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Laurence Simons Newsletter October 2014

Posted by: Laurence Simons 09/10/14
Lawyer under fire
PwC appoint top tech lawyer
European lawyers take up fight against 'fair play'
Lawyer in bid to abolish caste system
Dewani trial date set
Lawyers may be set to appeal after Pistorious verdict

Lawyer under fire

A Canadian lawyer became embroiled in a row with a judge over a legal aid question this month - and promptly found himself feeling like one of his clients as he was thrown in a cell.

Ian Savage, who heads up the Calgary Defence Lawyers Association, became angry with the way an impaired driving case was being handled by Judge Pat McIlhargey, who was presiding over the case, the Calgary Herald reports.

It appeared Mr Savage lived up to his name when he laid into Justice McIlhargey - albeit not physically - when he argued for a mistrial and that another judge be brought in to handle it.

To say the least, the judge was unimpressed and continued the hearing, while ordering the sheriff to escort Mr Savage from the courtroom.

Speaking to the Herald, Mr Savage described what happened next: "I was trying to properly represent my client.

"The judge ordered the sheriffs to take me out of the courtroom. I did not get a chance to leave on my own."

Indeed he did not, for they put him in the cells for three hours before he was released. Mr Savage relayed that he was also told the police would be speaking to him, something he said he was "looking forward" to. In the event, however, no charges have been brought against him.

Mr Savage said he was not the only lawyer in trouble at the court, with two other members of the defence team having mobile phones confiscated, apparently due to the ban on taking pictures or filming footage in the courtroom.

The lawyer has been a thorn in the side of quite a few authorities for some time as an active campaigner for more and better legal aid in the state of Alberta. His association recently set up a freephone line for defendants who had been refused legal aid.

PwC appoint top tech lawyer

The importance of cyber security is well-known in businesses of all sizes across the globe - but it requires more than just a few geeks to do the job, with legal expertise required too.

Recognising this, UK accountancy firm PricewaterhouseCoopers (PwC) has appointed leading data protection lawyer Stewart Room to look after this area of its business.

Mr Room, who has 23 years of experience in the field and was formerly a data privacy and security partner at Field Fisher Waterhouse, was also the joint founder of the Cyber Security Challenge UK, a partnership between companies and the government aimed at improving information security and reducing the cyber skills gap in the UK economy. He retains a role on the board of the organisation.

Commenting on his appointment, Mr Room said: "I am looking forward to helping our clients understand their rights and obligations relating to their systems and data, and helping them identify, protect and manage what is most critical for their organisation's growth."

Welcoming his new legal appointee, chairman of cyber security practice at PwC John Berriman said: "He is trusted by the business community and we look forward to working with him to develop our services for companies who are increasingly aware of how important it is to protect their digital transactions and data - at a time when the security risk to business revenue and reputation is ever more critical."

He added: "It is essential that business leaders prepare for the digital future and put cyber security firmly on their board's agenda."

The comments come at a time when PwC's own 2014 Information Security Breaches Survey has shown how much harm can be caused by cyber criminals. It found the worst cyber breaches in the UK typically cost small firms around £115,000, while for the big companies the average was £1.15 billion.

European lawyers take up fight against 'fair play'

A rule that prevents European football clubs spending more than what they earn in a bid to curb unsustainable inflation in wages and transfer fees could be about to get challenged.

The UEFA Financial Fair Play (FFP) rules have been designed to ensure that clubs remain stable and that the destination of the trophies each season is not simply the consequence of sheikhs and oligarchs taking over clubs and ploughing billions into them.

In England, the two clubs that fit this bill are Chelsea, owned by Russian billionaire Roman Abramovic, and Manchester City, who were taken over by the Abu Dhabi United investment vehicle on behalf of Sheikh Mansur, one of the few men with even more cash than Abramovic.

Both clubs have enjoyed lots of success as a result of spending all that lolly on player transfer fees and wages. However, in a bid to curb this kind of thing, European football's governing body UEFA introduced FFP, first checking it was legally OK with the European Union.

However, that is clearly not going to stop the lawyers trying - and this appears to have been the case at Manchester City, a club deemed by UEFA to have breached its FFP rules last year.

As punishment, the club was told it could only spend a net £49 million in the transfer window - which ended up being less than a third of the sum lavished by neighbours Manchester United. That particular sanction may not have hurt City much, as it might be reasoned that as reigning English champions, their team was not in urgent need of improvement in the way that the side across town evidently was.

However, a second ruling caused more concern, with City being told they could only have 21 players in the Champions League Squad instead of the normal 25, while still having to include four home-grown players. Yet when the squads were named, there was only one player - Deryck Boyata - who met this criteria, compared with the four fielded by England's other clubs.

According to football law specialist at Field Fisher Waterhouse Daniel Geey, this has come about through the threat of a legal action alleging restraint of trade, backed by world player union Fifpro. He told the Independent: "Uefa have effectively rewritten their home[-]grown player rule. There is nothing in Uefa or FFP regulations about the home-grown rule changing."

With a similar change applying to the other club sanctioned under FFP - Qatari-owned Paris St-Germain - there does appear to have been some legal machinations going on. UEFA would only confirm that it has spoken to "concerned stakeholders" at City. However, the development may suggest that even if no legal challenge can bring down FFP altogether, some sports lawyers may be able to tinker at the edges to reduce the severity of punishments. 

