Understand Your Rights. Solve Your Legal Problems
Mental health can be a sensitive topic depending on who you ask. Things have improved solidly in the last decade—with advancements in communication and how we handle and treat those afflicted, as well as enhancements in work practices to manage employees or co-workers with better care and offer more substantial help if need be.
However, despite the progress we make, the issue remains: the workplace can be inherently stressful, and an overwhelming amount of stress can lead to a decrease in mental health. But which positions can be worse than others in that respect and why?
A study conducted in Australia in 2016[1] found that, compared to other professionals, lawyers suffer from considerably lower levels of psychological and psychosomatic wellbeing. Dr Rebecca Michalak of the University of Queensland found that substance abuse among private practice lawyers can be double that of others, and that bullying was a prevalent issue within law firms, particularly due to destabilisation. While most cases of bullying are defined by the victim as being narrowed to one person, in her research, Michalak found that 58.4% of lawyers subject to bullying confined it to a group, with 74.7% claiming that the main perpetuator was older than them.
In more recent news, 56,000 young lawyers in the UK are to be given questionnaires from the Law Society’s Junior Lawyers Division (JLD) to report their stress levels within their position. It succeeds the previous year, where exceedingly high levels of stress were reported from a similar survey. The aim of the questionnaire is to provide a deeper look into why these stress levels are so high and what can be done to remove the root of the problem, as well as raise awareness of these issues. According to their own research, one in four lawyers experience ‘severe’ stress at work, with 90% of juniors explaining that they feel stressed and under pressure on the job and over half of them saying they feel unable to cope as the result. JLD is to release guidance for employers on best practice to support junior lawyers, as well as other employees.
The important thing, as Ann Charlton, Coordinator for England and Wales at LawCare asserts, is that we "acknowledge and recognise" the problem. Recounting the calls she received to the charity’s anonymous support line, bullying and depression were the most common issues being brought to their attention. The connection between the two is clear—other, similarly damaging factors aside, bullying in the workplace can have a severe detrimental effect on a person and can be a widespread issue among lawyers in their field especially.
As we continue to develop how we handle the topic of mental health, it becomes ever more important to acknowledge the workplace and what happens within its walls—sometimes without us knowing or realising. With continued work and care, we can make the progress required to combat these injustices with more vigour.
[1] http://media.wix.com/ugd/a8d830_08ea2117408c4b3a9ae1b628f8d0d9ee.pdf
Lawyer Monthly has teamed up with Tom’s and Black Tomato who have been busy researching and developing experiences in new, off the radar destinations as well revisiting a few old favourites with innovative new tours for their clients, to bring you a definitive list of the best places to travel in 2018.
With key property openings and infrastructure developments opening up new regions to discerning and adventurous travellers, they are recommending destinations such as Keke Xili in China’s remote Tibetan highlands and Aysen, in Chilean Patagonia for wild experiences away from the crowds of Torres del Paine, all of which stand out for their own completely unique reasons and offer travellers whole new perspectives on the world.
Why for 2018?
Why for 2018?
Why for 2018?
Why for 2018?
Why for 2018?
Why for 2018?
Why for 2018?
Why for 2018?
Why for 2018?
Why for 2018?
If you would like to find out more information on travelling to these destinations, Epic Tomato is the expedition led adventure offering from Black Tomato, the award-winning bespoke luxury travel company.
The Seattle area has become known as an international technology and innovation hub, with first-rate tech companies, universities, and a thriving start-up scene all contributing to the city’s large and growing talent pool.
We have an exclusive interview with Elena Donio, CEO of Axiom who speaks more on technology impacting the legal sector.
'Axiom’s research and development centre, based at this technology epicentre, will be at the forefront of technology innovation in law. Part of Axiom’s research and development efforts are going towards shaping how state-of-the-art techniques in machine learning can be applied to contracting work.
'The goal is to move from finding clauses to interpreting clauses, which will dramatically improve the speed of contract analysis, enable more powerful insights, and deliver the capability of creating new bodies of contracts faster, and with higher quality', they reveal.
What do you think the legal industry needs to improve on, in regards to technology?
We believe that technology is already beginning to bring fundamental shifts to the legal industry – not just further enabling today’s processes, but altering legal work itself. And we think these shifts will be a tremendous force for good, empowering attorneys and business leaders to focus on what matters, minimising risk and maximising the value of their decisions. Innovations such as the deployment of artificial intelligence (AI) as part of M&A diligence efforts and the use of workflow and data analytics to drive contract remediation for large scale events like GDPR and Brexit are examples at play today.
Given the rate of change in legal tech, and the opportunity to profoundly improve outcomes, we believe that the industry at large must continue to push itself to think big – looking beyond incremental improvement – for fundamental changes to the nature of legal work; change that eliminates perceived trade-offs between, cost, speed, risk, and the quality of outcomes.
