The British Government recently signalled its intention to roll out a blanket surveillance policy that may be formally announced as early as next month during the Queen’s speech.

BIG BROTHER STATE

If such legislation is passed then personal data such as the contents of your emails, telephone conversations and internet browsing history may be recorded and tracked in real time by intelligence officials. Although the Government Communications Headquarters (GCHQ) already intercepts such data, they are only permitted to record where and when communications are made and not the content of the data itself. However under the proposed new rules Internet Service Providers (ISPs) and other internet firms such as Google and Twitter could become obligated to hand over their users’ data logs to the GCHQ allowing it access on demand.

Normally, analysts would have to formally request sensitive data during the course of an investigation and apply to the Court for a search warrant. By allowing the GCHQ to negate the need for a warrant, the British Government is creating a leviathan-esque surveillance machine capable of capturing and recording details of every e-communication transmitted in the UK.

Such a measure begs the question – what of our human rights? More specifically – what of Article 8 Right to Privacy under the Humans Right Act 1998?

The Home Office claim this move is vital if they are to tackle crime and terrorism effectively. To placate the masses they have cited the ‘contact not content’ principle is being applied; that authorised officials are only interested in who people are communicating with as opposed to details of the communications themselves.  A similar proposal was suggested by the Labour Government in 2008 but was shot down after being met with huge opposition led, somewhat ironically, by the Conservatives.

DIVIDED OPINION

Unsurprisingly, this proposal has been met with strong criticism from all corners of the UK with many likening it to the surveillance regimes currently adopted by states such as China and Iran.

Conservative lawmaker David Davis stated, “It is not focusing on terrorists or on criminals, it is absolutely everybody. Our freedom and privacy has been protected by using the courts by saying: ‘If you want to intercept, if you want to look at something, fine. If it is a terrorist or a criminal, go and ask a magistrate and you’ll get your approval.’ You shouldn’t go beyond that in a decent, civilized society, but that is what is being proposed.”

The legality of this proposal has been called into question by EU lawyers who feel that the European Commission (EC) would object on the grounds that Data Protection Directive (95/46/EC), the E-privacy Directive (2002/58/EC) as well as the Data Retention Directive would likely be breached not to mention Article 8 of the aforementioned Human Rights Act. This would not be the first time the EC has taken issue with the British Government’s policy towards online privacy.

During their campaign in the lead up to the last general election, the British Government promised to erode the state’s power and return it to the public to protect and maintain their civil liberties. This proposal represents something of a u-turn and flies in the face of policies such as the Protection of Freedoms Bill which is designed with a view to reinforcing the principles of the Human Rights Act.

Indeed, further proposals which will allow ministers to hold Court proceedings in secret involving civil cases against the British Government only serves to heighten public hostility towards the proposed measures.

The British Government is split on the issue with David Cameron and Nick Clegg airing their differences in opinion to the local public. On 3 April 2012 Mr Cameron said “As I see it, there are some significant gaps in our defences, gaps because of the moving on of technology – people making telephone calls through the internet, rather than through fixed line – but also gaps in our defences because it isn’t currently possible to use intelligence information in a court of law without sometimes endangering national security. I want us – and the Government wants us – to plug those gaps but let’s be clear, we will do it in a way that properly respects civil liberties.”

Following suit, Justice Secretary Ken Clarke commented  on the frenzy being needlessly whipped up by the media. “The hoo-hah at the moment is based on rather alarming descriptions of what we are supposed to be doing. With communications, at the moment, records of all phone calls are kept and can be accessed. You can’t listen to the phone call, if you are an intelligence man, but you can get a list of all the phone calls in the last year. If you want to listen to any of it, if you want to snoop, then you’ve got to get a warrant signed by the Home Secretary. Technology has moved on… so what is proposed is the rules nobody was complaining about when it was telephone calls should now be extended to others, with the same safeguards.”

Another bone of contention of the proposed policy are the associated costs, which industry experts warn will run in to millions of pounds, with the implementation of requiring hardware upgrades to existing surveillance servers.  This, of course, will be met either by the taxpayer or ISPs (who are likely to pass their costs onto the consumer). In any event, those making use of e-communication will be paying extra to ensure the British Government can monitor their activity more effectively.

WHAT NOW?

