barrister magazine
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The largest independent magazine for barristers in the UKTRANSCRIPT
3
the barristerISSN 1468-926X
price £3.0012th January 2009 - 19th March 2009
Features
editor: nigel simmonds0870 766 2715email: [email protected]
publishers: media management corporation ltd
publishing director: derek payne
design and production: Alan pritchardemail: [email protected]
printed by: newnorth, milton Keynes
#39
p.20
The Constitution Committee
The House of Lords Select Committee on the Constitution
which I chair, was formed in 2001 in response to
a recommendation by the Royal Commission on the
Reform of the House of Lords. It is unusual among
committees in that it performs a dual role: scrutinising
legislation and conducting longer policy inquiries into
matters of constitutional importance.
Relations between the executive, the judiciary and
Parliament1
In July 2007 the
Committee published
its report on Relations
between the executive,
the judiciary and
Parliament which
analysed the evolving
c o n s t i t u t i o n a l
relationships between
the three arms of
the state and made a p.32
News
It is important that government and ministers understand and respect the vital independence of our judiciary
HiLArY TerM iSSUe
eSSeNTiAL reADiNG FOr BArriSTerS
www.barr istermagazine.com
LORD GOODLAD Chairman of the House
of Lords Constitution Committee
Bespoke tax advice for barristersChancery Lane, Londonwww.haysmacintyre.com
p.21
Study into local legal advice announced
Est. 1999
The Wood Review:Tough Love for the BVCThe Panel established by the BSB to review the
BVC and chaired by Derek Wood QC published
its report in July 2008, and all stakeholders –
regulators providers, practitioners, prospective
students and those advising them – are now
getting to grips with its recommendations.
These were comprehensive, in some cases
radical, and certainly reflected the range and
apparent seriousness of allegations to which the
review had been addressed. As listed in Chapter
5, they read rather like a bill of indictment: the
recruitment of too many students (numbers had
grown by 30% between 2003/4 and 2007/8);
for too few pupillages (a 5% reduction over the
same period); students who were unaware of
the risks they were running when they signed
up for an extremely expensive course; content
that was insufficiently challenging, realistic and
specialised to meet the needs of modern practice;
teaching standards that were too low; and a pass
level which was lower than any professionally
recognisable threshold of competence, even for
pupillage.
For providers this must have been depressing.
It might also have been somewhat perplexing,
because over the last ten years the BVC has been
subject to almost constant external scrutiny.
Its current content was prescribed in some
detail, via the so-called “Golden Book”,
by the Elias Working Party as recently as
2000. Since then, major aspects of the
12
16
p.10
Consultations on payment of Crown Court defence costs
Fears over the Future oF the court service and concern over justice budget cuts
The reports in October 2008 of cutbacks at the Ministry of Justice are the latest measures taken by the Government to reduce the expenditure on the justice system as a whole. These are not the first budget cuts which are likely to have an impact on the workings of the justice system in england and Wales.
By paul Marsh, president, Law Society of england & Wales
LegaL gLobaLization: an expanding picture
While the picture might be expanding, is a uniformity of legal practices spreading, thereby contracting the diversity of law worldwide? Building on the last issue of The Barrister, we continue our investigation into legal globalization and consider in particular the effect different jurisdictions are having on each other.
By Alistair King of Justis publishing
enhancing the participation oF chiLdren in FamiLy proceedings
The issue of whether or not children should have the opportunity to play a greater part in proceedings where decisions will be made which will affect the rest of their lives is becoming the subject of increasing debate.
By Nicholas Crichton, district Judge, sitting at the Inner London Family proceedings Court
03the barrister
Fears over the future of the court service and concern over justice budget cutsBy Paul Marsh, President, Law Society of England & Wales
The reports in October 2008
of cutbacks at the Ministry
of Justice are the latest
measures taken by the
Government to reduce the
expenditure on the justice
system as a whole.
These are not the first budget cuts which are
likely to have an impact on the workings of
the justice system in England and Wales.
The courts and legal aid system have been
at crisis point for some time, so there is no
scope for further cuts without cutting into
vital public services.
The Court Service itself has suffered from
years of underinvestment, and we badly need
sustained investment in court staff and their
supporting infrastructure. Job cuts and the
abandonment of longer-term programmes
to modernise court infrastructure are not
the right way forward for court users or the
wider public interest. A modern, efficient
court system is essential to the well being of
the economy as a whole.
Legal Aid
There are ongoing concerns about the
possible impact on the legal aid budget of
the budgetary pressures that have been
revealed. We already know that the Carter
reforms have led to the Government making
significant savings as against the previous
trend lines for legal aid expenditure, and we
have received repeated assurances that the
Ministry believes that legal aid expenditure is
now sufficiently under control that no further
cuts or restructuring will be required beyond
those proposals already signposted, such as
for Crown Court means testing, private law
family litigation and family advocacy.
Moreover, in the light of the Ministry’s
willingness to reach a deal with QCs that
increases the payments to the highest paid
barristers in the system – albeit on the basis
of arrangements that should be cost neutral
– it would be politically very difficult for the
Ministry now to make cuts elsewhere that
impact on solicitors or clients. In the light
of the unequivocal assurance from Justice
Secretary, Jack Straw, that this settlement
was affordable, any cuts to the system that
impacted upon the solicitors profession
would be viewed as a significant breach of
faith by the Ministry.
The cuts in staff at the Legal Services
Commission (LSC) do give some cause for
concern to barristers as well as solicitors.
Practitioners frequently complain about delay
in their dealings with the Commission, and it
would be very damaging if the effect of these
cuts was to increase delays.
The delays in responding to case plans in very
high cost family cases are exorbitant. During
the credit crunch, it is more vital than ever
that bills are processed and paid promptly.
It would not be acceptable if these matters
were addressed at the cost of introducing
new delays in parts of the system that are
currently reasonably efficient.
Having said that, this could represent an
opportunity for the profession. The LSC
needs to recognise the limits on what it can
reasonably achieve, and to tailor its activity
accordingly. This may require a reduction
in the information it demands from firms,
to reflect what it genuinely has the scope
to process. There is no point in demanding
huge amounts of information that are never
processed and don’t add value to the planning
and/or accountability of the system.
It may involve radical downsizing of its
audit policy. In theory, since a peer review
result lasts three years, every firm should
be reviewed no less often than once during
the life of each contract. In practice, the
LSC is able to achieve only a fraction of this
target. The system needs to be designed
in accordance with what the LSC can
realistically do in practice, not what it would
like to do in an ideal world. This applies with
equal force to the design of the scheme for
quality assurance for advocates.
It will hopefully involve the devolution of
much greater powers to the lawyers and
advisors to take the steps professionally
necessary on a case. At present, firms have
to undergo a degree of micromanagement on
individual cases that would be hard to defend
even if the LSC did have the resources to do
it effectively.
In terms of proportionality of cost to result,
and in terms of the delay caused in delivering
the service to clients, this level of involvement
in individual cases must end. The LSC’s job is
to manage the system, not to manage every
case within it.
Even totemic projects such as CLACs and
CLANs and Best Value Tendering need to be
carefully considered. They require huge costs
in order to deliver rather speculative benefits.
With the current budgetary pressures, are
these really more important than maintaining
the current day to day service to clients?
I have been extolling to the profession the
concept of the Business of Law – a central
theme of my presidency - encouraging law
firms to run efficiently and follow sound
business principles. Many have risen to
that challenge. Perhaps the LSC needs very
speedily to adopt the same principles.
Technology
More than 10 years after Lord Woolf, in his
report on access to civil justice, expressed
his 'conviction that sensible investment in
appropriate technology is fundamental to the
future of our civil justice system' the possible
abandonment of the Court Service's flagship
proposals to introduce electronic filing and
document management (EFDM) systems to
04 the barrister
the civil and family courts is depressing. It is
also short-sighted.
The pace of technological change is
accelerating and Lord Woolf's expectations
for technology in the courts now seem as
retrospectively modest as they are unfulfilled.
It is easy to forget, to take just one example,
that back in 1996 a good Pentium PC with an
800 Mb disc and running Windows 95 would
have cost a law firm around £2,200! The
world has changed. The courts have barely
changed. In essence they are still hugely
paper-based and relatively inefficient.
If the government is not prepared to make
significant investment in the technological
infrastructure and back-office processes
of the courts now, the position can only get
worse.
In the first place, a cutback in such essential
infrastructure appears inconsistent with
a proclaimed policy of fiscal stimulus to
ameliorate recession. Secondly, the court
system will suffer further relative decline
both in relation to alternative jurisdictions
and in relation to our rising expectations. The
government knows this.
Civil Justice 2000 was subtitled 'A vision of
the Civil Justice System in the Information
Age'. It argued that 'for too long Government
departments have lagged behind the private
sector in the innovative and effective use of
new technology'. It identified the impact of
the internet on business and suggested that it
was necessary to 'look ahead in order to plan
and develop the future share of the justice
system in the information age'. I agree. At a
time when solicitors are embracing a range of
new technologies to compete as effective and
efficient businesses in the delivery of services
to their clients we need the government to
match its earlier vision and rhetoric with
action. Now is not the time to cut much
needed investment in the courts.
Virtual Courts
Virtual courts, one initiative where the courts
have looked to implement new technology,
unfortunately risks lowering the quality of
justice in our courts.
We are extremely concerned about the
potential for waste in the virtual courts pilot,
a project led by the Office for Criminal Justice
Reform (OCJR).
Planned for implementation in early 2009, it
will require the kitting-out of 16 custody suites
in London and Kent with video conferencing
equipment to enable defendants to 'appear'
at their first hearing in court.
There are enormous practical difficulties
and additional costs that this new way of
conducting court hearings, which will be
extended to include out-of-hours work, will
cause defence lawyers, which have only just
adjusted to the post-Carter world of fixed fee
cases to be dealt with in the one court centre,
with no additional travel and waiting.
The Law Society also has concerns about the
quality of the justice that will be delivered
remotely, and we very much doubt that the
supposed benefits - said to be savings arising
from fewer defendants failing to appear and
reduced police transport costs - will make the
very conservative estimate of £8.7 million,
as set out in the OCJR's business case,
worthwhile.
While it is acknowledged that video
technology is used to good effect in dealing
with administrative and appeal hearings,
here we are concerned with a person's
first appearance after arrest, when issues
such as release on bail are considered, and,
increasingly, pleas are required to be entered,
often when the person is not in possession of
proper disclosure and may not have received
any, or sufficient, legal advice.
We would politely suggest that before spending
large amounts of money on this costly
experiment, the fate of the 2002 Extended
Court Sitting Hours Pilot, otherwise known
as Night Courts, should be considered, and
the virtual courts pilot dropped, or, possibly,
confined to rural areas where there may well
be advantages to all involved in the criminal
justice system, not least the defendant.
Conclusion
The Law Society, and I am sure many other
representative bodies in the legal profession,
are ready to engage in constructive dialogue
with the Ministry on the on-going budget cuts
and state of our justice system. I made this
clear in my letter to the Justice Secretary
when news of the latest cut backs emerged.
The government must draw on the expertise
of the profession and others with day-to-day
knowledge of the working of the courts. We
must all be united in defending the justice
system.
Paul Marsh, President, Law Society of
England & Wales
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06 the barrister 07the barrister
Moves in mediation: confidentiality, the EU Directive and regulationBy Tony Allen, Solicitor, Mediator and Director of CEDR and Professor Karl Mackie, Barrister, Mediator and Chief Executive of CEDR
Confidentiality is at the
heart of the mediation
process. Because parties
feel safe from commercial
exposure or assumptions
of weakness drawn from
signals of readiness to compromise, they
attend mediations, parties talk directly to
each other in a way that litigation makes
virtually impossible, they disclose secret
positions to the mediator, they indicate
willingness to move from strongly expressed
litigation positions, they make offers to
each other and discuss alternative ways of
mending business relationships. Insurers
and defendants apologise and empathise
with injured claimants and often move huge
distances from their on-the-record positions
to achieve risk-moderated solutions. None
of this would happen if the parties did not
feel safe in doing so. There is no doubt that
this is a process which works and delivers
results.
But we need to be clear both about the
present situation in law and whether it needs
amendment. The imperative to do so lies
in the requirement of the EC Directive on
mediation that the UK legislates by 2011
to implement the relatively minimum
standards it sets for cross-border mediation.
With huge pressure on the legislative
timetable, mediation is unlikely to get much
Parliamentary time, especially if the topic
is limited to the minority activity of cross-
border mediation. The changes we make
to meet the Directive’s requirements almost
certainly will be applicable to mediation
generally.
While we may already just about meet
the Directive’s requirements on quality,
education, and enforceability of mediated
outcomes, and while we may feel resistant
to suspending limitation periods during
mediation (mainly because we fear satellite
litigation about when a mediation starts and
ends), we cannot escape consideration of the
reform of mediation confidentiality. Article 7
(headed Confidentiality of mediation) reads:
1. Given that mediation is intended to
take place in a manner which respects
confidentiality, Member States shall ensure
that, unless the parties agree otherwise,
neither mediators nor those involved in the
administration of the mediation process
shall be compelled to give evidence in civil
and commercial judicial proceedings or
arbitration regarding information arising out
of or in connection with a mediation process,
except:
(a) where this is necessary for overriding
considerations of public policy of the Member
State concerned, in particular when required
to ensure the protection of the best interests
of children or to prevent harm to the physical
or psychological integrity of a person; or
(b) where disclosure of the content of the
agreement resulting from mediation is
necessary in order to implement or enforce
that agreement.
This is a very watered-down version of
what appeared in the previous version of
the Directive. Mediators and providers were
previously placed under an absolute bar over
giving evidence about:
• Party invitations or willingness to
participate in a mediation;
• Anyparty’sstatements,admissions
and settlement proposals made during a
mediation;
• Any mediator proposal for
settlement and any party’s expression of
willingness to accept it; and
• Any document prepared solely for
the purpose of a mediation.
The earlier draft went further by providing
that any such evidence could not be ordered
by a court to be given by anyone else who
had attended the mediation (remembering
that the mediator is absolutely barred
anyway) and if offered should be treated as
inadmissible, in both proceedings related to
the mediated dispute and also other litigation.
It could only be admitted to the extent
required to implement or enforce a mediated
settlement agreement; for overriding public
policy reasons; or where the mediator and
the parties agree. It also provided that
otherwise admissible evidence would not be
rendered inadmissible simply because it was
used in a mediation.