This change is already taking place across the industry. Our clients are thinking differently about the role technology can play in their day-to-day. We’re really excited to be partnering with companies like Dell, Johnson & Johnson, and many others, to explore how we can leverage technology to drive game-changing improvements and insights for them today.
In what ways are you ensuring that these improvements are being implemented?
While technology’s role in the legal industry will only continue to expand, we’re still in the early days of that journey – and that means remaining aggressive in our diligence, development and deployment of game-changing technologies, but also being meticulous in our assessment of them. We believe that’s the balance required to take great care of our clients, while offering cutting-edge solutions incorporating technology.
The tech we’re already using in the field includes workflow and analytics engines for contract negotiation and remediation. We used these to repaper contracts for six of the world’s largest banks as part of uncleared margin reform, and also currently use them in our Clinical Trial Agreement and M&A solutions. We’re also outfitting this technology in advance of outreach efforts related to GDPR and Brexit. We’ve deployed AI solutions to gather contracts and extract contract data as part of M&A and other corporate transactions, enabling our attorneys to focus on the legal language that matters. The data and insights these efforts generate mean that our tools improve with every single engagement.
While our clients are enjoying the benefits of these technologies today, it’s also essential that we build technology solutions that last and scale as our capabilities continue to expand. To that end, we recently appointed a new Chief Technology Officer, Doug Hebenthal. A 30-year technology industry veteran who has worked on disruptive technologies across Amazon, Microsoft, and other cutting-edge players, Doug is working to expand our technology vision, artificial intelligence capabilities, and automation of contract and other legal processes. He will also be overseeing the creation of our Seattle-based research and development centre, which we plan to open in 2018. The centre will be focused on developing the most advanced technology solutions in the legal industry.
We also launched AxiomAI earlier this year, a program that leverages AI to improve the efficiency and quality of contracts work. As part of AxiomAI, Axiom will accelerate the use of current-generation AI to help extract information from contracts for more rapid analysis. At the same time, Axiom will continue our R&D efforts to shape next-generation AI for more unique and transformative use cases. This program, combined with our market leadership in tech-enabled legal services, leaves us positioned as a market leader in the practical application of AI to legal work.
In five years, what do you think would be the most ideal situation for the legal industry in regard to tech?
In five years' time, we believe that the legal industry will view technology as integral to the delivery and deployment of legal services. Enabling seamless access to legal talent, data and analytics, and strategy implementation. The role of technology over this timeframe can be truly transformative – altering how legal services are delivered, as well as the work that’s done and how our clients spend their time.
The non-incremental change we envision reflects how rapidly technology can grow and mature and we cannot allow convention and prior experience to prevent the profound impact of tech from being felt. Technology will alleviate the industry from focusing on how work is done (as well as substantially reducing the cost of that work), while enabling focus on what matters – contract data analysis, optimising value in negotiation and transactions, and making strategic, informed decisions for the business.
Not only is that our ideal situation for five years from now, but we believe many elements of this vision will be realised even sooner. In fact, we’re already helping our clients with contract analytics today, at places like Dell, where we offer visibility into active contract terms for over 35,000 contracts, dating back 20 years.
In general, what are the biggest obstacles individuals face when trying to expand their company, in regard to legal requirements? How will better technology improve this?
As companies expand, they often face the challenge of not having sufficient processes or people in place to tackle their legal needs, particularly when they face a hard deadline like an M&A transaction or a new regulation coming into effect. As they grow, it also becomes more important to remain fast and nimble in securing commercial relationships. The sales engine therefore needs a fast and nimble contracting process.
While we believe that our business model is well suited to solve these challenges today, we also firmly believe that technology will lower these barriers in the future, making top legal talent more accessible, rapidly sourcing a unique and in-demand skillset for a period of time, and tackling a large scale contracting challenge in really cost-competitive ways.
Take the upcoming introduction of the General Data Protection Regulation (GPDR), for example. This regulation, for which companies need to be compliant by May 2018, requires organisations to analyse which vendors access or process covered data, and which customers use the company for data processing.
If we step back and just look at the contracting work that needs to be done, we estimate that global firms have millions of contracts that need to be identified and remediated ahead of the regulation. However, less than five per cent know how many contracts need to be addressed in order to comply with the regulation. The cost of identifying and remediating these contracts will conservatively run over one billion dollars.
We’re working with quite a few companies on their GDPR readiness by leveraging AI, coupled with our deep expertise in contracting solutions and data privacy. With so much work still left to do in the next six months, taking a tech-enabled approach to regulatory response is the most cost-efficient way for companies, including high-growth ones, to identify and remediate all of the applicable contracts.