At the crux of the issue is striking a correct balance between monitoring and tracking criminals and engaging in ‘Big Brother’ activity thereby infringing upon our human right to privacy – something that the UK has become infamous for in recent years.

It remains to be seen if the British Government will stick to its guns and press ahead with the proposed reforms. As in 2008, public opposition is extremely fierce which may well force Mr Cameron and co into re-thinking their ideas or even backing down altogether. Whatever decision is taken, this is certainly not the last we will hear of the issue.

TANVEER RASHID

CIVIL LITIGATION

Eight years down the road with the growth of large Eastern European communities in and around London, family members of EEA (European Economic Area) nationals – spouses, children, parents and relatives – have also arrived into the U.K. to work, visit, study, live and receive medical treatment bringing with them specific immigration issues.

As an immigration practitioner, I have witnessed the steady increase in EEA-related immigration work. I discuss below two quite common problems faced by many of my client’s as well as the solutions available to them. But before I get into that, I take a brief look at the unforeseen consequences of family life in the context of European immigration law.

When the EU Treaty was being drafted, the focus was encouragement of a steady flow of EU citizens moving freely around the Union to take up jobs and/or do business – the necessary part of the free market, the overall goal of the Treaty. The rights of the family members of the EEA nationals, who themselves were not EEA, were added almost as an afterthought – a nod to the inescapable fact of mingling of cultures and ethnicities with the Member States of the Union. An automatic right of residence leading to a permanent right to reside in the member countries was thus not only granted to EEA nationals but also to the non EEA family members of EEA nationals.

Is this the brave new world that was envisaged by EU lawmakers?

Well, not really – families break up, people die or leave. It soon became clear that provisions had to be made for such occurrences and this meant adding new provisions to the existing Treaty. And, as any lawyer would tell you, this meant loopholes and inconsistencies. It is interesting how in the mind of general public a loophole is something people can benefit from – in European immigration law, a loophole means people being stuck in limbo, unable to  obtain access to jobs, benefits and support. The right legal advice and representation is vital here.

What of the two examples? Well, they deal with two most common problems faced with non-EEA nationals – going through a divorce where the EEA spouse refuses to co-operate on an immigration issue and starting a new family and bringing them into the EU. With an appropriate legal advice and representation, the first issue can be resolved. The second, for now remains a complex one.

Divorcing an EEA National – Sergei’s example

Sergei, (not his real name), a Ukrainian citizen, was married to a Latvian national living in the UK for three years. Things did not work out between the couple and the marriage ended bitterly. Sergei has not seen or spoken to his ex-wife since the divorce. The UK immigration regulations required Sergei to produce documents confirming his ex-wife’s status at the time of their divorce in order for him to be able to continue to reside in the UK. However, with no contact with his ex-wife, Sergei is not in a position to ask her for those documents and even if he was, Sergei is quite sure that she would refuse to provide these in any case.

Fortunately, there is a procedure which would allow Sergei (and people in similar situations) to require the UK Government to obtain the necessary information on his behalf – this is only fair as all the documents required for the Home Office (relating to the employment status and residence of an EEA National) are readily available from HM Revenue & Customs (HMRC), the UK tax authority. Sergei’s solicitors thus simply made two government departments (Home Office and HMRC) talk to one another and the relevant information was made available and used to help Sergei achieve permanent residence in the U.K.

Even in cases where the UK Government does not comply with similar requests, an independent judicial avenue is available to force compliance. You should make sure that your lawyer is diligent and well versed in this area of law to ensure he/she can get the job done right for you.

Getting married again – Nina’s example – Between the rock and a hard place

Nina, (not her real name), a Russian citizen, was married to an abusive ex husband of Estonian origin. Having stayed in the UK following her divorce, she met Vasily (also a Russian citizen) via the Internet. The couple fell in love and married in Moscow some time thereafter. However, this is where their troubles began – neither the EU Treaty nor the UK immigrations rules cater for such a situation.

Basically, Vasily cannot join Nina in the UK until she obtains permanent residency, which is still a few years away. Until then, the couple is forced to live their married life on a long-distance basis, with all the stress and pressure that this entails.

Nina’s solicitors have had to submit an individually-tailored application for Vasily to enter the UK on a discretionary basis. The application was granted and this has enabled the couple to be reunited far sooner than the immigration rules for non EEA nationals would ordinarily allow.