So it not only gave absolute protection to
mediators from being compelled to give
evidence, but also restricted the content
of evidence that anyone could give about
what happened at the mediation in any later
proceedings, a far cry from the qualified
protection to mediators given as the only
component of mediation confidentiality in the
Directive’s final form.
Of course we have no such statutory
protection for mediators at all in English
law, merely a contractual undertaking by the
parties not to call the mediator or mediation
provider as a witness. So we need legislation
to achieve even this limited requirement.
But do we need more, and is the current
law clear enough? I suggest that we need
to establish a higher standard and greater
clarity.
Recently judges have either felt able or
been invited to consider what happened at
a mediation, something which is unsettling
for mediators who are used to assuring
parties and their advisers at the outset
of the process that what happens at the
mediation is off the record and not available
to a judge. As a matter of practice, I now
qualify this by saying that it is unavailable
unless you all consent to tell the judge what
happened, reflecting that the parties have
a joint, but not a several, right to waive
“without prejudice” privilege. In several
recent cases this seems to be what happened.
For instance in both Chantry Vellacott v
Convergence Group and Malmesbury v Strutt
& Parker, the parties told the judge what they
had offered each other during the mediation,
enabling the judge to find that one of them
had been unreasonable in his stance. On
the other hand, in Reed Executive v Reed
Business , the court would not go behind
without prejudice correspondence when
considering a costs award, and in Cumbria
Waste Management v Baines Wilson, the
judge would not permit solicitor defendants
to have access to mediation material
generated at a previous mediation to settle a
dispute between the claimants and DEFRA,
because DEFRA declined to waive privilege
or their contractual right to confidentiality
of the process. In Brown v Rice and Patel,
the judge held that he was entitled to
look at what happened at a mediation to
decide whether settlement terms had been
agreed, even though one party and indeed
the mediation provider objected, and even
though it was clear that no written settlement
agreement had been produced, as required
by the mediation agreement.
No one wants there to be confusion about
what contractual confidentiality and “without
prejudice” privilege mean in relation to
mediation. It will unsettle what is a very
useful process. On the whole there has been
no difficulty about it, but harder cases are
emerging which call for clarification of the
law. To what extent, and from whom, can a
court receive evidence to support or defeat
a claim by a party that their lawyer under-
or over-settled a case in mediation? Can a
third party claimant get access to mediated
settlement discussions if the parties object,
even if affected by the level of settlement (such
as a sub-contractor affected by settlement
between the client and main contractor, or an
earlier lawyer being sued for the difference
between the settlement figure and some
objectively higher appropriate level)? How
precisely may a party, who settles on the
basis of a material misrepresentation made
during a mediation or subject to a threat,
unstitch that settlement? Is it possible to sue
a negligent mediator when this would involve
revealing what the mediator did behind the
veil of confidentiality? Is there a distinction
between contractual confidentiality – which
normally is no bar to court investigation –
and “without prejudice” privilege, and if so
how do they interact?
Such problems have already emerged for
consideration in the US and Australia, in
particular, and some fine distinctions are
being drawn. The Uniform Mediation Act in
the US suggests hearings in camera to sort
out such issues before mediation material
enters the public domain by judicial decision.
This may be a sound approach here too,
perhaps invoking the power of the court
under CPR 39 to order private hearings.
The debate sparked by the EC Directive’s
rather limited aspirations is one we now
need to develop for these wider reasons.
The regulatory debate
Another key issue facing the mediation
community is how it should be regulated.
There is a pressure felt amongst the mediation
community to set some standards in place in
order to discourage “cowboys” leaping on to
a new market bandwagon, and to encourage
good practice rather than bad practices so as
to create a way for buyers of services to know
that they are dealing with someone of at least
reasonable quality.
Although there are limited instances of real
problems with this flexible, non-binding
process, the Civil Mediation Council (CMC) is
aiming to set both basic standards of practice
requirements for individual mediators and
mediation organisations which register with
it. Both groups will have to (a) confirm that
they meet the standards set, and (b) will
have to commit to follow a Code of Good
Practice, and (c) to be subject to the CMC
independent public complaints scheme. It
is a three-part system of supervision that,
while being light touch, aims to ensure that
reasonable minimum requirements are
followed by anyone claiming to operate in a
professional way. The CMC will encourage
courts and public sector bodies particularly,
to ensure that they use registered mediators
or organisations, if they are inviting tenders
for services or otherwise using mediators or
organisations delivering mediation services.
In addition to commercial mediation, this
scheme will be open to workplace providers
of mediation, a development stimulated by
recent employment legislation reform.
08 the barrister
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Fusion: A threat to independence in Criminal JusticeWith legal-aid fees plummeting, the Crown Prosecution Service and defence solicitors using more and more employed “in-house” advocates instead of independent barristers, with judges refusing to allocate serious cases to Queens Counsel, and the morale of the independent criminal Bar at an all-time low because so many are not even earning a living, Sir Ivan Lawrence QC answers those who think that the resulting, and seemingly inevitable, moves towards “fusion”, (barristers and solicitors becoming a single category of lawyer), will be good for the criminal justice system.
To begin with, the case
for “fusion” has nothing
to do with the quality of
criminal justice: it is about
money. Yet the idea that
“fusion” would result in a
considerable saving of money to the tax-
payer, is ridiculous. Solicitors, who have
higher overheads, charge far higher hourly
rates: indeed they employ barristers in the
magistrates courts because it is cheaper for
them than having to appear themselves.
Furthermore, barristers who necessarily pay
their own overheads and pensions would,
if they joined as employees the Crown
Prosecution Service or any other government
legal organisations, have them paid at the
taxpayer’s expense - plus health provision
and annual holidays with pay!
Secondly, the assumption that, having both a
solicitor to prepare a case and a barrister to
present it, unnecessarily doubles the work
and therefore the cost of criminal trials, is
also nonsensical. Two jobs would still have
to be done by two people, whether they are
solicitors or barristers. Complicated cases
involving a number of witnesses, cannot be
both prepared and presented at the same
time by one person. The former requires
investigation, tracing of witnesses, taking
of statements, and getting them and their
exhibits to court: the latter requires learning
and marshalling the facts, being up to date on
the law and planning and delivering effective
advocacy. Furthermore, a solicitor running
a business cannot suddenly drop work that
he is doing to run off to court to present
someone else’s case: and adjournments due
to the unavailability of the advocate are very
expensive to the system and harmful to the
representation and standing of the firm.
Thirdly, “in-house” barristers employed by
a solicitor’s firm (or even by a government
organisation) to carry out advocacy alone,
sometimes face another problem. The
employer requires him (or her) to do a certain
amount of work in a certain way within a
certain time as a dedicated fee-earner, and
having in mind the loyalty to his firm (and
his job), the barrister has to comply. The
self-employed barrister, on the other hand,
owes allegiance to his client and to the court:
he owes no professional allegiance to an
employer telling him what action would be
in the best interests of the firm, nor does
he have to concern himself with whether
his employer is making enough money or
has available the required resources. His
independence and commitment to his client,
is of paramount importance to the integrity of
our unique system of justice.
Fourthly, you would not want your family
doctor, or another doctor in the same general
medical practice, to carry out your brain
surgery, and you would want an independent
consultant, skilled through experience in
his chosen field of work, to advise on the
prognosis of a complicated illness: the self-
employed barrister similarly provides the
independent expertise. Like surgeons and
medical consultants, barristers are trained
specialists particularly skilled at performing
their tasks. They are not allowed to take work
that they are not equipped to perform. They
have to undergo continuing legal education.
They are ceaselessly monitored by judges,
instructing solicitors and their colleagues.
So, fifthly, one very important advantage of
the dual profession is that everyone charged
with crime, however lowly his condition, can
have access to the finest defenders practising
at the Bar. He does not have to be represented
at court by a member of the solicitors firm:
he can select from the ranks of available
counsel at large. A fused profession would
hardly be able to avail itself of that degree
of choice.
Sixthly, in the real legal world of increasing
volumes of paper-work and of the appeal
court’s relentless changes to complicated law,
the judges, in order to conduct their cases
as speedily as possible, have to rely on both
the experience and the integrity of the Bar.
Inexperienced in-house part-time advocates
inevitably slow the administration of justice
and add to its expense. There is already
plenty of anecdotal evidence that all is not
well with criminal trials where the accused
is represented by an inexperienced solicitor
advocate.
Seventhly, our judiciary has earned
a reputation over the years for being
independently-minded and not beholden in
any way to the wishes of its paymaster, the
State. Much of that tradition of independence
stems from the fact that the higher judiciary
has always been drawn – and is still mostly
drawn- from members of the independent
and highly trained Bar. That is not to say that
judges chosen from solicitors or the employed
Bar are not capable of independence, of
course they are: but life teaches us that it
may be difficult to live down a life-time of
obedience to a superior’s wishes.
It is surely clear that these many
advantages of our present dual
profession of the law have immense
value – not just for the integrity and
efficiency of the criminal justice
system, but also for the important
perception of it as being fair, by those
who have to use it and submit to its
judgements.
The public impression, carefully fostered by
some of the media, is that barristers are all
“fat cats” with their snouts in the trough.
Nothing could be further from the truth,
for the publicly-funded Bar. And if more
and more young barristers, with their high
student loans to repay, and their already
hopelessly inadequate legal-aid fees, halved
by their overheads of clerks fees, chambers
rent, pensions, insurances, travel costs,
hotels, books, and equipment, are driven
away from the self-employed Bar to work
as full-time employees, the British criminal
justice system, and its reputation in the world
for independence, will suffer. If more senior
barristers are driven into accepting employed
status for the sake of their economic security,
the situation will be even worse.
It is quite obvious that the public, the
government, members of Parliament and the
civil service, who between them guide our
futures, have little idea of how much would
be lost by “fusion”. That is because there has
been no public debate: we just seem to be
drifting very quickly in that direction.
I can say, with the experience of 23 years in
Parliament, that those who have power over
us do not always wish to have contentious
matters brought into the open for public
discussion. Certainly those of our masters
who are enthusiastic for “fusion”, but who
have never mentioned the word in their
dealings over the legal-aid scheme, would
prefer to keep their silence.
All the more reason, for there to be a
public debate – and for that to start
immediately. Before the independence
which is the glory of the British
criminal justice system completely
disappears.
09the barrister
10 the barrister
course have been reviewed by no
fewer than four working parties,
each chaired by an eminent
judge, practitioner or academic: Bell (2005);
Neuberger (2007); Wilson (2008) and finally
Wood. The standards and quality of all BVCs
have, moreover, been monitored frequently,
via detailed annual reports from providers,
and by Bar Council (now BSB) appointed
external examiners and panels.
According to Wood, though, there remained …
“a gulf of misunderstanding….. between the
practising Bar and the BVC. The impression
persists among many practitioners that the
BVC is flawed in most or all of the ways
described (above)”
Faced with all this Wood’s approach was
robust, businesslike and fair, and its outcome
could best be characterised as “tough love”.
On the “tough” side are its recommendations
that:
• The BSB should introduce a
challenging aptitude test, covering analytical
and critical reasoning and fluency in written
and spoken English, which all those wanting
to take the course (to be re-styled as the “Bar
Professional Training Course”) from 2010
onwards will have to pass in order to qualify
for entry.
• The “knowledge areas” should be
tested by a combination of multiple choice
and “short answer” tests: the former set and
marked by the BSB; the latter set by the BSB
but marked by the providers
• The pass mark for these tests
should be raised to 65
• Those who fail these tests (or any
other “summative” assessment) should be
allowed only one re-take.
More loving are its conclusions that:
• Therationaleforthecourseremains
sound. Wood reaffirms that its “sole function
and purpose…..is to introduce prospective
barristers to the practical knowledge and
skills they will need to provide a high quality
professional service to their future clients”.
It therefore not only rejects the idea that the
course ought necessarily to be accredited
towards Masters level degrees, but warns
that, where particular providers decide that
it will do so, this “should not detract from
(its) essential character as a practical training
course for the profession”.
• Thecontentofthecourseislargely
fit for purpose (though it recommends the
introduction of a new compulsory module on
Resolution of Disputes out of Court and that
Professional Ethics and Conduct should be
separately taught and assessed).
• The quality of teaching and other
resources are satisfactory
• The academic entry threshold
should remain at a 2(ii) degree. However this
has to be set in the context of the new aptitude
test, and the removal of any BSB discretion to
allow students who have not obtained a 2(ii)
to take the course.
Taken as a whole it is a formidable
achievement and a great credit to the working
group which conducted the review and the
small BSB team which supported it.
It manages to distinguish between concerns
which are real, provable and serious;
and those which are based on prejudice,
misguided aspiration, or hearsay; or which
simply reflect the “gulf of misunderstanding”
noted above
Its recommendations are commensurately
measured, sensible and convincing. They are
consistent with both the proper educational
aims and objectives of a vocational stage
programme for the Bar; and with the
profession’s responsibilities to ensure the
widest possible access and diversity.
It was completed in a remarkably quick time
and this despite its having included a specially
commissioned survey among students taking
the BVC. All stakeholders were thus spared
the blight, analysis paralysis and consultation
constipation which afflicted the Legal Practice
Course over the seven or so years that it took
the Law Society to complete the Training
Framework Review.
It has therefore strengthened the BSB’s claim
to be an effective and independent regulator,
- something which will almost certainly be
of great benefit to the Bar after the Legal
Services Authority starts work on 1 January
2009.
On the other hand, though, there are, of
course, limits to what a review of this kind,
and at this stage in the history of the BVC and
the Bar itself, could possibly have achieved.
Firstly, Wood notes that “(w)e have the
impression that the profession has become
disengaged from the course which trains its
recruits….In truth the course should belong
to the profession as much as it belongs to the
providers. If practitioners were more willing
to take responsibility for it they would, we
suggest, be more satisfied with it and there
would be fewer complaints”. Some of the
review’s key recommendations anticipate
and will require a significant level of active
support from the practising bar. This cannot
be guaranteed, and it remains to be seen to
what extent it will be forthcoming.
Secondly, there can be little doubt that over
the next few years there will be severe
pressures on the profession as a whole, but
most especially on the junior bar, and thus the
availability of tenancies and pupillages. These
will come from a number of directions: the
Carter reforms (and the further restrictions
on public expenditure, which are inevitable
from 2010 or so onwards); the Legal Services
Act, and the general economic climate.