Elena Donio is Chief Executive Officer of Axiom, the recognized leader in the business of law. Through a curated marketplace, Axiom employs and then deploys 2,000 lawyers, professionals, process engineers and technologists to deliver the future of law to the Fortune/FTSE 500. Elena has over 20 years of experience in fast-paced technology companies.
Doug Hebenthal serves as Axiom's Chief Technology Officer, overseeing the company's industry-leading technology platform and opening Axiom's first R&D centre in Bellevue, Washington. Doug has more than 30 years of experience in tech, including 21 years at Microsoft, where he was a founding member of the Xbox team and an early pioneer working on the Internet. He came to Axiom from Change Healthcare, where he served as Chief Network Engineering Officer and Senior Vice President of Cloud Infrastructure, driving industry change through healthcare cloud adoption. Prior to that, Doug was a Director for Amazon's Payments Platform, leading their 160 person engineering team, processing hundreds of millions of dollars of financial throughput annually.
The 2017 UK National Risk Assessment of Money Laundering and Terrorist Financing (NRA) highlighted the money laundering risks faced by legal firms, over 10,000 of which now have fewer than ten employees. Donald Toon, Director of Economic and Cyber Crime at the National Crime Agency (NCA), explains why that means that every individual counts in the fight against financial crime.
There is no doubt that a good deal of progress has been made in the fight against financial crime in the two years since the first NRA was published by the UK Government.
The Money Laundering Regulations 2017 and the Criminal Finances Act 2017, coupled with the continued expansion of information sharing efforts with and by professional body supervisors, have tightened up the supervisory regime and created closer collaborative working between law enforcement agencies and professional service firms and supervisors.
Added to this, the Office for Professional Body Anti- Money Laundering Supervision (OPBAS), expected to become operational in January 2018, will support supervisors in helping to ensure that professionals effectively target criminal activity.
However, the release of the 2017 NRA in October shows us that there’s plenty more still to do.
Nearly all forms of serious crime, such as drug dealing, fraud, modern slavery and human trafficking are committed for financial gain. The effect of money laundering is widespread and complex, ranging from undermining trust in established organisations to disrupting communities and devastating the lives of individuals.
Criminals are becoming more sophisticated in their attempts to cover their tracks. Many are now using new types of ‘blended methodologies’ to try and stay under the radar, making it all the more important for SMEs and individual legal practitioners to be on their guard. Often these criminal practices are deliberately done at a micro level, using the services of a number of smaller firms to provide a veneer of legitimacy.
Low volumes of reported suspicions within the legal sector continue to be a concern to the authorities. , and there is room for improvement. This is particularly true of firms operating in high risk sectors, as banks and other financial institutions have been known to file a variable SAR, where reported activity has involved one or more firms from the legal sector who, despite their direct engagement with clients, have not submitted a SAR themselves.
With this in mind – and taking into account the fact that the social and economic cost of serious crime to the UK, according to the 2013 Serious and Organised Crime Survey, is more than £24 billion a year – it is vital for the health of our economy for the legal profession, particularly in the SME space, to fully engage with the SAR reporting process.
It is important to emphasise that there is no such thing as a ‘wasted SAR’. Any SAR could contain information that contributes to painting a picture of current trends or patterns. This is crucial in helping reporters and law enforcement to plan and prevent against new crime trends. A single SAR may be used several times by different users for different purposes and SARs submitted by lawyers have directly supported the successful prosecutions of criminals. They are critical pieces of the intelligence jigsaw, which not only help to tackle the scourge of money laundering itself, but are often the starting point in a journey that leads to uncovering the underlying criminality behind the cash.
However, the effectiveness of SARs is directly linked to the quality of the information contained within them. Too many reports fail to articulate suspicions accurately enough to enable any money laundering implications to be properly assessed. If the quality of information contained in the SARs submitted was improved, it would aid in making a more valuable contribution to the fight against financial crime and the harm that it perpetuates.
Far from being a victimless crime, money laundering can ruin the reputations of unsuspecting legal and other professional businesses, it distorts the labour market and even skews property prices. It undermines confidence in the UK as a financial centre and deprives the Treasury of taxation that would be used for vital public services.
On a societal level, money laundering is the fuel that feeds the drug trade and assists terrorist activities, as well as allowing criminals who commit inhumane practices such as human trafficking and modern slavery to profit from their crimes.
It is estimated that more than £90 billion worth of dirty cash could be running through our financial system each year and as key players on the frontline of the fight against financial crime, legal professionals, particularly those operating in the SME sector, have a critical role to play.
Pull out box
The Home Office, in partnership with the National Crime Agency, and through the successful Flag It Up campaign, is highlighting the risks of money laundering amongst accounting and legal professionals. The campaign wants everyone within these sectors to be crystal clear on the following red flags:
Transactions – Are there discrepancies in client transactions? Is the client involved in transactions which do not correspond to their normal professional or business activities? Are the transactions unusual because of their size, nature, frequency, or manner of execution?