I would never recommend that Nina or Vasily try to make such an application on their own. It is highly likely that it would fail without the right legal advice and representation. Sergei and Nina have both benefited greatly from having a specialist immigration solicitor help them with their cases. Sergei has been able to put his immigration issues behind him and move on with his life, whilst Nina and Vasily have everything, except for immigration issues, to look forward to as they embark on their new life together here in London.

Dare I say it… Happily ever after?

Igor Ryabchuk

Head of Immigration at Saracens

With the UK market still suffering from the after affects of the financial meltdown, buying a property at auction is becoming increasingly popular. And why not? The hefty prices charged by estate agents are ever increasing, whereas the auction route can be considerably cheaper – and if you know what you’re doing, you could bag your dream home at a bargain!

Although expense is a prime concern for most, it is the time efficient factor which often attracts home seekers to the auction room. The ‘traditional’ route may take up to 12 weeks to complete and one runs the risk of losing the property at the eleventh hour. The fear of being ‘gazumped’ and more recently ‘gazundered’ after having your heart set on a property can become an issue. Then there are the delays caused by agents, the other side solicitors, third parties in the chain, mortgage companies etc. Not only is this distressing for some, but also very time consuming. However, when buying a property at auction, upon the fall of the hammer, the property is contractually yours. In other words the ‘exchange of contracts’ takes place when the hammer hits the gavel, legally binding all parties, in a second.

But it’s not all good news – the potential pitfalls of buying a property at auction are plenty. Professional bidders consider it a cardinal sin to enter an auction without ascertaining, in advance what their maximum budget is. It is an even bigger sin to exceed that budget, amidst all the hype and excitement of the auction room.

Survey the Property in advance

Prior to the auction date, review the auction catalogue thoroughly. If any particular property attracts the eye, visiting and inspecting that property beforehand should be an obligation – preferably with an architect or a builder. Carry out a structural survey on the property and ascertain its actual value. The cost of a full structural survey can vary between £300 to £1000 but this is money well spent. The survey report will show any defects in the property which are not always visible to the naked eye; potentially saving you thousands of pounds.

Reviewing the legal pack

And it doesn’t end there. If the interest subsists, further enquiries should be made and a legal pack requested. This pack should include the title documents and information on the property generally. A legally trained eye will be able to spot, for example, if any covenants or other burdens exist which may diminish the value of the property. It goes without saying that a solicitor, skilled in the law of property and preferably auctions, should be instructed to review the pack and provide a detailed report.

Put yourself in the seller’s shoes. Why would he / she be selling the property at auction? They may be after a quick sale, but there may be other more sinister reasons. Maybe they believe the property cannot be sold on the open market due to its defects, and that someone will buy it ‘blindly’ at auction. This is where buying a property at auction can be dangerous if you are not fully prepared in advance and do not have professional help. A large quantity of properties listed at auction (in the current market), are those which have been repossessed, eg sold by mortgage companies to raise quick money to pay off outstanding debt on behalf of the borrower. This naturally has implications. The previous owner may have had a poor credit rating and this could mistakably show up on a new purchaser’s record. Again, this is an issue that can be dealt if you know what you are doing and advised by a solicitor.

Get your finances organised early

Another potential pitfall is getting into a pickle with your finances. If a bid is successful, you are expected to pay a 10% deposit immediately with the remainder on completion. Unlike the traditional route, when buying a property at auction, completion (usually) occurs within 28 days or less. Proper planning and negotiation can allow for this date to be extended. Failure to pay the required amount on the completion date however may have serious consequences – you may lose your deposit and be liable to pay damages to compensate the seller.

If a mortgage is needed to fund the purchase, this should be agreed in principal with a mortgage company or through a mortgage broker. Remember that a lender may take as long as 4 weeks (sometimes longer) to provide you with the requisite money, taking you over the agreed completion date. Before any mortgage company / bank lends money it will want to conduct a valuation of the property which itself takes time. Further, if the amount being lent is lower than the mortgagee’s valuation, the difference must be paid out your own pocket. A shortfall at the last minute will therefore jeopardise your purchase. Do not fall into this hole. Obtaining the assistance and advice of professionals before buying a property at auction, is a must.

