Jonathan Rayner's blogs

When you are lord chief justice a spot of self-deprecation tends to go unnoticed. After all, you’ve reached the top of the tree, have an unimpeachable track record and everybody hangs on your every word. Nobody’s going to take seriously your claim that you have made the most stupid observation of a whole five-day conference.

But that’s precisely what Lord Judge did at the Commonwealth Law Conference earlier this month. In the opening words of his speech to the assembled lawyers from every corner of the Commonwealth he made what he described as the ‘daftest observation of the conference’.

What he actually said was ‘this meeting has taken place in South Africa’. The observation might be ‘obvious’, he added, but it also marks a ‘triumph’ because: ‘This (conference) has happened here in South Africa where, not so very long ago, the colour of your skin, not your qualities as a human being, decided everything about the life that you would lead, and the human company that you could keep, in a country where the law itself negated the principle of equality before the law.’

He was referring, of course, to apartheid and the laws passed by otherwise humane people sitting as members of South Africa’s parliament. They legalised discrimination, making sure, for example, that black children didn’t receive as good an education as their white contemporaries - after all, they reasoned, you wouldn’t want some uppity kaffir to get ideas beyond his station.

But I digress from Lord Judge’s speech. He went on to quote a prime minister of South Africa who, at the height of the apartheid era, said: ‘Over my dead body will we allow a black man, a coloured man, an Indian man to become a Springbok, whether it be in rugby, cricket, football, you name it.’

It beggars belief that the premier of a mainstream country could say such a thing. Or does it?

I lived in southern Africa while apartheid was still going strong. I met Boers from down south, embittered white Zimbabweans and witnessed all types of unthinking racism. There was the white woman from Zimbabwe who didn’t mind that the penicillin was out of date and probably dangerous because ‘it is only for my garden boy’.

There was the white man from South Africa who watched an operetta performed by a mixed cast and was oblivious to the attractive black woman who took one of the lead roles because ‘they are like cows in the field to me’.

And there were friends of ours from the UK, the husband white British and the wife Hong Kong Chinese. She was allowed ‘honorary white’ status in South Africa, but their children were mixed race – and in theory couldn’t live in the same neighbourhood of Johannesburg as their parents. You would laugh, if it didn’t make you cry.

That was the historical context of Lord Judge’s speech and the marvel that things could have changed so much. The changes have come about in part thanks to the Truth and Reconciliation Committee, set up after apartheid was abolished.

This commission gave a voice to the victims of gross human rights violations. It also gave the perpetrators a chance to give testimony in exchange for being allowed to request amnesty from civil and criminal prosecution.

Lord Judge in his speech called for ‘eternal vigilance’, telling delegates that they must ‘never take the rule of law for granted’ because even the democratic process ‘can be subverted’ to allow dictators to take power. This is what happened in Nazi Germany, he said, when Adolf Hitler was democratically voted into office.

It also happened in South Africa, where apartheid was deemed ‘lawful’, Lord Judge said, because it sprung from laws ‘enacted by the body in the constitution vested with responsibility for creating the law’. But it was ‘state terrorism’, a law that ‘perverted the very simple principle that we are all equal before the law’.

He ended his speech with reminding delegates that the rule of law meant that the ‘poor man at his gate’ is entitled to treatment equal to that of a president or prime minister. He said: ‘The judge must be blind to prejudice: impartial, fair, balanced with a true appreciation of the common humanity which binds us all and which we have all – everyone of us – inherited. In that way we ensure equality before the law.’

Which was not a ‘daft’ observation at all.

Jonathan Rayner is a reporter at the Gazette

Follow Jonathan on Twitter

If April is the cruellest month, then March 2013 has laid claim to being quite the opposite. There has been a definite whiff of official compassion in the air.

The Home Office a few days ago (26 March) told a grateful nation that it was to relax the rules around criminal records checks, for which more than four million people had to apply in 2011-12. The new spirit of clemency follows a January Court of Appeal ruling that blanket checks for an offender’s lifetime do not comply with human rights law.

The court might just have well ruled that they do not always comply with common sense, either, because the appeal was brought by appellants including an adult job applicant who had to disclose police cautions that he had received when found in possession of two stolen bicycles – aged 11.

Otherwise, he had a clean record and was a model citizen, but was still turned down for a part-time job at a football club because of his record.