Donald started his career in law enforcement in 1990 joining the then HM Customs & Excise and has worked in criminal investigation, enforcement policy and operational management for more than 20 years. He was HMRC’s Criminal Investigation Director from 2011.
An article written by Chris DeConti, Executive Vice President, Global Solutions - Axiom
Technology is rapidly advancing and has been worming its impact into the legal industry throughout 2017.
Gone are the days of writing letters and awaiting days for a response, as here is the time where AI can help with the lengthy process of due diligence; with this everchanging an exciting era, Lawyer Monthly is launching a three part series into how technology is impacting the legal sector.
To kick off the first part to our series, we hear from Chris DeConti on LegalTech.
In his book, ‘The Fourth Industrial Revolution’,[1] World Economic Forum founder Klaus Schwab describes the world as entering a new era of rapid technological change and innovation, impacting the digital, physical, and biological world. Technologies like artificial intelligence (AI), machine learning and mobile computing are becoming disruptive forces in what Schwab calls the ‘Fourth Revolution’.
These once futuristic concepts are now a growing reality and commercial opportunity – forecasts[2] indicate that global AI revenue will expand from around £6 billion to more than £35.4 billion by 2020. Adoption of LegalTech is gathering pace across a broad spectrum of industries, including legal, and specifically by in-house general counsels (GC) looking to respond to demand for quicker, more efficient services.
This is especially true of contract analysis -- for example in support of a merger or acquisition process, the administration of large leasing portfolios, or contract remediation to comply with regulatory changes like the General Data Protection Regulation (GDPR). Currently, AI can substantially reduce time and cost associated with legal work. In the future, ever more targeted contracts-related use cases and increasingly sophisticated AI will go far beyond cost-savings, unlocking value with higher-order insights that lead to better negotiated outcomes, better revenue capture and better bottom line results.
With the goal of accelerating this rate of adoption, last month Axiom and Legal Geek brought together GCs and LegalTech start-ups under one roof to discuss opportunities presented by the emergence of innovative technologies. Over even just the last few months, many strides have been made by Axiom and others to integrate AI into third-party and proprietary tools to more seamlessly deliver legal work.
At the event, Emily Foges, Chief Executive Officer for AI contract analysis platform start-up, Luminance, spoke of how GCs are looking to AI to find solutions that help them manage regulatory changes, standardise terms with clients, and stay on top of contract negotiations. She discussed how AI can be used today to address these needs, helping to absorb and analyse huge volumes of data so GCs can view information holistically rather than using sample-based models. She then went on to highlight how AI can yield unexpected findings that might have been missed in a traditional review – in one example, AI oftware found ten contracts governed by Azerbaijani law among a huge corpus of M&A documents that had not made the sample in a traditional review.
As we also know from Axiom’s own AI work, this technology is becoming increasingly sophisticated. While the current value of AI is that it can perform a certain range of tasks faster and cheaper than a human, the future promise of AI will unleash new business value and help move legal departments from cost-centres to value-drivers. As technology develops, we believe that AI can go from finding clauses to interpreting clauses and eventually to writing and negotiating clauses. Our vision is to create a level of legal technology that is capable of generating a contract without writing it, and understand a contract without reading it.
C-suites are becoming savvier and are buying into the strategic deployment of AI for enhancing business operations. The potential of LegalTech is huge and rapidly giving rise to the next “revolution.”
Chris DeConti, Executive Vice President, Global Solutions
Chris leads Axiom’s global Solutions practice, directing a team responsible for managing and developing relationships with the firm's largest clients. His team helps companies manage major corporate transactions, respond to regulatory change and adopt better models for managing risk associated with derivatives contracts. Prior to Axiom, he was part of the founding management team of the Corporate Executive Board, a best practices consultancy, and oversaw the launch of the General Counsel Roundtable, a membership of GCs from Fortune 500 and FTSE100 companies. He began his career in international corporate finance at Oppenheimer & Co. in New York after receiving Bachelor's and Master's degrees in International Trade and Finance from the Georgetown University School of Foreign Service.
[1] https://www.weforum.org/about/the-fourth-industrial-revolution-by-klaus-schwab
[2] https://www.idc.com/getdoc.jsp?containerId=prUS41878616
Senior law lecturer and barrister Peter Coe looks at the conflicting legal arguments surrounding the right to a private life at work.
I very much doubt that when Mr Bogdan Bărbelsecu created a Yahoo instant messenger (IM) account at his employer’s request to deal with customer enquiries he had any idea it would create such a storm, or would end up the subject of litigation working its way all the way up to the European Court of Human Rights (ECtHR). But it has and, in doing so, it has given us an important ruling relating to employees’ privacy in the workplace, particularly in light of the forthcoming introduction of the General Data Protection Regulation (GDPR) in May 2018.