Lawyer in bid to abolish caste system

India's human rights record is a mixed one, particularly from the standpoint of westerners, who may applaud the maintenance of the largest democracy in the world, but look with deep concern on some culturally-endemic elements of life in the country.

One of these is the Hindu caste system, which operates as a form of social stratification that its critics argue condemns many to a life of unfulfilled potential, poverty and a greater risk of dying young. It might be suggested that India is simply the most prominent site for the operation of the system because it has the largest Hindu population, but it is notably less prominent in other countries, such as among the Tamil parts of neighbouring Sri Lanka.

There are various ways some have sought to escape from the caste system - such as converting to other religions - but nonetheless, one lawyer has set out to have it consigned to history altogether.

KK Bose, a 62-year-old Indian, has seen the system at first hand, although, interestingly, he is seeking to defeat it while outside the country, as he has lived in the UAE for 36 years. After 40 years of research on the subject, he wrote a book called 'Caste Away! India, Hinduism and Untouchability'. Following this, he is now calling for the country to abolish the system altogether, the National reports.

He wrote a letter to the Indian government calling for a ban and receipt has been acknowledged. It said: "The Government of India must act on my two declarations that - (i) Declare all Hindus as Brahmans (the higher class of citizen); and (ii) amend the constitution and related laws, suitably to remove the caste stigma by or before December 31, 2014, failing which I will take the lead and do all that is necessary to wipe out the caste system and caste based untouchability from Indian soil."

But will the new government - the first majority BJP administration in India's history - take any heed? If not, Mr Bose has pledged he will head back to India - having previously been on a 54-day tour to publicise his book - and take on the legal challenge himself.

He said: "I have promised that if the government fails to comply with my demands, I will do it," adding that many of the politicians in the present government have made public statements supporting the end of the system.

It may seem like a daunting challenge, but Mr Bose may have got his timing right, and his stance might embolden other Indian lawyers to join the fight.

Dewani trial date set

With the Pistorious trial no doubt set to drag on through the appeal stage, South African lawyers don't really need another high-profile murder case to keep them interested. But they have one.

Briton Shrien Dewani will be taken to Cape Town to face trial in early October for the alleged murder of his wife Anni, who was shot dead on their honeymoon in 2010. At first it seemed like another tragic case of township violence, but then allegations emerged that it was only meant to look that way, and was in fact a contract killing.

Indeed, three men have already been sent down for the crime; Xolile Mngeni, who pulled the trigger and was allegedly the hit man, his accomplice Mziwamadoda Qwabe, who pleaded guilty to being his accomplice, plus taxi driver Zola Tongo, who also fessed up and got 18 years.

The process has been delayed after Mr Dewani's lawyers claimed he was in too mentally fragile a state to stand trial due to suffering post-traumatic stress disorder, as presumably a newlywed who genuinely didn't want his new wife done away with would struggle with. But after the defendant lost his extradition battle in April this year, he was sent to a facility in the Cape for tests and has been passed fit to stand trial.

What prosecutors have to do is prove that this was indeed a contract killing and that Mr Dewani is behind it. A decision they will have to make is whether or not it is in the prosecution's interests to call forth the three murderers as witnesses against Mr Dewani. What value has the word of a convict?

Lawyers may be set to appeal after Pistorious verdict

After what appears to have been the longest "whydunnit" case in history, the verdict was finally passed on the events of the small hours of Valentine's Day 2013, when Oscar Pistorious went from being a role model and an inspiration to the centre of one of the most complex and high-profile criminal cases in recent years. And now we know: it wasn't murder, but it was culpable homicide, known as manslaughter elsewhere.

It was all done with the kind of drama and theatre that we have come to expect in this case. The judge Thikozile Masipa even got as far as discounting the two possible murder verdicts and then dismantled the case that Pistorious was acting the way "the reasonable man" would have done.

So, that's that then. The verdict has been passed and Oscar is going down, not as a murderer, but a convict nonetheless.

Not so fast, though - this affair has some way to run yet, although it is not carbon fibre blades, but the sharp legal minds of both teams, who may be seeking grounds for appeal. The defence may argue the verdict and sentence are too harsh, while the prosecution will want it upgraded to murder. Doubtless when the sentence is passed, both will want to argue about the level of punishment for the culpable homicide conviction itself.

The lawyers Barry Roux and Gerrie Nel have certainly been centre stage in this case and it is fair to say they aren't going away. But their role has certainly been a chastening one at times. Mr Roux has only managed a qualified success in getting his client off the most severe charge and Pistorious could still face a long stretch behind bars.

Prosecutor Nel, having grilled the defendant like Rambo with a flamethrower, was on the receiving end of judge Masipa's tongue a couple of times for an over-reliance on "circumstantial" evidence, both for the use of contradictory witness evidence and speculation about the exact position of Reeva Steenkamp in the bathroom when she was shot, plus his claim that the freshly-convicted Pistorious should be denied bail as he might try to abscond after selling his homes.

Indeed, the judge seemed less than overly impressed with lawyers in general, despite having been one herself for many years. This became evident when considering the issue of indemnity from the prosecution of Darren Fresco, a friend of both Mr Pistorious and his late girlfriend. Mr Fresco had seemingly given contradictory testimony over a lesser charge relating to Mr Pistorious allowing a gun to go off in public. However, Judge Masipa absolved him, suggesting he was not trying to mislead the court. She did so with the observation: "No-one is infallible - not even lawyers."