Solicitors and others (including CPS
caseworkers) could well undertake an
increasing proportion of advocacy in the
lower courts, while an increasing proportion
of qualified barristers could be working
from “Legal Disciplinary Partnerships” or
“Alternative Business Structures” and the
profession’s centre of gravity could shift
markedly from independent to employed
practice.
In these circumstances, it seems almost
inevitable that in the not-too-far-distant
future the Bar will once again have to
review its “vocational stage” training, and
perhaps even to consider whether a separate
vocational stage for barristers and solicitors
is any longer justifiable.
In the meantime, however, Wood has provided
a clear, sound route map for the BVC’s further
development; has (probably) enabled it to a
period of relative (and much needed) stability;
and has given key stakeholders (most notably
students and practising barristers) as much
reassurance as to is standards and fitness for
purpose as they could reasonably expect.
Richard de Friend
Chair Academic Board
Senior Academic Registrar
Director College of Law Bloomsbury
11the barrister
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12 the barrister 13the barrister
Legal globalization: an expanding pictureWhile the picture might be expanding, is a uniformity of legal practices spreading, thereby contracting the diversity of law worldwide? Building on the last issue of The Barrister, we continue our investigation into legal globalization and consider in particular the effect different jurisdictions are having on each other.
By Alistair King of Justis Publishing
Leaving a slight, almost imperceptible but presumably deliberate comic pause in the phrase “dreadlocks and their… liking of cannabis,” Lord Bingham described just two of
the many aspects of multiculturalism and multi-nationalism that have challenged but often enriched British law and its evolution over the decades and centuries.
In this case it was Rastafarianism but, as he went on to illustrate in his keynote address at November’s Bar Conference, there are numerous examples from our long and sometimes inglorious history, from 1290’s edict to Jews that they should “change or go home” to twentieth-century debates on whether Sikh men should be exempt from crash helmet laws and workplace uniform regulations.
Like the English language itself, English law has evolved and – to an increasing extent, the meaning of which I hope will become clear – devolved. Diverging away from other nations’ legal systems in the Middle Ages, it then put itself about in the Eighteenth and Nineteenth Centuries as its British masters set upon their attempt to colonize the planet. Other European colonial powers were no different.
So has their influence effectively brought about a new convergence of laws and legal practices? And what’s the state of play in a Twenty-first Century dominated by the threats and opportunities presented by emerging economies?
Bordering on agreement?
In the last issue of this journal we looked at the globalization of the law from a practice area point of view. Establishing the germs of a consensus in the academic and professional community, we showed how different areas of commercial law, and even family and criminal law, were influencing practitioners’ work across the globe. Though we won’t depart from further consideration of those different areas of work, in this issue we will also expand on the jurisdictional dimension of the story.
We investigate, among other things, how global trade might have made it inevitable
that laws come together; how the internet has influenced the process; if some legal systems are insurmountably incompatible; and we continue to consider how the phenomenon is affecting people’s work, their research and the type of material they need to access.
An LPC graduate with experience in practice, Rory Campbell has worked in Justis Publishing’s editorial department since 2001. Now its manager, he overseas the detailed and discerning process of putting raw law reports and legislation through the electronic mill. Ensuring that they are intuitively searchable, cross-referenced, indexed and compatible with expected legal terminology, his early days were focused on the law reports of the constituent parts of the UK.
Despite significant jurisdictional expansion at the company, both in its provision of full-text case reports and in its development of the provider-neutral JustCite citator, UK cases remain an important part of Campbell’s job. What’s changed, he says, is that in the past four or five years he’s seen a “dramatic and tangible increase” in the number of foreign cases that are being cited in our courts. The internet, he tentatively suggests, might even be the cause of this increase, not just the solution to accessing this material.
When in Rome
The World Wide Web, it has to be said, had less impact on the propagation of Roman law at the time. But in recognition of its historical significance, we should have a quick look at this ancient jurisdiction.
A specialist in comparative legal history and Roman law, Andrew Lewis is a professor at University College London. Though his institution subscribes to them, Justis and JustCite – which go back to 1163 – sadly cannot boast case law from the First Century AD, the era we discuss. But, perhaps surprisingly, with statutes being “few and far between,” some of the methods by which the remarkably sophisticated Roman legal system operated bore some resemblance to our own. Though case law precedent was not authoritative, jurist advice – like common law decisions – was used to build up the law.
Lewis highlights the variety of officials that
would have presided in court. Each with a different level of authority and powers of enforcement, the areas of law they dealt with and the representatives they gave audience to are analogous to today – an example Lewis cites is that of a merchant supplying corn from Africa to Rome and the associated legal wrangling. Containing the fullest statement of the law, “the codification of Justinian in the Sixth Century preserved the writings of earlier jurists,” says Lewis, while reports survive from provinces such as Egypt. But, inevitably, much of it has been lost.
So what have the Romans ever done for us? “On the continent the whole structure and language of private law is deeply permeated with Roman ideas,” says Lewis. “Though it’s been less influenced than other European systems, Roman law has influenced English law too, particularly the law of contract,” he adds.
How does the British Empire compare in its lasting effect on the world?
Never the twain shall meet?
Isam Salah is an American lawyer. A partner at multinational law firm King & Spalding, he operates jointly in the company’s New York and Dubai offices and is head of its Islamic Finance practice. Many of his transactions involve enabling his Middle Eastern clients to adhere to their Sharia principles, while operating in an essentially Western legal setup. Local laws operate in countries such as the UAE, Saudi Arabia and Kuwait, Salah says, but these have been influenced over the years by the likes of Ancient Egypt, Napoleon and, of course, the British. And it’s the British – or rather English – system that Salah says has become the “law of choice,” at least in the commercial world where parties can effectively choose which jurisdiction’s contract laws to use.
But what of the legal compatibility of Sharia and Western law? Well, they’re not quite as mutually exclusive as some tabloid leader writers would have us believe. Putting aside criminal law, where one must consider not just how crimes are treated but what’s actually classed as a crime in the first place, commercial law can be adapted quite easily. A basic tenet of Sharia is that one can neither
pay nor receive interest. This would appear to preclude strict Muslims from obtaining mortgages. And this is the case. However, contracts that are effectively the same as mortgages can be drawn up. Though “substantively different,” Salah explains that they are economically equivalent, even though some of the burden of risk is assumed by the “lender”, who buys a commercial property, for example, and then leases it to the buyer for a period until they’ve paid back an appropriate amount to acquire full ownership.
Without doubt big differences still stand but the trend – if slow – is one of moving towards a gradual compromise.
The application of international court decisions
Salah’s company now subscribes to the International Law Reports Online, which Justis Publishing launched in November. The only publication in the world wholly devoted to the regular and systematic reporting in English of decisions of the international courts, these fully searchable reports stretch back to 1919.
Covering all significant cases of public international law and dealing with such topics as treaties, war, terrorism and refugees, they are crucial for litigators practising in the international courts.
However, rulings from these courts are also creeping into numerous countries’ national courts as persuasive precedent – a point not lost on Mark Muller QC. A senior barrister at JustCite-subscribing Garden Court Chambers in London, Muller was on the five-year-long “Access to Justice in Afghanistan Project”. For his unpaid work on this he, and the rest of the four-person team, won the recent Bar Pro Bono Awards, presented by our man Bingham following his aforementioned speech.
Muller explains that under the UK’s Terrorism Act (2000), it’s very easy to ascribe charges of terrorism to the activities of any number of pressure groups around the world. Preparation for such cases, he says, requires much consideration of comparative and international law. Muller allows that tensions can arise as British courts are often loath to accept international law. However, the “arguments are being raised, even if they’re not [necessarily] accepted.”
Time will tell how many decisions are followed at a national level. Given the global political and economic upheavals we’re going through, my hunch is that it will be a significant proportion. Proof, perhaps, will be offered by JustCite, which from later this year will index and cross-reference the International Law Reports against national cases and journal articles from an expanding
range of jurisdictions, currently including England, Scotland, Ireland, Australia, Canada and Singapore.
Of course in the international courts themselves there’s no debate on their admissibility.
Professor David J. Bederman lectures in public international law at Emory University Law School in Atlanta. “I mix teaching with advising in private,” he says, and he is “often called upon for the Appellate Bar and US Supreme Court.” It was while litigating at the latter on the issue of foreign sovereignty immunity that he successfully cited a case from the International Law Reports.
But here’s the rub: this was before their digitization, so Bederman had to rely on the hard copies. “I didn’t begrudge going through them book by book, index by index, because we won the case,” he says, “but I’ll sure be glad in the future that you can do intelligent Boolean searches and get the same results.” Now, of course, he can.
So why should a law firm subscribe? “Because they could save an associate 27 hours in a case where it matters” is Bederman’s analysis, based on his estimate that the “25 to 30 hours I spent going through volume after volume” would be reduced by an “order of magnitude”.
Continental divide: closing the gap
Legal research isn’t all about time-saving but it certainly helps, particularly if your area of law is influenced by recent European legislation and there’s precious little domestic precedent on which to support your arguments in court. In many branches of commercial law, particularly intellectual property and competition law, this is all too often the case – and English courts are beginning to recognize this, with many of them allowing precedent from other European national courts.
Such a problem arose for Jane Wessel, a litigating solicitor at London law firm Crowell & Moring. Last year she represented a company who claimed to have been overcharged by a carbon brush manufacturer that was found to have been part of a Europe-wide price-fixing cartel.
Seeking damages for her client through the English courts, Wessel didn’t at the time have access to Caselex, a new service distributed by Justis Publishing that solves the problem of easy access to other member states’ national court decisions by providing a searchable database of case summaries in English.
Wessel eventually found the European cases she needed to fight her corner but Caselex, to which she has since subscribed, could have made things much simpler.
“Previously I used the European Commission website to search for cases,” she says, “but you can’t enter a search and scan through to see whether you need to refine it for future searches.”
However, she adds, with Caselex "...competition law, appeals, cases on jurisdiction under the Brussels regulation... it’s all so easy to find, so you’re confident that you’ve completed your search.”
Orient hearing
So what of the future? One of the big questions is China. In the aftermath of the Cultural Revolution, the country had effectively no legal system. Britain’s China Law Council was set up by the Bar Council and Law Society in the late 1980s to provide practical training in the UK for a fledgling base of Chinese lawyers. Still continuing that drive, the council also provides a network for practitioners to exchange ideas and pursue opportunities in both countries.
Adrian Hughes QC of 39 Essex Street Chambers is the Bar’s joint Chairman of the council. “The industrial powerhouse may have a newly developing legal system but it has a 1,500-year tradition of mediation compared to our more recent adoption over the last 20 years,” says Hughes, so it’s a two-way educative process. “In the past five or 10 years, our mutual collaboration has been viewed by practitioners as increasingly relevant to both sides,” he adds.
Though its legal system is codified, the Chinese government has a strong commitment to law reporting. And the decisions of its courts are becoming of increasing interest to Western courts. A new database, iSinoLaw, has sprung up to cater for this and the concept is met with enthusiasm by Hughes. But, as we won’t do justice to the service – or to Chinese law itself – in the penultimate paragraph of this short article, we’ll have to save expansion on this for another day.
And for the closing paragraph itself? Well, the argument must remain moot. A New World Order of Law remains a distant dream (or nightmare); but frequent use of other jurisdictions’ arguments and systems could soon be the norm.
• Before joining Justis Publishing,Alistair King was a journalist for Building magazine. This followed time with academic publishers Routledge and Pickering & Chatto. Along with The Barrister, he has written for the Student Law Review, Your Witness and the Australian Law Librarian, and he has collaborated with the Irish Times. Articles from these – and more – can be read at www.justis.com and www.justcite.com.
14 the barrister
A new era dawns: Are we awake?Andrew Butler, Barrister at Tanfield Chambers, considers the arrival of the Legal Services Act and what this means for how barristers should market their expertise, and reviews his chambers’ experience so far in embracing the new era.
The Legal Services Act 2007
Among the regulatory
objectives of the Legal
Services Act 2007 is the
need to improve access
to justice, protect and
promote the interests of
the consumer and encourage an independent,
strong, diverse and effective legal profession.
The aim is clear: the Act seeks to encourage
change in the legal marketplace, but how,
as barristers, will this affect our profession?
Will it radically alter the relationship between
solicitor and barrister? Will we see barristers
working in partnerships? One change that
is already here is that of a more accessible
legal market for consumers through the
increasingly utilised means of Public Access.
As a result, the consumer will want easy
access to information on the track record
and expertise of the barrister – this must be
addressed. Are you listening at the back?
Public access to information
A Green Paper in 1987 suggested a change
in the traditional two-tier approach that
has always been adopted by the profession
in this country – i.e. a solicitor instructs a
barrister on behalf of the client. The rules
subsequently changed in 2004, allowing ‘the
public’ to approach and instruct barristers
directly for certain purposes. The traditional
role of the solicitor as intermediary has been
altered and in many cases the consumer will
be looking to appoint a barrister directly
resulting in an increasing public appetite
for on-demand interaction. Rather than
relying solely on solicitors’ advice, the
technologically aware consumers of the
21st century will seek out information on
barristers, enabling them to make educated
decisions about who their advocate should
be. The role of the solicitor is likely to remain
significant, aside from continuing to refer
their clients, they will continue to perform
essential tasks that barristers cannot, for
example, be engaged in, such as the general
management or administration of a client’s
affairs. Nevertheless, the point remains
that barristers can no longer solely rely
on solicitor-driven work as the consumer
embraces the notion of direct access. Whilst
maintaining the traditional alliance with
solicitors, the Bar should properly consider
the impact of online technology on consumer
buying habits.
The Internet has enabled consumers to be
increasingly savvy in making choices. An
incredible depth and breadth of information
available on the internet means that we all,
as consumers, make informed choices and,
as a result, simply disregard products if we
have no point of reference as to their success,
popularity, effectiveness etc. It is time for the
Bar to catch up with the trend that has been
set by other sectors and professions – we
need only look at insurance, travel, finance
and supermarkets to see how advanced the
process of information merchandising has
become.
Tanfield’s experience
Against this background, the departure in
August 2007 of our Chambers’ Director
seemed to me to be a cloud with a silver
lining. Capable though he was, losing him
provided an obvious opportunity to re-vamp
chambers’ marketing practices and maybe
bring in some external expertise. And, while
we were about it, why not have a look at our
old, tired website?