What’s it all about?
In July 2007, Mr Bărbulescu’s employer sent a notice to all employees prohibiting personal use of the internet whilst at work. The notice also told employees that their work would be monitored. According to Mr Bărbulescu, he knew that he was not allowed to use his work computer for personal activity, but he did not realise that his communications would be monitored until after the notice had been circulated.
Not long after the notice was sent, Mr Bărbulescu’s employer began to monitor his Internet use, including how and when he used the IM account he had created. Later, Mr Bărbulescu’s employer presented him with 45 pages of private IM messages he had sent using the work account he had created. Consequently, he was dismissed.
This dismissal resulted in the litigation that ended up in the ECtHR, with Mr Bărbulescu claiming that his telephone, email and IM communications made whilst at work were subject to protection by virtue of his right to private life and correspondence pursuant to Article 8 of the European Convention on Human Rights.
What does this mean for employees and employers?
As a general rule, to determine whether Article 8 has been engaged, the court involved would consider whether the individual had a reasonable expectation of privacy. An employer’s policy, for instance, would tell an employee whether he/she has an expectation of privacy and what this looks like.
However, the ECtHR’s decision has ‘thrown the cat amongst the pigeons’. In finding that Mr Bărbulescu’s Article 8 rights had been violated by his employer the court stated: ‘…an employer’s instructions cannot reduce private social life in the workplace to zero. Respect for private life and for privacy of correspondence continues to exist, even if these may be restricted in so far as necessary.’ Therefore, for the first time, we have an unequivocal statement from the ECtHR that, regardless of what an employer says, employees are subject to an irreducible minimum right to private social life whilst at work. Ultimately, this may well result in increased litigation based on Article 8 claims.
However the judgment definitely does not mean that employers monitoring in the workplace is now illegal. To the contrary, employers have a recognised, yet qualified, right to monitor their employees’ communications. The ECtHR acknowledged, on the behalf of employers, a ‘…right to engage in monitoring, including the corresponding disciplinary powers, in order to ensure the smooth running of the company.’ Thus, in cases concerning a conflict between an employee’s right to privacy and the employer’s right to ensure the smooth running of the company (by monitoring employees communications and/or internet use), a balance must be struck using the test of proportionality.
Ultimately, if monitoring measures are challenged, then the domestic court will need to consider the consequences of the monitoring process for the employee as against the consequences for the employer. What domestic courts should consider when attempting to find this balance was set out by the court. Siân McKinley, in her excellent analysis of the judgment in November’s Counsel magazine, distills the court’s guidance, Article 35 GDPR impact assessment (discussed further below) and the relevant provisions of the Information Commissioner’s Office (ICO) Employment Practices Code 2011, into five very helpful ‘practical steps for employers’ that I agree with entirely. These steps will help employers to defend their monitoring of employees’ communications against Article 8 challenges:
The ECtHR judgment corresponds, to a great extent, with the existing ICO’s Employment Practices Code 2011 and the requirements, for certain situations at least, of the soon to be implemented GDPR. Thus, subject to the Court’s finding that employers cannot access the content of communications unless employees have been told beforehand that this may happen, employers’ monitoring practices should already conform to the ECtHR’s finding.
In respect of the GDPR, Article 35(9) requires that data controllers, where appropriate, seek the views of data subjects or their representatives on the processing. However, if this causes prejudice towards commercial or public interests or the security of processing operations, this would not appropriate. Thus, as McKInley observes ‘this appears to preserve the ability of businesses to carry out covert monitoring in exceptional circumstances’.
As a Senior Lecturer in Law Peter’s work focuses on three main activities: firstly, his research relating to two distinct areas of Media Law (i) defamation and the protection of corporate reputation and (ii) social media’s impact on freedom of expression, media freedom, privacy, data protection and reputation; secondly, his teaching and convenorship of Media Law and Criminal Law modules; and thirdly, his interest in employability and his role in developing and managing relationships with practice and industry partners.
Peter is a barrister, and Door Tenant, at East Anglian Chambers, and Cornwall Street Chambers where he specialises in general Civil/Commercial and Criminal Litigation. In 2016, as a result of his Media Law research, Peter joined international law firm Addleshaw Goddard (AG Integrate) as a consultant lawyer.
Founded in 1895 and a University since 1966, Aston is a long established research-led university known for its world-class teaching quality, and strong links to business and the professions. Aston University is located in Birmingham and at the heart of a vibrant city and the campus houses all the university’s academic, social and accommodation facilities for our students. Professor Alec Cameron is the Vice Chancellor & Chief Executive.
Aston has been a leading university for graduate employment success for over 25 years and our students do extremely well in securing top jobs and careers. Our strong relationships with industry partners mean we understand the needs of employers, which is why we are also ranked in the top 20 for graduate employability.