Bidding on the day

The auction day itself can be an exciting experience but for those new to the environment, equally daunting. Bidders with no experience are advised to proceed with caution and attend a few trial auctions before actually taking part. Beware of the nasty tricks and sleight of hands. The auctioneer may ‘bid off the wall’; ie inventing bids to inflate the purchase price. There may be individuals in the room making ‘dummy’ bids to achieve the same goal. Do not fall for this trap, stay sharp and above all, stick to your budget!

All in all, the auction room remains a great place to bag a bargain. It can save you ample time and reduce a lot of stress. But one must be careful. Do your research and be prepared.

Summary

To discuss buying property at auction (or indeed selling a property in the same way), or to discuss your options going forward, seek legal advise from our residential conveyancing team. We are recommended by a number of bank managers due to the professionalism and many years of experience within the team. Our business is built on providing clear and concise legal advice. We will do whatever we can to ensure that your transaction runs as quick and smoothly as possible, with the minimum amount of stress.

Varsha Shah
Head of Residential Conveyancing
Saracens Solicitors

Is this normal? Do the people in Finland cease to operate for the entire winter? Of course not… This is just one peculiarity that makes life in the UK so unique.

One of my thoughts, as I trekked home that night was the number of likely slips and falls among the public at large. In particular if anyone being so unfortunate would know what to do with regards recourse, including employees who were also out that night earning a living.

One would have thought that the best way of avoiding such slips would be for the government to distribute (in advance) grit on each and every road. The government’s answer to this is that the cost is so immense that the public purse would suffer hugely. Given the current economic climate and of course, if you are not the one who has fallen, one could sympathise…
Most local authorities currently grit around 40% of the main local roads. This in theory means it could cost the government over £1.5 million to grit an estimated 96,000 miles of roads in England.

Adverse weather conditions always bring in a raft of enquiries at the firm, from people suffering injuries after a fall on untreated paths and public places. Most of these claims are directed against owners of private land, employers and local authorities.

This seasonal increase following the slips and falls from adverse weather means that all employers and owners of property have an increased duty of care. They must be astute / alert to ensure their premises and work places are safe.
If a proper risk assessment has not been taken, as we say in law ‘let the owner beware’. If you are an owner of a private business, it is important that you now urgently review your risk assessments. The adverse weather change means you should be aware that there is a higher than normal chance of claims being made by people just outside your premises or even within it should snow or ice accumulate in passageways.

If you are an owner of private land, it is not necessary to clear snow or ice from the highway, which is outside your land, even if part of a local authority highway or road or pavement goes over some of your land. If you decide to shovel snow into a public path (assuming a person claiming knows you have taken such steps) and someone is injured, you may find yourself liable in negligence or nuisance. It is regarded as a public nuisance if you jam up the pavement in front of your property by brushing away the snow accumulations from your property on to a public highway.

The local authority on the other hand does have more responsibility.

It took the case of Goodes v. East Sussex County Council [2000] 1 WLR 1356, to bring in some clarification of the law. In this case “Goodes” held that section 41 of the Highways Act did not include a duty to prevent or remove the formation of ice and snow. However, as the law was not clear, the law-makers decided to insert Section 41(1A) into the Highways Act, following on from the Railways and Transport Safety Act 2003. The local authority is therefore responsible for clearing ice and snow from the public highway and pavement and to ensure that a safe route along the highway is not put in danger by snow or ice.

However, due to tight budgets, the local authority, can and do prioritise the roads and pavements which they consider should be cleared first. If you are considering a claim of this type please note, the local authority will generally rely on a standard defence that they are not liable, especially where they can show they have prioritised. It will be up to the individual making a claim to prove any negligence.

Thankfully, given the reduced volume of snow in England there have not been any further cases so it is difficult to assess which way the courts would rule in similar scenario’s, but is certainly worth consideration.
If you are an employer, you need to be on alert. You should make sure that you have a system in place for removing risks by clearing any snow and ice particularly from entrances and exits. You must also make sure that you prevent it from becoming slippery again. In short, get your gritting systems sorted out if you haven’t done so already (!).

If you feel that there is a risk to your workers you may be best advised to go back to basics with a shovel and clear the path way of snow / ice. Make sure that the landing and stairs are also clear. The law is likely to otherwise find if your employee walks or passes regularly to access the work place that this is also treated as a part of the work place. Further information on health and safety guidelines may be seen at http://news.hse.gov.uk/2007/01/24/slips-and-trips-in-icy-conditions/

Whilst some dream of snow, by the time you know it people are at risk of being injured. Unless appropriate systems are in place, it is going to be the local authority, the owner or employers insurers who foot the bill.