Of course, politely pushing for change in a
chambers meeting is, I imagine, a bit like
going out for a quiet drink in the days of press
gangs. I immediately found myself chairing
our Marketing Committee and meeting a
succession of web designers distinguishable
only by the varying levels of technical jargon
they employed. Eventually we resorted to the
tried and tested technique of asking the only
people whose language we could understand
– other barristers.
Thus settled on a reputable firm of legal PR
consultants, we commissioned them to audit
chambers, identify some “brand values”
and think how to accentuate and articulate
those values, making us as distinguishable
as possible. After all, weren’t we just another
collection of jobbing barristers striving to get
work? Not quite, it seems; the audit revealed
certain strengths and weaknesses which
most of us collectively recognised, while at
the same time never quite realising we had.
How to weave these brand values into a
website? For this, we retained the services
of a niche design company who produced
two “concepts” for us – both visually striking,
both fresh, both some way removed from
what one might often see when visiting
those of other chambers (when not dazzled
by one’s opponents’ terrifyingly impressive
credentials). We drew on aspects of both
concepts, and two weeks later we were
shown the result. The ability of the designers
to reflect our various wishes and preferences
was enlightening and impressive; I have
seldom seen a committee of barristers
reduced to such a state of reluctant, helpless
unanimity.
The next task was selling the result to the rest
of chambers, and for this purpose we held an
open afternoon for members to come and
inspect the site (at this stage just a succession
of PDFs) themselves. This of course was for
my benefit not theirs, an insurance policy
against later expressions of dissatisfaction,
and as a precaution I arranged it for a Friday
afternoon when I was in Court. It went
swimmingly; the designers said that those
who came along were cheerful, polite, to the
point, and obviously more interested in going
out for a drink!
Utilising yet a third set of professionals
to construct the site, we harmonised the
presentational side and the technical side.
The aim was to try to think really hard about
how our clients – not forgetting that this now
extends to the general public too - would
want to use our website, making it as easy as
possible for users to choose barristers by call,
experience and expertise, and highlighting
in a self-contained section those who are
prepared and qualified to accept Public
Access work. We also wanted accessible
images, with an element of wit and latitude;
I am particularly pleased that one member’s
dog basket (or technically, I should say, that
of his pet dog) will now adorn our pupillage
page, and that a bottle of champagne left
incongruously in a row of files introduces
forthcoming social events.
That left only the small task of collating the
members’ profiles and photographs. This
threw up a number of contentious issues (in
particular “But why can’t Diocesan Law have
its own Practice Group?” and “I’m not really
that fat, am I?”) but, by a combination of
cajoling, flattering, and threatening to write
them myself, they all seem to have got done.
Of course, the information that is available on
the website about an individual’s expertise
and experience is just as important as the
message that the site communicates about
the set as a whole. But, being part of a strong
brand will, however, naturally reinforce the
consumer’s feeling that they are looking at
the right person for the job.
The site has recently gone live and I leave
it to others to judge the results. All I hope
is that those solicitors whom our clerks
say they can hear down the phone tapping
away in search of the profile pages of those
being put forward for potential briefs will
be pleasantly surprised by what they find.
And the cost of all this (plus a vibrant media
promotions programme which now sees our
members obtaining media space like never
before)? About half the annual salary of our
former chambers director. No disrespect to
an excellent professional like him, but I think
it’s money well spent.
Don’t drop off
The main message, in my opinion, is that
solicitors and
barristers should
embrace the
change that the
Legal Services
Act 2007 will
and is already
bringing about.
Online technology
provides an
e x c e l l e n t
opportunity for
the Bar to promote
competition in
the provision of
services and to
encourage an
i n d e p e n d e n t ,
strong, diverse
and effective legal
profession – let’s
use it effectively.
Solicitors will
continue to
instruct barristers
but advances in how the consumer can
obtain information about services on offer
means that the Bar must respond accordingly
so that they can in fact reap the benefits
of change rather than shying away from
it. There is no denying that consumers are
becoming increasingly reliant on online
technology to help them make their decisions
– whether it be in their choice of insurance
provider, supermarket or indeed, legal
expert. Therefore, as service providers, we
need to ensure that the volume and quality of
information about the service we provide is
in line with the requirements of the consumer
so that they can ultimately make an informed
choice.
Andrew Butler, Tanfield Chambers
www.tanfieldchambers.co.uk
31 Dugdale Hill Lane, Potters Bar, Herts EN6 2DPT: 01707 850969 www.bradish.co.uk [email protected]
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15the barrister
Enhancing the Participation of Children in Family ProceedingsThe issue of whether or not children should have the opportunity to play a greater part in proceedings where decisions will be made which will affect the rest of their lives is becoming the subject of increasing debate.
By Nicholas Crichton, District Judge, sitting at the Inner London Family Proceedings Court
Would you want important decisions to be taken in your life without being consulted? Even if somebody talked to you
beforehand and undertook to report your wishes and feelings to the person charged with the responsibility for making the decision, might you want to meet that person to make sure that they truly understand how you are feeling? Children have views about what they want to happen in their lives – why should we not give them the opportunity to make a connection with the person who will be making important decisions for them?
Put simply, Article 12 of the United Nations Convention on the Rights of the Child states that a child has a right to have an opinion, to have that opinion listened to, and to have it taken seriously; and specifically to be provided the opportunity to be heard in any judicial proceedings affecting him, directly or through a representative.
The issue of whether or not children should have the opportunity to play a greater part in proceedings where decisions will be made which will affect the rest of their lives is becoming the subject of increasing debate. In their research published in “Your Shout” and “Your Shout Too” the NSPCC established that a significant number of children involved in public law proceedings would like to have had an opportunity to go to court; and that of those who did in fact go to court an even greater number felt that they received insufficient support and were not listened to; and that a larger number of children involved in private law proceedings would have liked an opportunity to go to court and speak to the judge. One of the most concerning findings was that some children had not felt listened to properly by Cafcass.
In Mabon v Mabon [2005] 2 FLR 1011 Lord Justice Thorpe and Lord Justice Wall reviewed and referred to the benefit of the “tandem model” of representation of children in the English courts. Lord Justice Thorpe went on to say that –
“it was simply unthinkable to
exclude young men aged [17, 15 and 13] from knowledge of and participation in legal proceedings that affected them so fundamentally”.
Lord Justice Wall referred to “the reluctance of the English Judge to talk to children in private” and said that –
“from the boys’ perspective it was simply impossible for the guardian to advance their views or represent them in the proceedings. He would, no doubt, faithfully report to the judge what the boys were saying, but the case he would be advancing to the judge on their behalf would be (or was likely to be) directly opposed to what the boys were actually saying”.
In Re W (Leave to Remove) [2008] 2 FLR 1170 Lord Justice Thorpe spoke of the participation of children as being a matter of particular topical concern. The three judges of the Court of Appeal in that case had differing views about whether the children in that case should have met with the judge who decided their case, and at what point.
In his address to the UK Association of Women Judges at their Annual Conference in March 2006 the President said -
“The question of the involvement of children in decision making and the representation of their rights and interests in both public and private law proceedings enjoys a higher policy and public profile that at almost any other time in our recent history”.
He went on to say –
“ … it is my view that, in an effort to ensure the welfare and happiness of children, and to listen to their voice first hand, we should be encouraging judges to talk in private to children who wish to do so, trusting the judge to retail the burden of his concerns or any changed perception having heard the child, whilst respecting the confidence of the child in sensitive areas”.
In the May 2008 edition of Family Law the Voice of the Child Sub-Group of the Family
Justice Council published a paper ‘Enhancing the Participation of Children and Young People in Family Proceedings - Starting the Debate’. In fact, the debate was started at an event held at Inner Temple Hall on 20th October. Approximately 150 attended. The event was chaired by the President, Sir Mark Potter. There were presentations from two young people, one who had experienced public law proceedings and one who had experienced private law proceedings. Mr Justice Hedley and Anthony Douglas (Chief Executive of Cafcass) spoke for greater involvement of young people. Anthony Hayden QC and Alistair Paddle, (former chair of NAGLRO) argued for a more cautious approach. A distinguished panel which included Mr Justice McFarlane and Lucy Theis QC, Chair of the FLBA, then took questions from the floor. Highlights of the debate can be heard on a pod cast which can be found on the FJC website at www.family-justice-council.org.uk. An edited typescript of the debate is also available on the Council’s website. The FJC has received some extremely helpful responses from various quarters. It is hoped to publish a summary of those responses in early in 2009.
The Voice of the Child Sub-Group does not suggest that all children should attend court. Nor do they suggest that those who do attend court should be giving evidence, except in very rare cases. Their wishes and feelings are properly established by trained and skilled professionals away from the court and presented to the court in written form. However, as the NSPCC research demonstrates, there are a significant number of children who feel excluded from the decision-making process and who would like to have a greater connection with that process. In order to establish that connection they need to be provided with age-appropriate information to enable them to understand the process and the role which they might play. They need to have it explained that whilst their wishes and feelings are important, they are not necessarily determinative. When I see children in my court I make it clear that we cannot have secrets from their parents and the other parties in court; and that judges have rules – they are required to take a number of different things into account,
just one of which is their wishes and feelings. It is my experience that children have little difficulty in understanding such basic rules.
Of course there are challenges –
• we have constantly to balance the Human Rights issues against welfare issues;• there is a significant difference in assessing the needs and assessing the wishes and feelings of children in private law compared with public law; • if a child expresses an interest in seeing the judge, there needs to be discussion as to how this need may be met – the Enhancement paper already referred to raises various possibilities.
It is my personal belief that Cafcass officers should routinely discuss with children and young people of an appropriate age and understanding whether or not they would wish to meet with the judge, at the same time explaining that not all judges will be willing to see them. In my view, and in the view of the Sub-Group, judges should not be reluctant to meet them. Many judges like to have a photograph of the child in order to give a face to the person for whom they are making a decision – better still, surely, to meet in
person? It needs to be stressed that the object of the child meeting the judge is not to assist the judge but rather to assist the child. There are many ways in which this can be achieved. It is rarely appropriate for the judge to see the child in the presence of parents or other parties. He can see the child in his chambers or in the courtroom. He should do so in the presence of another professional such as the Cafcass Officer, the child’s solicitor, the court associate or legal adviser. It is my practice to agree a note of what was said which can then be shared with the other parties.
Some will find it easier than others to talk to children. Guidance and training needs to be introduced to assist judges in communicating appropriately with children, which would be of benefit to all. The members of the sub-group would like to think that ten or fifteen years from now judges will be routinely seeing those children who wish to see them. Of course, some children may prefer the decision to be made without meeting the judge. What is important is that the alternatives are discussed with the child and that he should be given the choice. This means providing the child with the information to enable him to understand the whole process
and then discussing it with him in order to establish how best to meet his individual needs. Involvement is empowering, even if it results in the child declining to take part. Empowerment increases confidence and self-esteem. Refusal to meet a child who wants to meet the judge lowers confidence and self-esteem.
I started this article by posing some questions. I conclude by posing another – should judges be making these sorts of decisions if they are unwilling to meet the people they most affect and sometimes, in appropriate circumstances, to explain their decisions to them?
Note: in this article “children” should be taken to include young people; and “judges” should be taken to include magistrates sitting in the family proceedings court.
Nicholas Crichton is a District Judge, sitting at the Inner London Family Proceedings Court, a member of the Family Justice Council and the Chair of the Council’s Voice of the Child Sub-Group.
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Public Inquiries - do they really work?By Ann Alexander, formerly Senior Partner of national clinical negligence law firm Alexander Harris
Barely a week goes by
without fresh calls for a
public inquiry of some
kind. Whether these
calls arise from the
Lockerbie and Omagh
bombings or the circumstances surrounding
the recent death of a young student in Leeds,
public inquiries are seen as being the most
effective way of investigating major tragedy
so that lessons will be learned and change
will happen. After all, it is well known that
following such an event, grieving families
are intent upon discovering the truth behind
what has happened and most importantly
want to make sure that change is effected
so that no-one else will have to go through a
similar experience.
In recent years there have been many
examples of major organisations who have
failed to carry out their responsibilities,
whether they are substantial companies or
government agencies, and often the result of
those failings is catastrophic human tragedy.
In the health care arena, for example, one
only has to ask why so many babies died in
the cardiac unit at the Bristol Royal Infirmary
between 1988 and 1995 and how Harold
Shipman, the general practitioner from
Hyde, Cheshire managed to kill so many of
his patients throughout his career without
arousing suspicion?
“Families call for public inquiry” – an all too
familiar headline following such a tragedy
but do those families actually know what they
are asking for? Michaela Willis’ 7 day old son
Daniel was one of the 29 babies who died at
Bristol. She chaired the Bristol Children’s
Heart Action Group and recently told me that
they didn’t know what one was. Neither did
the Shipman families when they approached
me for advice about how they might have
such an inquiry after his criminal trial. But
these families know that they want answers,
and for the truth to be revealed in a totally
independent forum. And most importantly
they want complete transparency – for that
search for the truth to be conducted in public
with the media present to report on the
evidence being given so that all the details
will be exposed and nothing can be hidden
away behind closed doors. After all, in spite
of a lengthy legal battle which went to the
Court of Appeal, the parents of the children
killed and injured by nurse Beverly Allitt in
Grantham had to settle for an investigation in
private with little involvement for themselves
or for journalists. And today, nearly 15 years
later, many of those parents still don’t feel
that they know enough about what really
happened and why.
Whilst inevitably to some extent those
responsible will have been one or a handful
of individuals - after all it was Shipman
himself who killed his patients - it is the
exposure of failings in the systems which
is vital to identify where and how change
must take place and for the Inquiry to make
recommendations for change.
But that is all an Inquiry can do – make
recommendations. They are not the law. And
it is then up to government to decide whether
it accepts them and when and how to
implement them. And there lies the problem.
In a series of reports following the Shipman
Inquiry, Dame Janet Smith made hundreds
of recommendations for sweeping changes
across the systems in which general
practitioners operate to close all the loopholes
Shipman had exploited. Writing in her first
report published in 2002, Dame Janet said:
"I hope to be able to make recommendations
which will seek not only to ensure that a
doctor like Shipman would never again be
able to evade detection for so long, but also
to provide systems which the public will
understand and in which they will have well-
founded confidence."
But even though the government
formally accepted very many of those
recommendations, they have still not been
implemented. Recently, nearly four years
since the publication of Dame Janet’s sixth
and final report, a report from the Healthcare
Commission says more work is necessary
to ensure all concerns are picked up,
investigated and, where appropriate, action
is taken.