In September, the Solicitors Regulation Authority (SRA) issued a warning notice on tax avoidance directed law firms advising clients directly about tax or handling client matters that involve them in the design, implementation, organisation or management of tax avoidance schemes. Here Andy White, Senior Partner at CBW, one of the top 50 firm of accountants, tax and business advisers based in the City of London, examines the controversial contents of the notice in light of the government's views on tax avoidance.
There was a time, when summers were long and hot, and petty juvenile crime was dealt with by a clip round the ear from the local bobby [police], when everyone understood the authorities’ attitude to tax and more particularly to tax mitigation… (Incidentally, at that time it was far easier to understand tax itself, but that’s another story).
In those far off days, mitigation fell broadly into three categories: tax planning (perfectly legal and morally upright, according to the oft-quoted Lord Clyde), remains to this day an acceptable pursuit in the eyes of many; at the other end of the spectrum, tax evasion was, and remains, I am pleased to say, unlawful and is rightly punishable by heavy financial penalties and in rarer cases loss of liberty.
The problem lies in the middle with what is known as tax avoidance. In this area, there is no question of the taxpayer concealing facts from or lying to HMRC, but the planning involved is often contrived and artificial.
In those aforementioned times, tax avoidance was regarded as smart or shrewd. Few people knew how it worked, but there was respect, even admiration, for those operators who managed to out-smart the government.
Today, of course, the landscape is unrecognisable.
Blurred lines
The Government has mounted a sustained attack against what it calls “abuse”. It has deliberately blurred the edges between planning, avoidance and evasion such that I have heard one member of HMRC’s anti-avoidance unit proclaim that investing in an ISA is at the less egregious end of the avoidance scale; as if it can in any way be described as avoidance.
Simultaneously, a campaign has been waged to characterise avoidance as the work of the devil, in an attempt to ostracise those who engage in it. This blurring of the edges has been supported by constant demands that everyone should pay the “right amount of tax”.
This, frankly, is a ridiculous concept. “Right” by whose standards? Any law that depends for its operation on the view of the sole occupant of the omnibus on its way to Clapham cannot command the respect of the citizens who need to obey it and can only lead to judgments which are, at best, capricious.
Moreover, the definition of tax avoidance seems now to centre on whether or not the planning involved seeks to defeat the intention of Parliament. So, it now matters less what the law says, rather what Parliament meant it to say. This is a very dangerous game indeed.
Adapting to the new landscape
If one believes what is appearing daily in the more lurid press reports, there is currently only one thing on the mind of Members of Parliament, but can it be right that the law should depend for its operation on the judiciary having to second-guess the intentions of the lawmakers?
Nevertheless, this is where we are, and it is incumbent upon professional advisers to adapt to the new environment, particularly, but not exclusively, in the light of the new penalties for enablers of defeated tax avoidance.
The Institute of Chartered Accountants in England & Wales was “first off the blocks” with its amendments to ‘Professional Conduct in Relation to Taxation’ and on 21 September, the Solicitors Regulation Authority issued a “warning notice” to lawyers it regulates, advising them of its new approach to solicitors advising on tax avoidance schemes. The notice presages potentially heavy penalties for those who do not comply with a particular code of conduct in this area.
So far, so laudable. But let us just consider for a moment the content of this notice and ask whether it does the job it is supposed to do.
The notice starts with the famous statement from Lord Clyde that “no man …is under the smallest obligation…to arrange his legal relations to his business or to his property as to enable the Inland Revenue to put the largest possible shovel in his stores”, and goes on to say that this approach has now been rejected by Parliament. That in itself represents a considerable leap of logic.
The Judge’s comments merely state that tax planning is a perfectly acceptable pursuit on both moral and legal grounds and that very much remains the case today. There is nothing in the General Anti Abuse Rule (GAAR), nor indeed in any other legislation passed by Parliament, which suggests that taxpayers should so arrange their affairs so as to maximise their tax liabilities. Even applying a less literal interpretation of Lord Clyde’s words, I would go further; Parliament has still not passed any law that prevents a taxpayer from attempting to minimise his or her exposure to taxation providing that the techniques employed are legal, not artificial and are not caught by the GAAR.
As if that were not bad enough, the warning then produces this gem: “…the widespread assumption that tax avoidance is legal no longer applies”.
This is scaremongering of the worst kind. The implication is that any lawyer who has any involvement whatsoever in any type of “avoidance” is acting illegally with all the implications contained in that word.
I would submit that this is a gross misrepresentation of the current climate and the Government’s view of tax avoidance. The word “illegal” means “contrary to or forbidden by law, especially criminal law”. Tax avoidance is an activity. What the notice appears to suggest, therefore, is that the activity of tax avoidance (whether on one’s own behalf or as an enabling professional) is contrary to or forbidden by law. This is simply not the case.
