone, manner or other aspects of their behaviour in answering questions. Rather than attempting to assess whether testimony is truthful from the manner in which it is given, the only objective and reliable approach is to focus on the content of the testimony and to consider whether it is consistent with other evidence (including evidence of what the witness has said on other occasions) and with known or probable facts.

This guidance goes some way in assisting the Judiciary in reconciling any conflict as to evidence being given with the Niqab or Burka on. The most important part of a witness’s evidence is the content rather than the manner in which it is conveyed.

Post pandemic case law further assists. It has become the daily diet of practitioners to consider whether a remote hearing is suitable for their clients and the ensuing discussions have resulted in a number of cases that discuss the importance of evaluating content in witness evidence. The Court in A Local Authority v The Mother & Others [2020] EWHC 1233 (Fam) [42-43] discusses this:

…the credibility of a witness and the truthfulness of their account in the vast majority of cases is reliant principally upon the evaluation of the content of their evidence rather than the evaluation of their demeanour. That is not to say there may not be rare cases where demeanour may be of some importance, particularly where there is no or little contemporaneous or other evidence which bears upon their account… Thus, the evaluation of the credibility of a witness’ account will usually take place against a backdrop where consistency can be judged against earlier accounts, against contemporaneous evidence and against the evidence of others. It is also now well recognised that memory is a fallible instrument. Thus in judging demeanour how does one distinguish between the confident liar, the confident but genuinely mistaken witness and the confident truth teller or alternatively the hesitant and anxious truth teller, the hesitant and anxious but genuinely mistaken witness and the hesitant and anxious liar?

Emerging case law and circumstances suggest that the ETBB must be revised in light of our post pandemic court sphere. It is still a matter for the trial judge to consider whether evidence can be given whilst wearing a Niqab or Burkabut with the assistance of emerging case law on witness content and a host of civil trials which have been conducted on the telephone and other remote platforms it is hoped that we are all better equipped to deal with witnesses wearing a veil.

Lord Neuberger said some years ago when addressing this issue that judges require an “understanding of different cultural and social habits” and added that “it is necessary to have some understanding as to how people from different cultural, social, religious or other backgrounds think and behave and how they expect others to behave.” Thus, if the decision is taken to ask the witness to remove the veil, then it must be done in this vein.

I recently came across an article about Sir John Fielding, Chairman of the Middlesex Magistrates in 1754 and prolific social and penal reformer. His portrait currently hangs in Court 1 at the Supreme Court. He was known as the ‘blind beak of bow Street’ and could recognise 3000 criminals by the sound of their voices. Sir John was blind and some 268 years ago successfully conducted his duties without the need to view a witness’s face.

Article by Shabinah Ladha

On the eve of Valentines weekend I represented a couple seeking asylum on the basis that they form part of a particular social group ‘victims or potential victims of an honour crime’ within the meaning of the 1951 Refugee Convention. I will refer to my clients as ‘Layla’ and ‘Majnun’. One of them an Arab Iraqi and the other an Iraqi Kurd. Their love story is one that contains all the makings of an epic ‘would be tragedy’, young lovers, officious parents, different tribes, violence, their families denying their union as they planned their murder.

These stories are ones that practitioners have heard many times over but is still no less astonishing that Layla and Majnun’s circumstances did not temper their love and devotion to each other.

The Country Policy and Information Note Iraq: ‘Honour’ crimes defines this:

“‘Honour’ crimes may be committed or ordered by a husband, a father, a brother or another relative as a punishment to a family member because they have gone against social or cultural norms and are perceived to have damaged the family’s reputation by their actions. Such ‘offences’ include (but are not limited to) friendships or pre-marital relationships with a member of the opposite sex; refusing to marry a man chosen by the family; marriages that are against the family’s wishes; seeking a divorce; committing adultery; being a victim of rape or kidnapping; and defying gender roles…Punishments for perceived ‘honour’ offences range from physical abuse, forced marriage, forced suicide and murder.”

The Iraqi Penal Code permits ‘honour’ as a mitigation for crimes of violence committed against family members and allows for lenient punishments for ‘honour’ killings on the grounds of provocation or if the accused had ‘honourable motives’.

In the UK a crime committed by another member of the family in order to restore ‘honour’ upon the family will never be a defence to a criminal offence. The Court of Appeal in AM v Local Authority, The Children’s Guardian, B-M (Children) [2009] EWCA Civ 205; [2009] 2 FLR 20 [117-120] makes clear the position of ‘honour killings’ within this legal system:

“My second point is that the time has surely come to re-think the phrase “honour killings”. It is one thing to mock the concept of honour – as, for example, Shakespeare does through Falstaff in I Henry IV Act V, Scene i. It is quite another matter to distort the word “honour” to describe what is, in reality, sordid criminal behaviour. I put on one side the murder of a baby in this case, since brother 1’s motivation for the murder is not known. However, the remorseless pursuit of the baby’s mother who, the judge found, was a woman fleeing from domestic violence; the fact that the mother of the subject children in this case sprayed the night clothes of one of them with white spirit and set fire to her house in order to implicate the intervener; the fact that the mother will not identify her brothers in the conspiracy for fear of reprisals; the fact that the grandfather appears to believe that the death of the baby was an accident and the will of God – these things have nothing to do with any concept of honour known to English law. They are, I repeat, acts of simply sordid, criminal behaviour and a refusal to acknowledge them as such. We should, accordingly, identify them as criminal acts and as nothing else.

The Muslim scholar in his evidence did not suggest that such activities can be encompassed within Islam. The most he said was that they formed part of the older generation Pathan culture. The message from this case, which must be sent out loud and clear, is that this court applies a tolerant and human rights based rule of law: one which, under the Act of 1989 regards parents as equals and the welfare of the child as paramount

That is the law of England, and that is the law which applies in this case. Arson, domestic violence and potential revenge likely to result in abduction or death are criminal acts which will be treated as such. 

In this case, the family may wish to reflect on the fact that it has lost five of its children: one by death, one by the legitimate flight from gender-based violence inflicted on his mother, and three to the care system. None of this, in my judgment, has anything to do with any concept of “honour” and all of it is manifestly contrary to the best interests of children.”

In light of this judgment and the catalogue of research and expertise in this area it is about time we stopped using the phrases ‘honour killing’ and ‘honour crimes’ this undermines the victims and gives kudos to the perpetrator of the crime with an excuse for their violence. These crimes should be referred to without any cultural connotations and should be known as the heinous crimes they are, murder, rape, abuse and enslavement. ‘

Practitioners must also understand that ‘honour’ based crimes should be seen as distinct from domestic abuse as not recognising the specific nuances will undoubtedly leave victims unsupported by practitioners who are ill equipped to understand the nuances between the two. The challenge then is to devise suitable policies and strategies of intervention to support ‘honour crime’ victims in cases that involve both domestic and non-domestic perpetrators.

For Layla and Majnun they succeeded in fleeing Iraq. Their journey to the UK is one that is now all too familiar, over land by foot, in crowded lorries, makeshift boats over inhospitable waters and then arriving in an ever-hostile environment. Their nightmare ended on the eve of valentine’s weekend over two years after they arrived in the UK. The Judge dispensed with the usual reserved determination and allowed their asylum appeal to succeed. Unlike their namesakes, Layla and Majnun remain united and continue to fulfil their love.