And this is by no means an isolated example.
There have been 70 public inquiries into
child abuse cases in England and Wales,
producing thousands of recommendations.
But that failed to prevent the death of 8-year-
old Victoria Climbié, which was itself followed
by another far reaching Inquiry under Lord
Laming.
A number of reasons might be put forward as
to why this might be the case. It is beyond the
brief of an Inquiry Chairman to make sure
something happens after his or her report is
published and government ministers who do
have that responsibility move departments.
In March 2006 when Harriet Harman M.P.
was Minister of State for Constitutional
Affairs she went to Hyde, Cheshire where
Shipman practised as a GP to talk to some of
the families about how her department was
implementing the changes to the Coroners
system but shortly afterwards she became
Deputy Leader of the Labour Party and she
had to pass the responsibility to someone
else. That is what civil servants are there for
but the families believe the impetus has been
lost and little has happened.
And is that good enough?
In the course of making a documentary
recently for Radio 4 about how such Inquiries
work,
I spoke to a number of people with
considerable experience of public inquiries
and I asked whether there needs to be a
change in the way in which the Inquiry
system operates.
Neil Garnham QC was Leading Counsel
at the Climbié Inquiry and told me that
there needs to be a follow-up process. That
process should, he says “call to account
the government departments or the local
authorities or whoever it is, to ensure that
they have done what has been expected of
them and that needs to be a refinement to the
process of some inquiries.”
The idea is supported by Richard Lissack QC,
who has been involved in nine inquiries and
is the editor of a forthcoming book on the
system. “It would be an extremely good idea
to build into the inquiry process the idea of
someone being charged with seeing through
the recommendations for change. This would
ensure “it doesn’t just sit on a shelf for six
years gathering an ever thicker collar of
dust.”
At present there is no procedure for anyone
to take responsibility for making the changes.
And of course because the media spotlight
has died down, there is regrettably an
assumption on the part of many that the
changes have in fact been implemented and
the failings have been fixed. There’s no doubt
that the process has a beneficial effect on
cultural change; it does inform the public.
And whilst it has to be up to government
to decide which recommendations it
accepts, what is the point in having a wholly
transparent Inquiry process if the shutters
then come tumbling down. How many more
avoidable tragedies will occur before a
rigorous mechanism is put in place to make
sure effective change is implemented? Until
that happens, institutional and systemic
failings will remain.
As Michaela Willis summed up, “It seems
ludicrous if you actually go through such a
lengthy process for the recommendations
then not to be acted upon.”
© Ann Alexander October 2008
The documentary which was broadcast as
part of the Analysis series for Radio 4 on the
30th October and 2nd November is available
to listen to at www.publicinquiries.co.uk. It
was researched, written and presented by
Ann Alexander and produced by Jim Frank.
Ann Alexander, formerly Senior Partner
of national clinical negligence law firm
Alexander Harris, has now retired from
full time legal practice and runs a media
and communications consultancy, working
in partnership with broadcaster Alistair
Macdonald as one half of Alexander Macdonald
(www.alexandermacdonald.co.uk)
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Study into local legal advice announced
The Ministry of Justice has announced a study into the funding and provision of local legal advice.
The government is keen to assess how recent legal aid reforms and any wider changes to the way in which local advice agencies are funded have affected the provision of services. The aim is to identify, bring together and analyse the available evidence across England and Wales.
Justice Minister Lord Bach has commissioned the study which will examine:
• the impact of the recession and the demand for civil legal advice
• the impact of civil legal advice fixed fees on local providers - financially and in terms of the type of work they are taking on
• the initial experience of Community Legal Advice Centres, including the impact on other providers in the area
• trends in funding from sources other than the Community Legal Service, including local authority funding, national lottery funding, charities, central government departments and others.
Lord Bach said:
'Legal aid is one of the fundamental elements underpinning the justice system and an important way of helping poorer members of the community. It enables access to justice for those who cannot afford to pay for legal advice and representation. The government aims to get the best value for money from the provision of these services, so that as many people as possible can be helped using the available resources.
'The need for legal advice in areas like housing and debt will inevitably increase in these difficult economic times and the government wants to be sure that the best use of existing resources is being made. This study will improve our understanding of how legal advice is delivered and funded at the local level and establish what further information we may need to inform future decisions.'
Law Society presses bankers to support solicitors On Thursday 04 December 2008 the Law Society started a series of meetings with all the major retail banks to explore how banks can help support solicitors through the recession.The president of the Law Society approached the banks and the British Bankers Association recently seeking an opportunity to explore the issues affecting solicitors' businesses in the credit crunch.
'We hope to develop a common understanding of our members' various business models and the factors affecting judgement of risk of lending so that we can encourage the banks to take a supportive approach to solicitors to help them through the downturn', says Des Hudson, Law Society chief executive.
'In these meetings we will discuss the extent of the current problem, the prognosis for the future and steps banks can take to minimise the impact on the profession. We would also like to agree to regular meetings to keep the situation under review.'
'This is one of a series of proactive steps the Society is taking very urgently to support solicitors in these challenging times and these are all set out at www.lawsociety.org.uk/survivingthedownturn. We are also reviewing the process and market for professional indemnity insurance with a view to avoiding in future the difficulties that many solicitors faced this year.'
This move follows the announcement of a first phase of a Law Society action plan which aims to assist solicitors in relation to their professional indemnity insurance (PII) renewals. A Law Society sub-group will be seeking expert advice on the insurance market to establish whether there are ways in which some of the difficulties that have been experienced this year can be alleviated for the future.
Solicitor’s appointment to senior judicial post sets example, says Law Society The Law Society has warmly welcomed the appointment of solicitor David Latham to the role of President of Employment Tribunals and says his appointment should set an example for the profession’s judicial ambitions.
Law Society President, Paul Marsh, says:
“We congratulate Mr Latham on his appointment to this senior judicial role and hope this fuels the aspirations of other solicitors to seek appointment to the bench. “Once the reserve of the Bar, the judiciary is gradually opening up. Mr Latham’s appointment is a giant step in that process.”
Mr Latham, 62, was admitted as a solicitor in 1971. He was appointed as a part-time Chairman of the Employment Tribunals in 1992, becoming a full-time Chairman in 1996, and then appointed as Regional Chairman in 2001. He was also appointed as Legal Chairman of the Reinstatement Committees and Umpires Panel in 1998 and of the Reserve Forces Appeal Tribunal in 2003.
Mr Latham replaces His Honour Judge Meeran who retired as President of Employment Tribunals (England and Wales) on 31 December 2008.
The Law Society has been a strong advocate for an independent and impartial system for judicial appointments. It continues to lobby on behalf of its members for improvements to both the underlying statutes and the selection process which could either deter or debar solicitors from applying for and attaining appointment as a judge.
The Law Society is working with the Judicial Appointments Commission, Master of the Rolls and the Lord Chief Justice to persuade senior partners to adopt a more positive attitude to colleagues considering a judicial appointment.
Paul Marsh says: “Mr Latham’s appointment is currently the exception to the rule, but I am convinced that senior solicitors with experience of managing major projects and cases would make ideal candidates for judicial appointment. However, they are just not putting themselves forward.
“In the contact that we have with senior partners in most cases there is a negative attitude to the idea of partners having time out of practice to sit on the bench. We want to change that mindset. Firms should regard the appointment of one of their solicitors to the bench as reflecting credit on their firms.”
Through its collaboration with the JAC the Law Society is working to open up the judiciary to solicitors, and in turn help to ensure the appointment of more women, disabled, black and ethnic minorities to the bench.
Paul Marsh says: “The appointments process must result in the best talent obtaining judicial positions, not only for the benefit of the courts system but most importantly of all for the society it serves.”
Clarifying IELTS test requirements for BVC students
All candidates, enrolling on the BVC from 2009, for whom English or Welsh is not their first language must demonstrate that they have attained a minimum 7.5 IELTS standard in all sections of the test.
You can apply for the BVC before completing the IELTS requirements. However, in order to enrol on the BVC with the Provider in the autumn of 2009 you are required to have sat and achieved 7.5 in all sections of the academic IELTS tests.
IBA launches e-magazine on International Criminal Court matters for lawyers In its continuing effort to encourage lawyers and bar associations to engage with the International Criminal Court (ICC), the International Bar Association (IBA) today launched a new e-magazine, 'EQ: Equality of Arms Review'. This important publication informs lawyers about the ICC’s work through a compilation of concise, thought-provoking articles on important developments at the Court. EQ will act as a valuable resource for lawyers worldwide. This e-magazine is to be published quarterly and subscription to it is free.
Among the many articles in this exciting new publication is an opinion piece by Justice Richard Goldstone (the former Chief prosecutor at the International Criminal Tribunals for the former Yugoslavia and Rwanda). Entitled ‘For Peace’s Sake: Should Justice Defer to Politics’, it critically assesses the implications of a possible UN Security Council deferral of an arrest warrant against Sudanese President Omar al-Bashir under Article 16 of the Rome Statute. In this regard Justice Goldstone states ‘an Article 16 deferral [by the Security Council], should it occur, will likely be heralded as a failure for justice against the might of politics’.
One unique purpose of EQ is to highlight specific issues faced by defendants and defence teams appearing before the ICC. In this regard, EQ’s first edition contains a special background feature on the defence team representing Thomas Lubanga, the ICC’s first accused. In a stimulating commentary entitled ‘Does the ICC matter to lawyers?’ lawyers worldwide are encouraged to engage fully with the ICC by signing up to the Court’s list of counsel. The magazine also includes insightful commentary on major issues currently faced by the Court, including: disclosure challenges in the Lubanga case, the confirmation of charges against Mathieu Ngudjolo Chui and Germain Katanga and the need for states to implement Rome Statute legislation into their national laws.
Mark Ellis, IBA Executive Director, comments, ‘The long term viability of the ICC depends on collaboration and support of the legal profession. Lawyers need timely information about key developments at the Court in a format that is quick, easy to read, yet comprehensive’. He adds, ‘EQ is an important resource that the IBA expects will increase knowledge and awareness about the ICC and act as an important bridge between the legal community and the Court.’
To read the first edition of EQ: Equality of Arms Review go to http://www.ibanet.org/images/downloads/hri/11_EQ_News_November_2008.pdf
Optional Protocol to the UN Convention for the Elimination of Discrimination Against Women Justice Minister Michael Wills has made a statement on the publication of an independent review of a protocol that allows women to take complaints directly to the United Nations if they believe their rights have been violated.
Minister of State, Ministry of Justice (Michael Wills):
The review of the experience of the United Kingdom under the Optional Protocol to the United Nations Convention for the Elimination of Discrimination Against Women (CEDAW) announced on 25 June 2007 by my Noble Friend Lord McKenzie of Luton has been concluded.
The CEDAW Optional Protocol allows women in the UK to submit complaints directly to the United Nations Committee for the Elimination of Discrimination Against Women if they feel that their rights have been violated. The government accepted the Optional Protocol to reaffirm our commitment to women's rights and gender equality, and to gain greater empirical evidence on the value of individual petition to the UN generally.
The review of CEDAW was carried out by Professor Jim Murdoch of Glasgow University School of Law.
Professor Murdoch finds that: *the CEDAW Optional Protocol has not yet provided women in the UK with real benefits
*non-governmental organisations in the UK have not used the Optional Protocol in advancing the cause of women
*the quality of the UN Committee's adjudication on admissibility of complaints can appear inconsistent.
Government expenditure on cases involving the UK has been calculated at just over £4,000 per case.
Professor Murdoch's findings suggest that the first three years have not provided sufficient empirical evidence to decide either way on the value of other individual complaint mechanisms. We will need further evidence, over a longer period, to establish what the practical benefits are. In the meantime, the government will consider the merits of other individual complaints mechanisms on a case-by-case basis.
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Consultations on payment of Crown Court defence costs
The Ministry of Justice (MoJ) and the LSC have issued two important new consultation papers on Crown Court means testing and the award of costs from Central Funds. A number of controversial changes are proposed.
These include:*those who fail to apply for legal aid in Crown Court cases could no longer be eligible for Central Funds payments if acquitted
*consideration of whether those who fail the Interests of Justice test in Magistrates’ Court cases, but subsequently obtain legal advice and/or representation, should no longer be able to claim back their costs from Central Funds
*capping Central Funds payments in all cases for acquitted defendants, including companies, to the relevant legal aid rates
The Law Society will be seeking the views of the profession and will be submitting detailed responses to both consultation papers.
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Financial Irregularity and Criminal and Civil Redress in the City In November 2008, at its Annual General Meeting, Napo, the Probation Union, called for an investigation into speculation and City dealings to ascertain whether there had been any criminal activity or behaviour or any evidence of recklessness or negligence.
By Harry Fletcher, Assistant General Secretary, NAPO
financial institutions. It has found that there
are a wide range of readily available powers
for the Government to draw upon to address
this problem.
The Sentencing Advisory Panel, which was set
up by this government offers some guidance.
They say that the highest level of criminal
culpability is where there is intention to
cause harm. The lowest level is where the
individual is proved to be negligent. The
panel describe two other levels, first where
there is recklessness with regard to whether
any harm is caused and secondly whether
there is a knowledge of specific risks entailed
in certain actions without intention to cause
harm. Napo believes that this advisory
framework should be examined by any
investigation to determine whether existing
sanctions can be applied or new sanctions
are required.
Napo believes that the Inquiry should be
carried out by a body deemed appropriate
by government, which could be the Financial
Services Authority, Ombudsman, the Home
Office, or Justice Select Committee or, if
necessary, the Crown Prosecution Service.
The Inquiry should establish whether there
is a prima facie case for prosecutions to be
brought against individuals or corporations
under the existing criminal law or civil action
in case of possible neglect.
The Inquiry would also establish if any new
legislation is needed to deal with recklessness
or other criminal behaviour. The Inquiry
could examine the nature of any risk taking
which could have compromised public
finances. Any sanctions which might be
drafted could be based on existing legislation
which covers recklessness and criminal
damage.
The Inquiry could examine whether any
recent financial activity was anti-social in
that it caused individuals or groups alarm or
distress. Any sanctions could be based on
existing legislation such as that covering anti-
social behaviour orders or curfews.
Activity deemed reckless could also lead
to perpetrators being required to sign
acceptable behaviour contracts instructing
them to act properly and responsibly in
financial affairs. They would be similar to
those used with young people who have
acted irresponsibly.