The Home Office has now said that new legislation, a statutory instrument under the Police Act 1997, will ‘filter’ certain old or minor offences from checks by the Disclosure and Barring Service (which replaced the Criminal Records Bureau). However, all violent and sexual offences, offences with a custodial sentence and multiple offences regardless of their nature must continue to be disclosed.

Adult cautions will be filtered from records after six years, while cautions and equivalents administered to young offenders will be filtered after two years. Convictions resulting in a non-custodial sentence are to be filtered from adults after 11 years and young offenders after five and a half years.

All good stuff, but one swallow doesn’t make a spring, as Aristotle said, so what other evidence has there been this month of a new willingness to wipe the slate clean?

Answer: a man successfully applied to have his name removed from the sex offenders’ register, the first time this has been achieved

It has been technically possible since April 2010, when five judges sitting in the Supreme Court ruled that sex offenders should be allowed to apply to have their names deleted from the sex offenders’ register after 15 years.

The judges didn’t say that sex offenders' names should automatically be deleted from the register. They didn’t criticise the register. It’s a good thing, they said, if it stops people re-offending. But it makes no sense keeping someone’s name on it if that someone has demonstrated that he or she is unlikely to repeat his or her offence.

And this month George St Angeli, 71, became the first convicted paedophile to have his name struck off the register.

He was released from prison on parole in May 1996 and signed on to the register in September 1997 – now more than 15 years ago - and has had a clean record ever since. Nonetheless, the police turned down his appeal, but a district judge ruled that he was a reformed character and should be removed from the register.

Cue howls of outrage from sectors of the media. None mentioned that the law simply allows offenders to apply to be removed from the register and that most of them, and certainly the worst ones, will be refused.

Former Supreme Court president Lord Philips, giving the ruling back in 2010, tried to make things clear to laymen and lawyers alike. The protection of potential victims of sex crimes is a priority, he said, but once someone can demonstrate that they no longer pose any significant risk of committing a further sexual offence, then there is no good reason to interfere with their right to respect for private and family life.

Curtailing such criminal behaviour is the important thing, not imposing draconian – and pointless – penalties on the offenders.

Which makes sense to me.

But now for the bad news: on almost the last day of this month of enlightenment – 26 March – the Ministry of Justice, supported by the House of Lords, brought us all down to earth with the Justice and Security Bill.

Peers voted by 174 to 158 to allow closed material procedure (CMP) hearings to be extended into the country’s main civil courts, in the process rejecting a Labour amendment to the bill that would have allowed CMPs to be convened only if a judge rules it impossible to reach a fair verdict ‘by any other means’.

We will now have secret court hearings from which claimants and their legal teams are not only excluded, but will also never learn the evidence and precise charges against them.

On the eve of changes to legal aid and employment law protections, justice has just got another kick in the stomach. Maybe March is the cruellest month after all.

You don’t have to be mad to work here, but it helps. That’s not a joke that you are likely to see displayed on the wall of a solicitor’s office. Mental illness is no laughing matter. And anyway, all solicitors are reasoning and reasonable, sober and sensible, and fully supportive of the Mental Health (Discrimination) Act 2013 that passed into law on 28 February.

Before a few days ago people who have had mental health issues could be barred from, for instance, holding office as an MP, company director or law firm partner. The new act sweeps away those restrictions and brings mental health legislation into line with the Equality Act, an important step towards changing attitudes towards mental illness and de-stigmatising it.

Which is all great stuff, but what has it got to do with lawyers being sober and sensible?

Well, research in the US has painted a very different picture of lawyers’ mental equilibrium. A 1991 study by John Hopkins University found that lawyers, out of 105 professions surveyed, were the most likely to suffer from clinical depression.

US federal agency the Occupational Health and Safety Administration in a 1992 report found that male lawyers are twice as likely to commit suicide as men in the general population, while research by a clinical professor at Florida State University College of Law revealed that practising lawyers exhibit clinical anxiety, hostility and depression eight to 15 times more than the general population.

Some 11% of lawyers practising in North Carolina think of killing themselves at least once a month, another piece of research revealed.

All that research was American, but things are no better this side of the pond. The Gazette reported that legal charity LawCare’s statistics for 2012 revealed that it opened 378 new case files. Lawyers most frequently sought help for stress (69% of all calls to the helpline), followed by depression (13%) and alcohol abuse (6%).

Lawyers working in litigation accounted for the highest number of calls (17%), followed by commercial (15%) and high street and private client (12%). Family lawyers and conveyancers each accounted for 10% of calls.