Ignore the regulations and you do so at your peril!

We live in a litigious society, in a recession and so for this reason, check your household liability insurance for coverage to include injuries to members of the public using your personal footpath.

Clear away the white stuff as soon as and as quickly as possible during the day or prepare in advance at night time if you know of the weather warnings. A refusal or failure to follow what can be termed as this “ice code” may mean that you could end up personally picking up the tab for any slips.

M Popat
Head of Personal Injury
Saracens Solicitors

Photo Credit: Kevin

Better Search Functionality

An overwhelming 50% of our survey respondents indicated that they’d like to see better search functionality on the site. With that in mind, we’ve introduced a prominent search function at the top right-hand side of the site that’s available on all pages. Just type in what you’re looking for and press ‘enter’.

Easy to find Contact details

20% of our survey respondents asked for better contact information. We’ve made our contact details prominent on all pages in the red bubble at the very top of the website, including our telephone number and a click-able link to our Contact form.

Quotes from Satisfied Customers

20% of our survey respondents told us they wanted to see quotes and testimonials from satisfied customers. At Saracens, we take pride knowing that every one of our customers is a satisfied customer because of the care we take in providing legal services and advice on legal matters.

Naturally, therefore we had a large stock of quotes and testimonials that we are able to show case. For all the areas of law and legal matters that we cover, we’ve added quotes from existing satisfied customers to our information page. Just click on the testimonial to read it in full.

Additional improvements

Finally, we had some additional updates and improvements of our own that we’ve wanted to introduce for quite some time.
As you may have noticed, we now have a dedicated blog section, and soon we’ll have regular posts on legal news, social commentary on legal matters and general information pertaining to all areas of law.

Of course, we’ve also updated the web site design in keeping with our quest to become the number one law firm in the UK and abroad.
In addition to the Web Design updated, we’ve added a Google Translate feature for our International Law clients

Finally…

We hope you feel we are serving you well. Do let us know in the comments what you think to the new site design and features, and if there is anything we have missed, or that you are looking forward to. Or if you just want to stop by and say “hello”, please feel free. We want to make this a premier portal for law information for everyone.

See you in the comments!

By instructing solicitors in Landlord and Tenant Act matters, the strain of such proceedings is taken away.  The complexity of the Landlord and Tenant Acts means that it more sensible to instruct solicitors who will be able to interpret the law and advise as to whether or not any breach has occurred.  By instructing a solicitor as early as possible, a clear, concise assessment as to the merits of the case can be made and this will allow for a realistic opinion as to the chance of success under the Landlord and Tenant Acts.

A few of the examples of the types of landlord and tenant claims that may be made under the Landlord and Tenant Acts include:-

• Problem tenants – where the tenant has not paid rent or is acting unreasonably;
• Where there has been a breach of the tenancy agreement by either the landlord or the tenant;
• How to end a tenancy;
• How to evict a tenant during a fixed term tenancy or after it has expired. Under the Landlord and Tenant Acts landlords are not legally allowed to remove tenants themselves from the property tenants. Landlords must not also change any of the locks either.  Any attempt to do so, could result in the tenant bring an action for harassment or unlawful eviction under the Landlord and Tenant Acts
• An unlawful eviction of the tenant by the landlord.

Landlord and tenant law is a specialist area of law.  It is therefore important that the landlord or tenant to instruct solicitors who will be able to interpret the Landlord and Tenant Acts and advise as to the best solution possible.

The rules, rights and obligations that both the landlord and tenant must follow are set out in the Landlord and Tenant Acts.

There are a number of different types of tenancies that exist.  The Landlord and Tenant Acts cover both residential and commercial tenancies.  The ones which relate to residential properties are set out in the Landlord and Tenant Act 1985 and the Landlord and Tenant Act 1987.