The Inquiry could consider possible penalties
if misdemeanours were proved. These
might involve fines or compensation orders
in civil litigation. The Inquiry could consider
imposing prohibition orders in respect of
trading if reckless or criminal activity or
intent were proved. Such an order would
prevent an individual from being involved
in any speculative financial behaviour if it
was proved that their previous actions had
caused individuals alarm or distress. The
Inquiry could consider whether powers were
needed to seize any profits from proven
reckless dealing which had compromised tax
payers’ funds. Such legislation could draw
on existing laws dealing with powers to
confiscate the proceeds of crime.
If reckless behaviour was very serious
individuals could be banned if the Inquiry
thought fit from further commercial dealing
for a specified period of time.
The government has created 3,600 new
criminal offences since June 1997 in 55
Criminal Justice Statutes. It is indeed
unfortunate that few if any of these sanctions
might be applied in the current financial
circumstances.
Napo believes that the principles behind the
sanctions introduced to control anti-social
and criminal behaviour could be applied in
the circumstances outlined above. It is highly
unlikely that speculators deliberately try to
cause harm but in certain instances there
may be evidence of total disregard towards
whether harm is caused or not, and certainly
harm has been a consequence of many of
the actions.
Young people involved in anti-social behaviour
in our communities are now frequently made
the subject of Anti-Social Behaviour Orders.
In effect the court tells them not to do it again.
Others are prohibited from associating with
certain individuals or going to certain places.
Surely the government could consider orders
which told the speculators not to be involved
in that behaviour again, or which prohibited
them from working in financial institutions
for a set period of time, or which prevented
them from associating with individuals who
have behaved recklessly in the past.
The union, however, is realistic. It is highly
unlikely that any of these actions will ever
be taken, and once again those who are in
a position of privilege and behave recklessly
are immune from the civil and criminal
consequences.
Harry Fletcher
Assistant General Secretary
Napo demanded
that any evidence
should be properly
tested. If criminal
activity is proved
then individuals and
institutions should be dealt with by the full
force of the law, and consideration should
be given to the possibility of new laws being
introduced to cover reckless behaviour.
In his opening address to the conference,
National Chair, Mike McClelland asked the
question “who is it in society that creates
the most pain and harm? Is it those who
we traditionally brand offenders, and with
whom the Probation Service engages in an
attempt to redirect them away from crime,
or is it bankers, spivs and speculators whose
greed ultimately seems to threat the stability
of whole economies and the well being of
millions of citizens. Who are the villains and
criminals now?”
Over the last period, many members of the
public and both national and local politicians
have expressed concern that certain
individuals in our banking and financial
institutions, who have been responsible
for causing or contributing to the current
economic crisis facing our country, appear
to be able to walk away from the damage
that they have caused with impunity. Yet the
same individuals have often received record
bonuses, whilst taxpayers in the community
have seen their pension funds seriously
eroded and their savings put in jeopardy.
This offends against a sense of justice
and fairness within the wider community,
especially since it is the taxpayer who has
had to pay for the bail-out of the banks
and many people are expected to lose their
jobs, and even their homes, as a result of
what many commentators have described
as reckless behaviour within our financial
institutions.
As Labour MP, and Secretary of the cross-
Party Justice Unions Parliamentary Group
said, following emergency talks between the
Government, Bank of England and Financial
Services Authority on the crisis in the British
banking sector in mid-October:
"Yet again the taxpayer is being asked to pay
for the mistakes of the bankers with next to
nothing in return. The Government is set to
throw £50 billion of taxpayers' money at the
banking sector's failures. I believe that the
Government should nationalise to stabilise
the banks. At a minimum the Government
must place conditions on any bail out
including full public and parliamentary
scrutiny of the banks' accounts”
Since October 2008 it is clear that this activity
will exacerbate the effects of the recession.
Indeed, hundreds of bank employees, who
are not responsible for the speculation, seem
set to lose their jobs as a consequence of the
catastrophe and bail-out.
Questions have been raised over whether
there are any forms of redress presently
available to the Government to bring some
of the individuals to book for their behaviour.
Napo represents those professionals who
have been given the responsibility by the
Government for implementing laws and
policies introduced to tackle behaviour which
has caused harm to society.
During the last ten years the government
had introduced ASBOs, curfews, parenting
orders, and placed prohibitions on a range
of activity. The Anti-Social Behaviour Order
has been used on thousands of occasions
against individuals where it has been proved
their behaviour has caused alarm or distress
to ordinary citizens. Curfews have been used
to prevent predominantly young offenders
from being at large during certain key hours.
The government has increasingly used
prohibition orders against those involved in
certain types of offending. This has involved
preventing individuals going into certain
geographical areas, from associating with
named individuals or engaging in certain
activities. Napo believes that many of
these principles could, and should, be used
if recklessness and speculation has, itself,
caused alarm and distress to members of
the public.
During the last few weeks the union has
examined what actions can be taken under
existing laws against those who have
recklessly caused harm to our society by
their anti-social behaviour in our banks and
25the barrister
Conferring on human rights and wrongsReviewing the 2008 legal conference season: The Justice Conference, the Bar Conference and the Criminal Justice Management Conference
By Phillip Taylor MBE, Richmond Green Chambers
Autumn is always a time for
the serious conference-
goer, and a recurring
theme for 2008 was the
evaluation of human
rights law after ten
years for members of the Bar and legal
professionals.
Justice and Thomson Sweet & Maxwell
combined again to run their most successful,
well established and thought-provoking
annual conference on current developments
in human rights law with the theme, struck
well by keynote speaker, Jack Straw, on how
to make people love human rights, ten years
on.
The Bar Conference keynote speech from
Lord Bingham, and other speakers travelling
along the same route, rightly suggested that
these rights are of genuine concern for those
pursuing multiculturalism. It was particularly
poignant just before the 70th anniversary of
Kristallnacht which held a special place for
all of us last year and was justifiably referred
to for its historic warning.
LADY JUSTICE ARDEN Before we heard from Jack Straw, it was the
turn of Lady Justice Arden to open the Justice
Conference and tell us all that the Act has
changed the way we think about democracy,
and the way we consider the focus of the
law in cases where the Act applied. Her
contention was that the issues centre now on
the rights of the individual rather than those
of the majority.
Arden felt that either an individual’s rights
can no longer be abridged, or the onus
concerning such rights has been shifted to
the state which would have to show that any
interference with the right is essential. That
seemed to me to be the thrust of her opening
argument in the morning.
However, considering judicial review
applications not involving human rights, she
considered that it would be for the individual
to show that a decision under challenge could
be held to be “perverse”.
Democracy had now become a “complex
interplay between majority and minority
rights”, she added. A comment I found
particularly interesting from such a senior
member of the judiciary.
The Court of Appeal judge, who has been
tipped for promotion to the House of Lord
this year (2009) when the changes occur,
also suggested that human rights law should
show favour to individuals over the majority
so the new Supreme Court will need to
explain its decisions to the public in 2009.
Perhaps I am a bit cynical but I felt she was
trying (rightly) to get the new agenda set on
its true course.
Of the new Supreme Court, which will take
over from the law lords (in name anyway),
Arden LJ said this gave us all “a unique
opportunity for setting up an apex court
for the twenty-first century”. She said we
needed to build new institutions to ensure
the success of individual rights.
She went on to question whether the new
court should have different criteria for
selecting the cases it was to hear, perhaps
favouring those that raised constitutional
issues.
Arden felt that its judgments, particularly
those dealing with human rights, had to be
clearly communicated to the public. I could
feel that the audience approved even though
it was nearly time for morning coffee.
“Things have changed radically in the last
50 years,” she explained. “The public is no
longer content to know what the law is. They
want to know why it is.” I came away from
this session, as I have with other judges like
Lord Bingham (see below), that we really
do need to hear much more from them if
for no other reason than the beauty of their
well crafted, and sensible, speeches. It was a
privilege to heard Arden LJ and I feel most
were very impressed.
THE CONCEPT OF THE ‘CONSEIL
CONSTITUTIONNEL’ AND THE
SUPREME COURT
Arden thought that the Supreme Court
would evolve, although this would happen
slowly. She gave the example of the ‘Conseil
Constitutionnel’, which was given new
powers this year to annul laws that it regards
as unconstitutional in France.
This went much further than the Human
Rights Act, which came into force eight years
ago but is clearly a persuasive precedent for
us. She said: “It enables the citizen to argue
that primary legislation is unconstitutional
and to seek an order that it be set aside.”
However, she was not predicting a parallel
development in the United Kingdom. “But
the Conseil Constitutionnel illustrates how
institutions can change and evolve as
circumstances require.”
Other judges have said they do not expect the
new Supreme Court to be any different from
the old House of Lords, which has no power
to overturn primary legislation. But observers
have said that this takes no account of the
law of unintended consequences. We shall
wait and see, but Arden’s contribution to the
Justice Conference was certainly profound
and worth hearing.
JACK STRAWThe other keynote speaker in between the
specialist sessions which were all of a very
high quality and ‘fit for purpose’ was Jack
Straw. Jack combines roles as a modified
Lord Chancellor and ‘Justice Secretary’,
and he conceded that the Human Rights
Act had not found a place in the public’s
affection — “despite its manifest benefits”.
This started well and I was looking forward
to some ‘politics’ (dare I say it!). I was not
disappointed.
Forget his delivered speech which you can
view on the internet for its worthy content,
it was his answer to the sixth and final
question put to him which summed up his
feelings when he replied with a passion about
human rights issues involving conduct and
the balance which our society needs to have
as a two way street for rights. That struck
a chord with me as I have been teaching
law to adolescents who know the rights but
seem unaware of the responsibilities that are
tagged on (like some clients).
Jack ended on his highest note (well worth
waiting for) with a stark point about what is
at risk for us- namely a lack of affection for
human rights (as shown by some newspapers
regularly named that day as critics) would
damage the foundations of the two-way
street for these rights so it was for us to fight
for the soul of human rights law after the
first ten years as we look forward to further
legislation. His theme was echoed at the
other main conferences I attended, including
the Bar Conference at Lancaster Gate on
‘Multinationalism and Multiculturalism-
Tomorrow’s World?’
Straw started his speech by telling us that
the main reason for the HRA can be seen
with the atrocities of September 11, 2001,
occurring less than a year after the Act
came into operation. “The debate became
about whether terrorists themselves should
be given the very rights they deny to others,”
he said gravely.
In reality, he went on, the Act had not
impeded efforts to counter terrorism. But this
had not been the perception. Then we got a
bit of the ‘knock about’ politics and the views
of the Opposition which I had witnessed at
the Tory Conference in Birmingham with
David Cameron’s commitment on a future
HRA.
A FUTURE GREEN PAPER: A “Bill of Rights & ResponsibilitiesWhat was needed now, he continued, was a Bill
of Rights and Responsibilities encompassing
social and economic rights that had not
been included in the European Convention.
It would be “an opportunity to bring together
existing rights and responsibilities in one
place and to provide a clearer articulation of
the duties we all owe”.
But if such a Bill was to have any real and
lasting impact, it would have to win the
public’s support — "and affection" — in a
way that Human Rights Act had yet to do.
Without it, Straw added, in response to initial
questions, the existing legislation would be
at risk. This was the bit which remained
with me as I could see he was genuinely
moved with a bit of low key emotion which
can always have its place on these occasions
when the future of such an important policy
is being re-assessed
Jack Straw finished his session with this
statement which was the answer to a question
I referred to earlier on where the burden if
responsibility lies: this is how he replied
“If we don’t establish, in the public’s minds,
an affection for human rights — and one,
quite profound, way of achieving that is
by saying that this is a two-way street,
with responsibilities and obligations — then
the foundation in people’s souls for human
rights won’t be as deep or as strong as I
would wish; and it will be easier for a future
administration of a different complexion to
start to undermine the whole fabric.”
I liked this because he got the tone right.
However Straw made no promise of any
legislation in the next Queen’s Speech. Since
the Government has said it will consult
widely on what a new Bill should contain, the
chances of legislation being passed before
the next General Election must be remote.
LORD BINGHAMThe Bar’s theme for 2008 was ethnicity with
the theme of human rights running throughout
just as it has for our fellow professionals at
the Criminal Justice Management Conference
with the police ‘take’ on human rights and
an eagerly awaited speech from Sir Ronnie
Flanagan who did not disappoint with a
statement on new policing policies.
The best speech from the well attended
Bar Conference came from Lord Bingham
although I found every session was of an
excellent standard - the most enjoyable being
the debate where ‘equity reflects core values
which transcend cultural differences’ and the
full flow of our equitable heritage was heard
(forget the common law, this was where it
was at!)
I started with Lady Justice Arden and I
end with Lord Bingham. We were very
lucky to have these contributions at such
an uncertain time for all. It is impossible to
do justice to Bingham’s speech (forgive the
pun) as it stood out for its learning, its sense,
its content and its conclusions. It was a bit
like reading some of the finely-tuned Lords
law reports: ‘it raised questions but did not
produce answers’.
And that was that, because the jurisprudence,
the learning and the practical philosophy were
there throughout considering the safeguards
for minority rights in today’s society where
Lord Bingham raised the hard cases and
gave his version of what we do. It was a
thought-provoking start to a very successful
Bar Conference and as I saw earlier, I came
away feeling society needs more exposure
from these speakers talking about our ‘rights’
in a world which, days later, found Obama as
the 44th President of the USA and it is to be
hoped that character rather than colour will
now find its predominant position for our
global community as we fight for the soul of
human rights in the twenty-first century.
24 the barrister
27the barrister26 the barrister
Forensic Science – Who investigates the investigators?Roger Robson, Partner, Forensic Access Ltd. gives his opinions on the current process of historic case review with particular emphasis on the impact within the UK forensic market.
You would think in these
modern times; cocooned
in quality systems; that
there was little room for
error and miscarriages
of justice; yet the very
drivers of today’s society unfortunately still
allow for the occasional slip which is hopefully
captured further down the line, those not
caught are sadly a reflection on our own
inabilities within the judicial process. Whilst
the figure surrounding such embarrassment
is not within the status of shock, you will
I’m sure agree that it would be absolutely
unacceptable should the finger point without
fairness at your partner, son or daughter.
