the times | Thursday November 26 2020 1GM 59
Lawyer of the week Helen Stone
Helen Stone, a solicitor at Hickman
& Rose, acted for the charity
Inquest as an intervener in the
Supreme Court. The charity
successfully argued that, as the
standard of proof required for a
ruling of suicide at an inquest
is the civil rather than the
criminal level, unlawful
killing conclusions should
also be reached on the
balance of probabilities.What were the main
issues in this case? To
explain to the court
why, if it intended to
lower the standard
of proof in suicide
cases from the
criminal standardof beyond reasonable doubt, it should
also do so in cases of unlawful killing.
This was my first Supreme Court case
as lead solicitor and working
alongside the fantastic Adam
Straw as counsel was an
enormous help.What is the best decision
you have taken as a
lawyer? Choosing to
specialise in human rights
law as it relates to the
criminal justice system.
It can be tough,
but incredibly
rewarding.Who has
inspired you in
your career?My mother, who was the first in
her family to go to university and
became a solicitor at a time when far
fewer women entered the profession.
As well as just about everyone I
work alongside.What is the oddest thing that has
happened to you in the law? On long
train journeys during one case, junior
counsel and I were regularly posed
ethical dilemmas by leading counsel;
it turned out he wasn’t simply testing
our moral characters, it was
background research for a book.What is the best advice you have
received? In the musical Hamilton,
the star is advised to “talk less; smile
more”. Knowing when — and when
not — to make a particular point is akey legal skill, and it’s advice one
cannot hear too often.Which three qualities should a
lawyer have? Empathy, diligence,
and being sufficiently self-aware to
recognise that you may be wrong.What law would you enact?
Automatic non-means-tested legal
aid for representation of families at
inquests after a state-related death.
Families did not ask for the process;
there should be equality of arms.How would you like to be
remembered? As someone who
made a positive difference.Linda Tsang
[email protected]In conversation
Philippe Sands, QC:
‘The Nuremberg
trials changed the
legal world for ever’
thetimesbrief.co.ukexclusive to members
Mind the gap Equal pay
fight must not be forgotten
Home comforts Remote
work can benefit disabled
Data dominoes Watch out
— the law is changing fast
thetimes.co.ukpeople to rely on their religious
motivation as a reason not to obey
laws of general application.
A somewhat similar decision
was arrived at by the Supreme
Court in the UK in a 2009 decision
about a Jewish faith school whose
recruitment policies discriminated
in favour of children born to
Jewish mothers.
Oral argument in the US Supreme
Court is not always a good guide to
the ultimate result, any more than it
is in the Supreme Court here. But
judicial interventions at the hearing
suggested a degree of hostility to
the city of Philadelphia’s position.
Justice Alito went as far as to
suggest that its argument was really
a disguised attack on freedom of
conscience. “The city can’t stand
the message that Catholic Social
Services are sending by continuing
to adhere to the old-fashioned view
about marriage,” he said.
There are many problems about
a court of judges whose selection is
overtly political. One of them is that
decisions such as Fulton tend to be
seen — rightly or wrongly — as
depending on the personal
preferences of the judges rather
than on strictly legal analysis. ItALAMYWill Trump’s pick sway Supreme Court?
T
he nomination of Amy
Coney Barrett to the
US Supreme Court has
provoked much curiosity
about the fate of some
of the court’s landmark liberal
decisions. Have we reached the
turning point?
One of the side-effects of the
politicisation of appointments to
the US court is the large number
of Catholics on the bench. In the
1930s the litmus paper test for
distinguishing between liberal and
conservative justices was to ask
their views on state intervention in
the economy. In the 1950s and 1960s
it was civil rights and racial equality.
Yet for the past half century it
has been abortion, gay rights and
same-sex partnerships. These are
issues on which the Catholic Church
and many of its members have
strong and generally conservative
views. Republican presidents
looking for reliable conservatives
to appoint tend to find them among
Catholic lawyers. There are at
present six Catholics among the
nine justices, five of whom belong
to its conservative wing.
We may be about to discover
whether this matters. Three weeks
ago the court heard arguments in
Fulton v City of Philadelphia and
judgment is expected next year. The
facts of the case press some of the
most sensitive buttons in US politics.
The city of Philadelphia has
stringent anti-discrimination laws.
Among other things, it is illegal for
adoption agencies to have a policy
against adoption by same-sex
couples. An adoption agency called
Catholic Social Services (CSS)
refused to comply, so the city
stopped referring children to it for
adoption. The Catholic Church has
sought exemption for its adoption
agencies and has been refused. CSS
is challenging that decision on the
ground that it is unconstitutional.