The three most common types of residential tenancy agreements are:-

• Assured Shorthold Tenancy (AST) – the most common tenancy agreement that is used in most residential lettings;
• Assured Tenancy – this is where an AST does not apply;
• Regulated Tenancy Agreements – these give more rights than an AST but a tenant must have moved into the property before 15 January 1989 and must not be living in the same building as the landlord and must also not receive any other services by the landlord

The obligations set out in the Landlord and Tenant Act 1985 is very important for a landlord.  Under the Landlord and Tenant Act 1985 if a tenancy has been granted, the landlord must provide the tenant with a rent book, ensure that the property is suitable for living in and there are set provisions for maintaining the property in relation to repairs and collecting service charge.

Section 11 of the Landlord and Tenant 1985 sets out what repairs and maintenance the landlord should carry out if a tenancy has been granted.

If a property is rented out by way of a tenancy agreement, then under the Landlord and Tenant Act 1987 the tenant has the right to first refusal if the landlord decides to sell the property.

By carrying out such checks, there are two clear benefits for the risk-aware financial law service business.  In the first instance, the business is not in any way exposing itself to any risk by criminals seeking to launder money.  Secondly, it allows the business to obtain detailed knowledge of the customer’s financial position.

Strict legal and regulatory requirements have been imposed upon solicitors providing financial law services to contest money laundering and require financial law service providers to Know Your Customer (“KYC”).

KYC is the process by which financial law service providers are able to check the identity, background and other aspects of existing and new customers. This is required under the Anti Money Laundering Regulations (“AMLR”).

Solicitors providing financial law services do not want to breach any legislation or the AMLR as the consequences are severe and usually include expensive costly investigations and large fines. Although strict foundations have been laid in terms of customer due diligence and complying with AMLR within the financial law services sector, stricter measures are being imposed which require solicitors to adopt a high level risk-based approach.  This will allow for solicitors in the financial law services to cement a sound basis right at the outset of forming a customer relationship.

During this difficult economic time that we are all facing, the burden on solicitors in complying with AMLR is very high and therefore high quality KYC requirements must be in place for any firm providing financial law services to enable them to complete customer due diligence as quickly and as effectively as possible

Anti money laundering is a term that is used by businesses that fall within the financial law service to describe the measures that have been taken to stop this illegal activity.

Anti money laundering regulations (“AMLR”) is a term mainly used in the financial law services industry to describe legal controls that have been imposed upon financial law service providers and other regulated entities to prevent their systems being used by criminals and the duty imposed to report on any suspicious money laundering activities.

All businesses including solicitors providing financial law services that are covered by AMLR, have to put in place suitable anti-money laundering controls.  Further all businesses covered by AMLR and providing financial law servicesmust be supervised by a supervisory authority.  For solicitors, this would be the Law Society.

Today, most financial law service providers and many non-financial law service providers are required to identify and report transactions of a suspicious nature.  For example, a solicitor must perform customer due diligence by verifying a customer’s identity and monitor transactions for suspicious activity.  This is required, as providing financial law services, solicitors have a duty to protect themselves against any criminal activity by a launderer.

Customer due diligence means taking steps to identify customers and checking they are who they say they are. To do this, the following must be obtained from the customer:-

• Their full name
• Their passport or full UK driving licence
• A utility bill or bank statement that confirms their residential address

The Defamation Act 1996 itself does not state that a defamation case must be heard by a jury.  Under the English legal system most civil cases are usually heard by a judge alone, but defamation cases will be tried by a jury as well.  Ajury either makes a decision or makes findings of fact that a judge will then apply to the case in question.

The defendant in such a defamation case usually seeks reliance on one of the defences that are contained in the Defamation Act 1996.   The most relied upon defences under the Defamation Act 1996 are:-

1 Innocent publication – this was created by Section 1 of the Defamation Act 1996 to show that reasonable care was taken by the defendant before making the statement which they believed to be true at the time of making it;

2 Offer of amends – under Section 2 of the Defamation Act 1996 a defendant can offer to pay compensation if a defamatory statement was made.  It is then up to the claimant to prove that the statement was not true;

3 Limitation of time – Under Section 5 of the Defamation Act 1996, the limitation period for defamation actions is one year and the claimant must bring a claim within this time.

If the jury finds that the statement in question was defamatory and there is no defence for the defendant under the Defamation Act 1996 they will then decide how much damages should be paid to the claimant.  However, juries have often been criticised for having awarded damages which are far too excessive, thus raising the question as to whether these cases should be tried by a jury at all.