It may be that certain arrangements do not have the tax outcome envisaged and as a result the taxpayer may face a claim for tax, interest and penalties but interpreting the law in a different way from HMRC and having the Courts rule in HMRC’s favour, does not render the activity as illegal.
Warming to his theme, the author of the notice then explains how follower notices and accelerated payment notices are new weapons in HMRC’s armoury in the fight against avoidance and how the new legislation penalising enablers of tax avoidance will represent a further step along this road. In the very same paragraph, he mentions the penalty regime “already in force” for those who enable offshore tax evasion.
Whether this is a deliberate attempt to blur the boundaries between avoidance and evasion remains a mystery, but the implication is clear and offensive. Many professionals are involved in tax avoidance, by offering considered opinions on one scheme or another. To suggest that there is an equivalence between them and those who facilitate tax evasion is entirely without merit or justification.
Finally, while continuing to warn against involvement in artificial arrangements, the SRA refers to a solicitor who was struck off when allegations were proved against him, including that “he declared to…HMRC…that he…had bought a property for a price lower than that which he paid…resulting in him paying too little in stamp duty land tax”. This is out and out tax evasion, and I remain perplexed as to why the reference appears in a document headed “Tax avoidance – your duties”.
While I entirely support the overall sentiment of the piece and share the SRA’s antipathy towards aggressive and artificial tax avoidance, I believe that the piece misrepresents the current climate significantly and does itself no favours by (deliberately?) conflating tax evasion, avoidance and planning.
Luke Patel from Solicitor Partner at Blacks Solicitors LLP enlightens Lawyer Monthly on what could be done to legally tackle fake news online.
The term ‘fake news’ is one we all recognise and we have all seen the dire consequences fake news can have. From false stories causing havoc, all the way to a doctored photo twisting the truth; no matter where untruthful stories sit on the spectrum of lies, fake news in the past has ruined people’s lives.
Not only can it make people believe things which are totally untrue, but it has caused a lack of trust in the media and distorted realities.
“The concept of “fake news” came to the forefront of public consciousness during the 2016 US Presidential Election campaign,” says Luke Patel, Solicitor Partner at Blacks Solicitors LLP.
With Google and Facebook clamping down on tackling this problem, the government is also under pressure to try and do something about this.
“A key question for the UK government is whether more should be done to tackle this very 21st century issue. It is apparent that the government is sufficiently concerned with this phenomenon to set up a Select Committee (Digital, Culture, Media and Sport) to explore the concept of “fake news” and the potential impact it is having on the public understanding of the world,” expands Luke.
What current legislation is there which can help victims of the effects of fake news?
Obscenity, invading one’s privacy and defamation are not always protected, but where it is not somewhat illegal, Luke Patel explains how there is specific legislation which can help.
“The UK already has specific legislation governing defamatory, offensive and malicious statements. The Defamation Act 2013 provides an avenue to pursue a claim if they can show that a false statement has been made and its publication would cause serious harm. However, it is clear that not all fake news stories would be covered by current legislation, as fake news is found in many different forms including with the aim of advertising.”
With the growth of online media and news, it is often hard to distinguish between what is true and what is false. There is also a tough line between deciphering an out of hand joke on twitter, from a purposeful, malicious statement. Governing that line is not only difficult, but how would we manage such a task?
“There is currently a lack of regulatory governance over the internet as there is no equivalent body to, say, OFCOM which regulates broadcast media including television and it may be time for the regulators to move with the times and regulate online media platforms. However, if the government does decide to increase regulation, serious issues arise as to how this would be balanced with the right to Freedom of Expression under the European Convention on Human Rights (ECHR),” says Luke.
Nonetheless, making fake news illegal would pose huge difficulty; it will question censorship, and somewhat the rights of one’s imagination. Imposing tighter restrictions could be an option, however, how do we determine freedom of speech from manipulation? “We await the recommendations of the Committee but it is a clear that there is a fine line that needs to be drawn between the right to Freedom of Expression under Article 10 of the ECHR and the creation of regulatory or statutory protection to ensure that there are effective deterrents in place to stop the influx of inaccurate news stories that are invading our news feeds.”
Until then, we must acknowledge ourselves with the key signs of fake news, to avoid spreading it and causing confusion. Ensure that the story has come from a reputable source, has been reported elsewhere on a variety of publications and websites, and the story itself is somewhat believable and is presented in an authentic manner.
Images and videos are some of the most compelling forms of evidence that can be presented in a courtroom. Yet it is important that the steps we take when preparing them stand up to scrutiny.