Forensic science – a powerful tool for
the police investigator
The use of forensic science as a tool to assist
both the Investigator and the Criminal Justice
System has become enormously important;
much more so since the introduction in the
1990’s of DNA analysis. Whilst not conclusive
in its interpretation, DNA alone has proved
its worth in tracking down the perpetrator
and assisting the juries with phenomenal
statistics that evaluate how likely the DNA
came from someone else with the same
profile. The technique of DNA has been
used with great effect to unlock unsolved
cases and bring to justice individuals who
have remained free to reoffend; cases going
back as far of 30 years are making the
headlines on a monthly basis. This has been
heartening for the forensic community as
a whole reaffirms the public’s trust in the
police and most of all brings closure for the
families who have had to live for many years
not knowing where, why or by whom their
loved ones were killed.
I don’t recall a year passing by during the
past 10 years or so without some high profile
case being either solved, or a conviction
being overturned using the power of DNA
to make such judgements. Forensic science
has been critical in many of these cases –
sometimes it has been enormous help, other
times it has been the misinterpretation that
has lead to the downfall. In terms of any
misuse, obviously, it is important to get it
all right in the first place. Taking all of this
into consideration it has to be applauded
that advances in forensic techniques have
assisted far more in solving old cases and
allowing for safer convictions today on a
daily basis across the UK in comparison to
the occasional case which has for various
reasons been at fault through the forensic
tests or their interpretation. Within our
adversarial system we do at least have the
opportunity to challenge all aspects of the
investigation that has lead to the prosecution
case...and rightly so. These days there is now
the opportunity to challenge the investigative
strategy, the leads, decisions taken mid-way
through an investigation and the forensic
testing rational. All of this detail is now
documented and disclose able.
Misuse of the tool and the independence
of the Expert
On occasion even the reinvestigation of a
historic case can and does not proceed as
successfully as it may. The original police
investigative team may be pulled together
once more, say on the anniversary of a
particularly high profile unsolved murder.
Funding is released from the force and the
team review once more what they perceive
to be the best way forward. Bias may already
exist and be heightened if a strong suspect
has committed offences in the interim. A lot of
public money can be spent chasing the wrong
suspect and in desperation spending many
thousands of pounds attempting to locate his
DNA on the victim’s clothing, when in reality
it was not he who committed the offence in
the first place. If allowed to perform their job
correctly, the forensic scientist should remain
objective throughout the re-investigation, no
matter how forthright the police investigator
appears. The police however do hold the
funds ... why buy a CD if you don’t like the
singer! Some Senior Investigating Officers
(SIOs) believe as they hold the funds they
have the right to set the forensic strategy.
Whilst this may appear reasonable a little
knowledge is dangerous and their decisions
and strategy often biased – they are
investigators not scientists and should allow
the scientist to do their job. A scientist who
does not challenge the decisions to ensure
they are safe is not undertaking his role
professionally. To remain objective the duty
of the scientist is not only to assist the court
by finding scientific evidence to support the
investigator’s proposition (that say Mr Smith
killed Mr Jones) but should equally attempt to
refute the proposition. Whilst many scientists
refer to this in the preamble within their
statements, sadly very few have either the
time, the funding or are fully conversant
with all the facts from the defendant to
perform the task of fully assessing the
proposition to refute. Thankfully therefore
there is the opportunity for a defence
scientist to explore the accuracy of both the
tests, the interpretation and offer realistic
alternatives in order to give balance to the
overall thrust with which the forensic aspects
assist with a safe conviction or acquittal.
On this point, it is often unwise to go to the
other large corporate forensic provider for
a second opinion as their scientists too are
generally deeply entrenched in prosecution-
biased strategies and few have the skills to
effectively challenge.
On occasion solicitors working for The
Criminal Defence Service do not know where
to go for an appropriate expert to scrutinise
the prosecution work. Many Barristers have
their favourites. I suggest they seek to find
out if the expert they use is still competent to
undertake the scrutiny. Are they or were they
a practitioner themselves? If not then the
chances are that whilst they may be able to
attack the interpretation with vigour they will
not have appropriate skills to check the very
basics of the tests. To take up the services
of a “Hired Gun” may achieve success in
muddying the waters but this practice is
foolhardy and unethical and merely creates
enhanced problems further down the line.
Yet the Hired Gun still exists and practices.
So what is been done about it?
The police forces have their own internal
mechanisms and checks to ensure themselves
and their Governors that they are spending
public money wisely. The larger major crime
investigations are usually reviewed within
7 days if no one has been charged with the
offence; then re-reviewed more thoroughly
after 28 days. If the enquiry goes cold then
the force may decide to bring in a fresh
investigative team from another force to
review all the original work.
If a complaint has been made, say by a
grieving relative, or harassed suspect then
the case may be referred to the Independent
Police Complaints Commission. They have
regional facilities throughout the UK with
many staff – this is telling in itself.
Individuals that consider their convictions
unfit and still plead their innocence are
directed, via a solicitor, through a rigorous
review process often spanning a number
of years and through the guidance of the
Criminal Case Review Commission [CCRC].
A look at the CCRC website demonstrates
a rather unhealthy list of cases that are
currently been reviewed and those waiting
on the touchline. Longwinded though this
process may be at least we have checks in
place within the CJS that allow for an Appeal
process.
As many of the high profile cases involve
Expert Witnesses working for both sides the
move to have pre-trial experts’ conferences
in order to lay some common ground should
only be applauded. The Barristers should
stay away from the debate I suggest and the
Experts should be reminded that it is their
duty to serve the Court and not the individual
who is paying their fees.
The forensic services offered in the UK
continues to move rapidly, though the quality
of the Statements, the time allowed to
undertake tests and the role of impartiality
has not been permitted to keep pace. The
forensic commercial marketplace has lead
quite rightly to the Home Office introducing
the first Forensic Regulator. His remit is
to oversee the quality of forensic science
throughout the judicial process – a huge
undertaking for anyone. Police forces, large
commercial forensic providers and eventually
the lone expert will need to demonstrate to
the court that the tests they use are accredited
and their competence to act as an Expert has
been authorised. This cannot happen soon
enough and will at very least allow for the
Courts to be reassured that the scientist has
performed to the best of his abilities. Those
working more so for the CDS should also
not shy away from such regulation and this
I’m confident will allow for a more robust
scrutiny, fewer “hired guns” and ultimately
fewer miscarriages of justice.
Roger Robson may be contacted at Forensic
Access on 0845 230 2414 or by email at
29the barrister
The future of e-discoverySo, what of the future for litigation technology? It is fairly safe to assume that the needs of the litigator will remain fairly constant. This holds true for the expert as well – those of learning, distilling and processing the facts into a coherent, logical and persuasive presentation that retains integrity in court or other litigation.
By James Stanbury, Partner and Chris Paley-Menzies, Manager at RGL Forensics
2050; a plain room in
a Nottinghamshire
farmhouse overlooking
the sea. A middle-aged
man walks in and sits at
the UltraWood™ desk and
waves his hand through a sensor field above
the desk. The field detects and authenticates
the e-Chip™ embedded in his hand and
verbally identifies and welcomes – J. to his
iChambers™. Simultaneously, multiple
beadlike projectors mounted within the
SynthStone™ walls beam into life a three
dimensional scene and the room becomes
a wood panelled court room. The window
shows a view of the long since demolished
Royal Courts of Justice, the shining sun still
its normal shape. The Judge dons his iWig™
which immediately starts communicating
with the central nervous system terminals in
his neck and stimulating his corneal implants.
The court room now becomes populated as
the AI system displays the avatars of the jury,
barristers and other attendees. A level toned
but disembodied voice speaks, “All rise…”
A fanciful view of the future of court
proceedings perhaps but, as computer
technology advances, what are the
implications for a problem apparently both
caused by and being solved by technology:
that of e-discovery?
The rise of e-discovery and
electronically stored information
The rise of e-discovery as a jargon term on
the lips of almost all litigation lawyers has
its roots in the expression ‘paperless office’.
The phrase, which came to prominence
around 30 years ago, was the dream of
office managers and technologists where
they envisaged the new computer technology
completely replacing paper within years.
However, any litigator will tell you it was a
naught but a pipe-dream, in time-scale at
least, as they still have to review rooms full of
archive boxes to discover the relevant parts.
Sometimes, the only recourse was to throw
staff and hundreds of chargeable hours at
the problem.
However, the eventual proliferation of the
microprocessor and electronic storage media
has lead to a gentle shift in the balance
of power between paper and electronically
stored information (ESI). While the concept
of the paperless office is still not wholly
based in reality—just about any established
company that proudly boasts paperless
systems will still have large numbers of
printed documents in a deep warehouse
archive—now the focus of the litigator’s
problem has largely shifted to the new virtual
world of things such as email archives, CRM
systems, transactional databases, shared
network folders, backup tapes, backup disks
and even a technology that is actually called
“virtualised storage”.
Current Challenges
It appears that litigation support teams are in
a difficult period at present. Technologically
speaking, paper based records are relatively
easy to deal with—most lawyers will be
familiar with the process of scanning paper
into electronic format and being able to
review it in an online system. The age-old
problem remains of how to search through
it all. This problem has been exacerbated
hugely by now having to add in the
exponentially increasing amounts of ESI. It
seems paradoxical that the very systems put
in place to make our lives easier and more
“productive” are making things harder for
us, and, currently, there are no “easy” (or
cheap) ways of taking these virtual vats of
data and making sense of them.
Let us look at some of the particular
difficulties presented to the various involved
parties: lawyers, forensic technology teams
and forensic accountants.
The problem for the lawyer, as mentioned
above, has always been getting the best, most
relevant information in the least time. There
is a trade-off between applying expensive
technological solutions, which may or may
not get the most relevant information (see
below), or doing a page by page review
which takes huge resources and experience.
Additionally, at a recent seminar on this
subject, the point was raised that junior staff
performing the initial review may be less
efficient than a senior, more experienced,
lawyer, but cheaper.
For the forensic technologist, who is tasked
with collecting the information to begin with,
the problems tend to be more logistical. It
follows that, the more data there is, the
longer it will take to collect and collate and,
correspondingly, the longer it will take to
process into a reviewable form. Obviously,
when the term longer is used, this means
more expensive. The collection guys also
have to race to keep up with technological
advances. The old days of performing disk
images onto a tape drive, when a 6GB hard
disk would take all day, are long gone. Now
hard disks in new laptops routinely top
200GB in size and there is a struggle to keep
up to date with expensive forensic hardware
to make acquiring such volumes of data not
only possible within the deadlines, but also
economically viable for the litigator client.
Relevant Data Retrieval
When looking at the task of retrieving
relevant data from a large collection of
documents, or data set, the words precision
and recall are often used. The precision of
a search determines the relevance of the
document(s) returned but does not take into
account whether all relevant documents have
been retrieved. Conversely, recall measures
how well a search has performed in terms
of the number of documents retrieved.
However, it does not measure the relevance
of the documents. This principle is amply
demonstrated when using the traditional
method of interrogating a large data set
without doing a page by page review, that of
key word searching. A client of ours would
regularly ask us to do word searches across
computer evidence data and they would
invariably ask for the word “Spain” to be
included. “Spain” always returned hundreds
(or occasionally thousands) of positive hits –
a high recall factor but with low precision.
However, by clarifying the search term to,
say, “villa and Spain” we might hope to get a
higher precision score.
Thus, the struggle faced by litigators is to
balance these twin factors whilst applying
the most technologically efficient way of
actually performing document retrieval.
However, compared to some of the emerging
technologies, it must be said that searching
for key words is rather a poor relation.
The industry now abounds with terms
like contextualisation, conceptualisation,
categorisation, threading and near
duplication. Apart from the latter, these
are all technologies designed to make the
litigator’s life easier and are broadly aimed
at grouping similar documents in a data set
together, sometimes via a visual interface.
The theory goes that, if all emails suggesting
a quick sojourn to the local hostelry are
clustered together then that grouping can be
safely ignored. Unless, of course, the whole
issue is looking into low staff productivity in
which case the reviewer has hit gold! These
methods are great but, because there is
usually rather a large cost associated with
their application, they are usually reserved
for those cases where the data set is truly
enormous.
Back to the Future
So, what of the future for litigation
technology? It is fairly safe to assume that
the needs of the litigator will remain fairly
constant. This holds true for the expert
as well – those of learning, distilling and
processing the facts into a coherent, logical
and persuasive presentation that retains
integrity in court or other litigation.
Experience will still count, not only in
deciding what the best course of action is
but also in analysing and getting to the nub
of a case. For the Forensic Accounting
Expert, technology can forge highly pertinent
links and equations between data, but it has
yet to replace their intuition in finding and
pursuing a line of enquiry that may support
or undermine an argument, or indeed a
whole litigated case. The bloodhound is yet
to be replaced by K9!
That's not to say that someone will eventually
somehow manage to capture the knowledge
and skills of a litigation professional into an
automatic system - this actually the subject
of some current research where decision-
making in a document review is set to
algorithms.
Where we can hope to see light at the end
of the tunnel is in the routine handling
of information within organisations. At
the moment most ways of automatically
classifying or tagging documents lie in
retrospectively applied technologies, which
are only brought in when needed. If we
assume that data is not going to get more
structured, (indeed the current pattern
indicates a move to less overall structure
in data storage – gone are the days when
each department would have its own file
server) it is imperative that systems which
automatically make sense of the unstructured
become commonplace. We can see a
forerunner of this in a small utility program
called Calais. This is a ‘fact extractor’, which
will analyse a document and record such
information as names, events and places
which can then be fed into an analytical
engine. Document repositories with this
built in will be able to organise and present a
structured view of the information at a single
command.
Finally, developments in artificial intelligence
mean that computers are already nearing
the capability of passing the Turing Test
which determines the ability of a computer
being able to fool a human observer into
thinking they are interacting with another
human. Additionally, robotics technologies
are becoming more and more sophisticated
and cheap. Maybe our online judge from
the opening paragraph will be replaced with
a U.S. Robotics NS-6 (the “I, Judge”™), and
the multiple Terabytes of data will have been
subjected to a page by page review by a huge
bank of RoboParalegals™.
James Stanbury is a Partner and Chris Paley-
Menzies is a Manager at RGL Forensics
28 the barrister
31the barrister30 the barrister
NEWSROUND
UP
The following is a
fictional account based
upon a true story. It
considers the limits of
pro bono support and
acts as a warning to
charitable barristers.