It is, it says, a law that restricts the
adds to the impression that such
decisions are essentially legislative
rather than judicial.
It is difficult to regard as law
a decision so sensitive to the
personal views and backgrounds of
the present generation of justices
that it would have gone the other
way if the point had come up a few
years earlier or later before
a differently constituted court.
Remarkably, given its
longstanding legislative tendencies,
the US Supreme Court still enjoys a
high reputation among Americans,
even if there are misgivings about
some of its members. One reason is
that recruits are often absorbed
into its collective culture, as with
any great institution.
Preserving its reputation is a
much more powerful instinct when
you are in it than it was when you
were sniping at it in the pages of
newspapers or academic journals.
It is the reason past decisions such
as Roe v Wade, which legalised
abortion, and maybe Employment
Division v Smith, have a way of
surviving even in the most hostile
judicial environments.
President Eisenhower nominated
Earl Warren to the Supreme Court
because he was a conservative
Republican, only to find that the
“dumb son of a bitch” presided over
some of the great liberal decisions
of the century. Warren had an eye
to the prestige of the court and its
place in American society.
John Roberts, the present chief
justice, whose instincts are similar,
has several times disappointed his
supporters. Appellate courts are
notoriously difficult institutions
to stuff. There are politicians in
Britain who would do well to learn
that lesson.Lord Sumption is a former justice of
the Supreme CourtJonathan
SumptionA protester shows her support for President Trump’s Supreme Court nomination
at a march in Washington this month claiming that the election had been rigged“free exercise of religion”, contrary
to the first amendment of the US
constitution.
Part of CSS’s case is an attack
on a 1990 Supreme Court decision,
Employment Division v Smith. The
legal issue there was similar,
although the appellant was
politically less appealing.
Smith lost his job for taking
peyote, an illegal hallucinogenic
drug. The state of Oregon rejected
his claim for unemployment benefiton the ground that he was
unemployed as a result of his
criminal acts. His answer was that
the use of this particular drug was
part of the religious services of the
Native American Church, to which
he belonged.
The majority judgment was
delivered by the great panjandrum
of the conservative legal world,
Antonin Scalia. He held that the
first amendment did not allow‘Past decisions have a
way of surviving even
in the most hostile
judicial environments’
Bean counters
get greedy
British companies are ditching
traditional law firms and choosing
to get legal advice from the
Big Four accountancy practices,
according to a report published
this week.
Research from Thomson
Reuters found that the amount
companies spent on “alternative
legal service providers” in the UK
had risen by 13 per cent in a year.
The increase elsewhere in Europe
was about half that, at 7 per cent.
The research was based on 2,500
interviews with corporate counsel
across the UK, the US and Europe.
There was a sobering development
for all of them — the researchers
found that only 2 per cent of
businesses expect to increase their
legal spending this year.At least Boris is loyal
Eleanor Sharpston, the former
UK advocate-general at the Court
of Justice of the EU, sought to
challenge the ending of her tenure
owing to Brexit, but was told her
claim was inadmissible. Giving a
lecture to Middle Temple remotely
this week, she said her treatment
represented “an intrusion into the
independence and autonomy” of
the EU’s supreme court that left
her feeling “bruised and shaken”.
If she takes her case to the
European Court of Human Rights,
which she indicated she may, she
will make a formidable claimant.
In his introduction, Lord David
Anderson, QC, revealed she has a
black belt in karate and a Siberian
dog, Boris, who has a Facebook
page with her other dog, Rudy.Sumption’s gumption
The recent obituary in The Times
of Sir Robert Johnson, QC, a
former High Court judge who
believed that barristers should
dress smartly, triggered a second
anecdote regarding the sartorial
habits of Jonathan Sumption, QC,
during his time in practice before
joining the Supreme Court bench.
Dinah Rose, QC, took to Twitter
to recall one of the Bar’s biggest
brains. “He arrived late in court,
wearing his clerk’s shoes, because,
he explained, he had discovered
on arrival in chambers that he
was wearing gardening boots. He
then gave an effortlessly brilliant
winning performance.”OUT OF COURT
The cases, the chatter, the chaos:
what’s really going on in the lawGoing swimmingly
Swimming caps off to Christina
Morton, an employment tribunal
judge and Withers lawyer. As part
of the firm’s “world tour”, in which
lawyers will virtually travel the
23,000 miles between their offices
while staying in their own areas,
she’s raising cash for the Mental
Health Foundation in the UK,
Feeding America in the US and
Mother’s Choice in Hong Kong.
She has swum 200 chilly miles in
Brockwell Lido, south London.