Within the field of forensic image and video analysis one of the biggest issues we face is the CSI effect: the phenomenon whereby representations of forensic science on popular TV shows gives a distorted perception of what is possible; from endless zooming from satellite imagery, to enhancing the reflection of a reflection of a reflection. We very often have to explain, even to “the experts”, what is science and what is fiction.
This is complicated also by the fact that sometimes we are able to extract information from images and videos where at a first glance there is absolutely nothing visible. However, very often we can’t do anything to improve images that to that average person don’t look that bad.
Recently, there has been a lot of noise about every possible application of deep learning, a subset of the field of artificial intelligence which normally exploits big data to train systems to behave more or less like the human brain.
These technologies have been used for image enhancement and there are a lot of popular studies and experiments which achieve miracle-effects, almost at the level of what you see in fiction. There’s just one big problem: these kinds of systems are not simply image enhancement or restoration tools. They are creating new images based on a best guess, which may look similar but could be challenged from a legal perspective as the result is different to the actual data originally captured. To put it in laymen terms, they are not enhancing pictures, but creating them, based on some hint from initial data.
The tenets of forensic science
Forensic science is the use of science for legal matters. To properly speak about a scientific examination, we have to follow the three pillars of the scientific method: accuracy, repeatability and reproducibility.
If we consider digital images and video, there are countless papers describing very interesting approaches to image enhancement but are not suitable for forensics. They can be very good to enhance creative photography, but cannot be applied to evidence without destroying its value. So, how can an algorithm fail to be acceptable for forensics for each of the points mentioned above?
Accuracy
We cannot use algorithms that introduce some bias, most often because they add new information which does not belong to the original image. This is in contrast with proper enhancement or restoration techniques. While often used in an interchangeable manner, there is an important difference between image enhancement and restoration.
In both cases, in general, the process does not add new data to the image, but relies only on what is already there, just processing according to some predefined algorithms. For this reason, we will never be able to obtain a readable license plate from three white pixels. We receive this request very often, this is what many expect, but we can only show better what’s already in the image or video, we cannot – and must not – add new data into the evidence.
Repeatability
Another category of algorithms which are not suitable for forensics are those which are not repeatable, like those based on generating a random sequence of values to try. However, some of these algorithms properly give very similar (even if different) results in normal situations. So, they may be used with a pseudo-random approach. In laymen’s terms, computers are not actually able to generate random numbers, but only pseudo-random sequences. If we keep the so-called “seed” fixed, we can always reproduce the same sequence and thus always get the same repeatable result.
Reproducibility
Finally, algorithms must be known and all of the involved parameters must be available. We must be able to describe the process with sufficient details to let a third-party person of relevant skills to reproduce the same results independently. So, a “super-secret-proprietary” algorithm is not suitable for forensic work.
Enhancing images for forensic use is not just about trying a few sliders and combining filters until you see something better. Are you confident the images you present within a legal investigation would stand up to scrutiny? And do you have the procedures in place to challenge digital evidence introduced by other parties?
By Martino Jerian, CEO and Founder, Amped Software
Even though there can sometimes be a stigma behind office romances, they are not illegal. What do you do, however, if you feel like a colleague is being inappropriate at work? Often causing feelings of discomfort, sexual harassment in the workplace can be a difficult situation to work through.
David Ward, an expert in employment law at Blacks Solicitors, discusses office romances and sexual harassment incidents at the office and what is legal and recommended for employers to take into account.
What does the law say about office romances?
“Office romances are not prohibited by law. To do so would probably have human rights implications. That said, an employer is entitled to expect a reasonable standard of conduct of its employees and if those who are in a relationship demonstrate conduct that falls below such acceptable standards, then disciplinary action ought to follow. It may be that such conduct falls within the realms of an informal chat or formal warning, however I have seen cases where such conduct has become highly inappropriate and even explicit/indecent, which would entitle an employer to consider dismissal by reason of gross misconduct.
“I would always recommend a full, reasonable (and sensitively handled), ACAS Code of Practice compliant investigation and disciplinary process to get to the bottom of what has happened. If the events have happened at a workplace social event or Christmas party, getting to the bottom of matters may be easier said than done.”
How are sexual harassment incidents that arise at a work Christmas party best handled?
“The media is seeing an influx of sexual harassment allegations currently, so now is the time for employers to be alive to this. Again, the ACAS Code of Practice is a good start, to ensure that any disciplinary investigation and any further action is dealt with fairly and reasonably. Such matters should be dealt with sensibly and with confidentiality in mind.
“What employers should never do, in light of recent case law on the subject, is to jump to suspend an employee due to allegations of wrongdoing, especially because of the recent gravity behind sexual harassment allegations in the media. To do so could provide an employee with a strong argument that they have been disciplined by virtue of suspension, entitling them to resign and claim constructive unfair dismissal (if they have more than 2 years’ service of course), before any disciplinary action has even been considered.”