Closer to home, LawCare’s website gives information on how to seek help with these and other problems. Or you can call the helpline on 0800 279 6888.

Another charity, Stand to Reason, can also help lawyers. It was founded by former corporate financier and City lawyer Jonathan Naess who, after suffering mental ill-health arising from the pressures of work, decided to do something about the issue.

The charity has already worked with City firms Herbert Smith and Simmons & Simmons. Much of this work involves helping line managers and other members of the management team to understand and recognise the impact of low ‘emotional wellbeing’ – whether stress, depression or some other emotional problem – on sickness absence or performance.

Naess has the figures to back up the economic importance of emotional wellbeing. Stand to Reason worked with two divisions of a large company where sickness absence averaged around 4.5% of the 1,000 employees – costing the company £2m a year. The charity was able to transform management attitudes and understanding of the problem to such an extent that sickness absence was reduced by 15%, generating £2.47 in cost savings for every £1 spent.

So the real message is: you don’t have to be mad to work here because there are organisations out there to help you address the demons of stress, depression, substance abuse and other issues that affect your mental wellbeing.

Follow Jonathan on Twitter

We all like a good chuckle – even the high-minded hacks on the Gazette have been known to engage in badinage. But when does good-natured banter cross the line to become grounds for a discrimination or harassment claim? When does a joke stop being funny?

The answer to that last question is when it causes offence. Context is everything and if an individual feels uncomfortable or intimidated by the jokes, and if the individual makes his or her feelings known, then the office wit should put a sock in it. Or risk lumbering their employer – and in some circumstances themselves – with a tribunal claim for harassment.

But what about the more problematic areas that are encountered in the office? For example, is it OK to call your Afro-Caribbean colleague ‘black’, but an offence to call him or her ‘coloured’? Is swearing in the workplace acceptable? Can you be done for anonymously sending a colleague a card and a box of chocolates on St Valentine’s Day?

Magic circle firm Allen & Overy (A&O) asked 1,000 workers all these questions and, in a report shown to the Gazette this week, but not yet published for general distribution, found that most employees did not know the answers – or at any rate, did not know the complete answers.

This was a worrying finding given that the average tribunal award for race discrimination, for instance, is £102,259 – payable not only by the employer, but in some circumstances shared by the employee as well. It pays to get these things right.

A&O reports that 80% of the 1,000 UK workers surveyed believe that they can easily draw the line between banter and unlawful behaviour, but this is not borne out by their responses.

Some 50% of respondents say that the term ‘coloured’ is offensive to a person who is wholly or partly of non-white descent, while 38% say it is acceptable. In fact, ‘coloured’ is now generally considered offensive, with the preferred term being ‘black’. But it is not clear cut: some black workers will not be fazed at all, some may even use the term themselves, while still others will be deeply offended.

The latter, who feel strongly about the use of the term, should first make it clear that ‘coloured’ is offensive to them. If a colleague continues to use it, the offended party would have three elements for a strong harassment claim: the conduct is unwanted; it causes offence; and it relates to the protected characteristic of race.

Some 65% of the 1,000 respondents said that swearing could not be unlawful, and yet the A&O report says that if swearing is ‘persistent or targeted’ or used by a boss as a ‘means of control’, it can amount to a breach of contract. Tribunal awards for this offence can range from around £10,000 to more than £100,000.

Even the gesture of anonymously giving a colleague, male or female, a St Valentine’s Day gift can amount to sexual harassment where the conduct is unwanted. This could arise, for example, where a co-worker has told an admirer that he or she is not interested, and yet the lovesick optimist persists in his or her pursuit. The average tribunal award for this offence is £9,940, which makes it a very expensive box of chocolates.

The A&O report concludes with the statistic that 55% of workers had read their employer’s ‘dignity at work’ policy, and yet only 38% of them had received training on it. The report says that an ‘all reasonable steps’ defence would require an employer to do more than just have a policy on a shelf or on its intranet. It says: ‘Workers need regular training on its implications and their legal liability. Managers need to understand its contents, how it operates, and how to lead by example.’

Given the commercial imperatives of keeping a laugh and a joke within acceptable bounds, it is strange that businesses – law firms included – have not made dignity at work central to their practice. It has become commonplace to decry the ever-growing willingness of employees to resort to tribunals with ‘vexatious’ claims, but some employers are just asking for trouble.

Follow Jonathan on Twitter