Mr Thompson had been served with a notice
of repossession. He was 63 years old and
had lived in the same house for 9 years. The
landlord claimed that he had not been paying
his rent, however, he disputed that this was
the case. His next door neighbour’s husband
was a barrister. He thought that she might
be able to help him and so he raised the
matter when she saw him in the street. She
kindly agreed to see what she could do. The
neighbour’s husband, a QC, was too busy to
help himself but he asked a junior member
of his chambers (Baby Barrister) to give Mr
Thompson a call.
Baby Barrister listened to Mr Thompson. He
had a good case. In fact there were powerful
arguments for a counterclaim. Mr Thompson,
however, didn’t understand the significance
of a particulars of claim, how to respond to
them or what the court procedure would be.
Acting pro bono Baby Barrister drafted a
Defence and Counterclaim. He met with Mr
Thompson and explained what he had done
for him. He thought it was an interesting case
and he agreed to help him. The Defence and
Counterclaim were served.
The weeks went by and Mr Thompson’s
case progressed. He hadn’t heard from Baby
Barrister for a while and so he contacted his
chambers. The Head Clerk was immediately
concerned. Baby Barrister had broken the
Bar Code of Conduct. He could not represent
or advise Mr Thompson without proper
instruction from a solicitor or similar licensed
body. The Head Clerk refused to accept any
more documentation. Despite his efforts Mr
Thompson couldn’t find help from elsewhere.
In the end, under prepared and with little
legal knowledge, he had no choice but to
represent himself. But he didn’t understand
the Defence or Counterclaim. Mr Thompson
struggled at court, lost the case and his house
was repossessed. Instead of being able to
help, Baby Barrister now faced the prospect
of disciplinary action. He had jeopardised his
career trying to do a good deed.
Unfortunately it is difficult for a barrister to
provide direct pro bono support. If he were
a solicitor he could have provided these
legal services so long as he had indemnity
insurance. A barrister in this situation could
only act for the client if he was 3 years PQE
and had paid the £400 for a direct access
qualification. The vast majority of barristers
still don’t undertake this course. Only 120
or so are listed as undertaking housing law
in the whole of England and Wales. It is not
known how many would entertain pro bono
work. Law Centres, Citizen’s Advice Bureaux
and other pro bono services are overrun.
When there are so many people looking for
pro bono support is it right to deny them
a source of free help from a professional?
While solicitors continue to advance into
territory once firmly the preserve of the Bar,
is it sensible to continue to handicap qualified
practising barristers? What should Baby
Barrister have done?
A barrister can help someone with a legal
problem so long as that help does not
constitute “legal services” as defined by the
Bar Code of conduct. He could have explained
to Mr Thompson what the procedure and
law was relating to repossession. He could
have researched the law on his behalf and
summarised it for him. In essence he could
have educated him on the law by providing
and explaining legal information. What
he could not do was apply the law to Mr
Thompson’s case. He certainly could not
draft documents, advise or represent him.
The rules of conduct for barristers are there
to protect the integrity of the profession. But
when it comes to pro bono work there is a
disparity between the two branches of the
legal profession. In these times of limited legal
aid and high private fees the aim should be to
create as much pro bono support as possible.
Until the code of conduct changes barristers
have to be very wary of any requests for help.
The perils of trying to do a good deedBy David Griffith–Jones, Barrister and Director of Cantaffordalawyer.com
Litigation Costs: In anticipation of the effects of the ominously close Legal Services Act, we have to ask ourselves whether the current litigation model is looking outdated.By Antony Brown, Chief Executive of Bivonas, solicitors and trial lawyers based in the City of London
Barristers and
solicitors used to
work successfully in
tandem; however this
increasingly involves
duplication of costs
which is unacceptable in today’s financial
climate.
The Bank of England Governor, Mervyn
King described the framework as “an arcane
process which allows professionals to earn
vast fees”. The majority of litigants in
England, whether private client or corporate,
know this is a fair statement. Unarguably
litigation is an expensive business and for
some impossible.
The two professions arguably no longer
run in tandem but in parallel resulting in
huge costs for the litigant. Several barrister
have explained to me what drives them to
perfection when preparing for trial and the
answer is the fear factor. The fear of being
made to look foolish by the trial judge, the
appellate judges, by opposing counsel, or
simply the fear of losing; criminal trials have
the added dimension of a jury scrutinising
counsel.
We see evidence of chronic over-manning by
law firms which attend court with an army
of partners, associates and paralegals when
the case is argued by one QC. This is not
going to be sustainable if the sophisticated
consumer wises up to the fact he can identify
niche firms that can deliver quality legal
representation more cost effectively.
E-disclosure has gained much attention
recently with judges and experts calling
for all courts to implement the Commercial
Court Long Trial Recommendations and
demanding that the legal sector takes action.
E-disclosure practice directions are a step
in the right direction but it is hard to accept
that such discussions are taking place in
2008 when the majority of businesses were
probably having similar discussions a decade
ago.
Supported by well managed IT the smaller
niche practice can take on the perceived
Goliaths in the litigation industry. The term
“Magic Circle” only really has a significance
in the areas of Banking and commercial deals
and the term really has no resonance in the
field of litigation.
The Bar aims to generate as much business
directly as it can and is probably more aware
of the parallel system colliding than solicitors.
However the infrastructure of chambers does
not necessarily support the unified litigation
model and the lack of corporate/ collegiate
infrastructure is a serious disadvantage.
The Legal Services Act will be the “big bang”
for the £20 billion legal industry. Now is the
time to look at the structure of law firms and
how we bill our clients. The way forward for
us has to be fixed cost since the time and
expense system in most cases will encourage
delay and higher costs.
Bivonas specialise in civil and criminal fraud
litigation or where commercial disputes have
dishonesty undercurrents. Most cases go to
trial; there is little room for compromise.
We have our own QC, Mark Rainsford and
maintain a paperless office which is able
to manage large volumes of documents
electronically. Mark acts as a conventional
leading counsel or uses his knowledge of
large fraud trials to manage the disclosure
process and trial preparation, making sure
that whatever external counsel receive is
capable of being relied upon at trial.
Antony Brown is Chief Executive of Bivonas
Bivonas are leading solicitors and trial
lawyers based in the City of London. The firm
acts for large scale commercial and criminal
cases and are specialists in fraud and
regulatory litigation, criminal investigations
and prosecutions.
33the barrister32 the barrister
that, if the Government was in imminent danger
of infringing the rule of law, he would speak "first
of all privately to colleagues, and then publicly, if
necessary". He stated that "publicly" meant "on the
floor of the House of Commons or in the public
print".
In the original report, the Committee acknowledged
that it would not be necessary for the Lord Chancellor
to reprimand fellow ministers if they always adhered
to the principle of not commenting on decisions of
individual judges in an inaccurate and intemperate
manner. We suggested that one possible way of
achieving this would be to amend the Ministerial
Code (the code of conduct and guidance on
procedures for ministers, published by the Cabinet
Office) to include reference to the constitutional
conventions which ought to govern public comment
by ministers on judges. Such amendment would
also make the Lord Chancellor’s execution of his
responsibilities in this area easier. We were therefore
pleased that the Government said in their response
that they would "further consider the Committee's
recommendations when the Code is next updated".
In the follow-up Report we reiterated the importance
of amending the Ministerial Code so that it gives
clear and unambiguous guidance to ministers about
how they should or should not comment about
judges in public. We have undertaken to review
the position when the Government next update the
Code.
Other recommendations
The Committee considered the establishment of
the Ministry of Justice - criticised in the original
report on the grounds that the Government failed
to consult with the Lord Chief Justice or the Lord
Chancellor prior to announcing the new department.
In the follow up report we stressed that any future
constitution or machinery of government changes
that impact significantly on the judiciary should
follow consultation with the Lord Chancellor and
Lord Chief Justice at the early stages of the policy
making process.
The Committee also considered the potential role
for the courts in providing guidance to Government
on whether proposed or recently enacted legislation
is compatible with the Human Rights Act. We
recommended a system of advisory declarations
whereby the courts could make a declaration
on the compatibility of legislation after hearing
submissions from two or more parties. We found that
this would avoid legislation being undermined by
on-going legal challenges under the Human Rights
Act. Such advisory judgements would have to be
made after the usual adversarial legal process, so as
to allay fears that such declarations might prejudice
future court cases.
We also recommended in the follow-up Report that
the roles of Lord Chancellor and Secretary of State
for Justice should continue to be combined in a
single office holder as at present.
We agreed with Lord Phillips, the then Lord Chief
Justice that he should continue to publish an annual
report and called on his successors to continue the
practice.
In our original report we concluded that the media
all too often published distorted and irresponsible
coverage of the judiciary, treating judges as 'fair
game'. A responsible press should show greater
restraint and should desist from blaming judges
for their interpretation of legislation passed by
politicians. In order to ensure more responsible
reporting, we recommended that the Editors' Code of
Practice, which is enforced by the Press Complaints
Commission, be regularly updated to reflect these
principles. In the follow-up report we re-iterate
these concerns and stressed that media coverage of
legal judgements should be factually accurate and
temperately expressed to avoid repetitions of the
mistakes in the Craig Sweeney case. This should
be reflected in the Editors Code of Practice and the
Committee expect to see an outcome to the Editors’
Code of Practice Committee’s deliberation which
will respond to our concerns.
Our reports on these issues have come at a time of
significant change for the Judiciary and the legal
profession. We hope to have made a contribution to
ensuring that the changes being undertaken do not
undermine judicial independence. We will continue
to scrutinise the Government’s commitment to
changes to the Ministerial Code and any future
reforms of the Judiciary or court systems.
Lord Goodlad, Chairman of the House of Lords
Constitution Committee
1 http://www.publications.parliament.uk/pa/
ld200607/ldselect/ldconst/151/15102.htm
2 http://www.publications.parliament.uk/pa/
ld200708/ldselect/ldconst/177/17703.htm
series of recommendations to both the
Government and the judiciary. The report
focused upon the impact of the Human
Rights Act 1998, the Constitutional
Reform Act 2005 and the creation of the Ministry of
Justice, which occurred during the inquiry.
In the report, we emphasised the importance of
the Lord Chancellor’s fulfilling the duty to defend
the independence of the judiciary (recognised by
section 3 of the Constitutional Reform Act 2005)
by ensuring that ministers do not impugn individual
judges (and to restrain and reprimand those who
do so) and recommended the inclusion in the
Ministerial Code of "strongly worded guidelines
setting out the principles governing public
comment by ministers on individual judges". This
recommendation followed the Craig Sweeney case,
where the then Home Secretary the Rt Hon John
Reid MP had publicly criticised a legal judgement.
We also criticised the Government's handling of the
creation of the Ministry of Justice and called for
a transparent process for the setting of the budget
of Her Majesty's Courts Service, with appropriate
judicial involvement. Other recommendations to
the Government concerned the status of the Lord
Chancellor, the involvement of the Law Officers
in policy-making and legislative drafting, and the
possible use of advisory declarations by the courts
to rule on whether recently enacted legislation is
compatible or incompatible with the Human Rights
Act.
The report also examined the judiciary's channels of
communication with the media and the public. Whilst
the Committee criticised sections of the media for
irresponsible coverage of judges, we also concluded
that the senior judiciary should act more quickly
in explaining judicial decisions in controversial
cases and recommended that "consideration be
given to appointing one or more spokesmen with
appropriate qualifications and legal experience who
would be permitted to speak to the media with the
aim of securing coverage which accurately reflects
the judgment or sentencing decision". We also
considered the appearance of judges before select
committees, the role of the Lord Chief Justice and
his annual report, and the interaction of individual
judges with the media.
Follow up Report
In October 2007 the Government published their
response to the Committee’s report and the Lord
Chancellor, Jack Straw MP, gave evidence to the
Committee. The judiciary also provided a response
that month—their first to a select committee of
Parliament—and the then Lord Chief Justice, Lord
Phillips of Worth Matravers, subsequently gave
evidence to the Committee on two occasions. We
sent a copy of our report to Sir Christopher Meyer,
Chairman of the Press Complaints Commission
(PCC). This was followed by correspondence with
the Editors' Code of Practice Committee which
reviews the Code.
The Committee took account of the two responses,
the three oral evidence sessions and the subsequent
correspondence and on 16 October published a
further report2. Our aim in publishing the follow-
up report was to analyse the responses by the
Government and judiciary and to assess progress
made since the original report.
Amending the Ministerial Code
The first recommendation in the follow-up Report
related to the Ministerial Code. In our original
report we had discussed in particular the political
reaction to the Craig Sweeney case. Sweeney was
sentenced to life imprisonment for abducting and
sexually assaulting a three-year-old girl in June 2006
but, in accordance with the sentencing guidelines,
he was given a minimum tariff of five years and
108 days. The then Home Secretary, Dr John Reid
MP, subsequently attacked the sentence as "unduly
lenient" and asked the Attorney General to examine
the case as the tariff "does not reflect the seriousness
of the crime". On a BBC Radio 4 programme, Vera
Baird MP, then Parliamentary Under-Secretary at
the Department for Constitutional Affairs, stated
that the sentence was wrong (an assertion she
later acknowledged was incorrect and for which
she issued a formal apology). In the Committee’s
original report, we found that there had been a
"systemic failure" in the operation of the new
relationship between the Lord Chancellor and the
judiciary, concluding that Lord Falconer, then Lord
Chancellor, had failed to fulfil his duty to ensure
that ministers do not impugn individual judges and
to restrain and reprimand those who do so. We
also concluded that the senior judiciary could have
reacted more quickly to what the Committee saw as
inflammatory and unfair press coverage following
the sentencing decision.
The Government’s response to our original report
did not accept our criticism of the conduct of Lord
Falconer. The Committee expressed disappointment.
Whilst Lord Falconer eventually spoke out "fully
and forcefully in public in defence of the judge in
the Sweeney case", we believed that he should have
done so sooner and that the Government should
have disassociated themselves more quickly from
the comments of the Home Secretary. It remains
our view that the Home Secretary's comments were
wholly inappropriate.
The Government response stated that Lord
Falconer's successor, Jack Straw MP, "will not shirk
his responsibility in reminding ministers that they
need to be extremely careful not to attack judges".
In oral evidence, Mr Straw commented that "we [the
Government] are regularly going to be respondents
to actions and quite frequently will lose those, and
we have to take it on the chin without a huge amount
of complaint" and that "we may regret a particular
decision and we are entitled to say that, but not to
do that in a disrespectful way". He also made clear
p.1
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