Unprecedented Cardiff
University Law Society Magazine 2013-14 | AUTUMN
Proudly Sponsored By:
NEW HEAD OF SCHOOL Professor Dan Wincott TOUCH, PAUSE, ENGAGE! Supporting WRU Law Rugby
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DIARY Â DATES: Â SEMESTER Â 2
January:  First  week  back  (TBC)  -  Law  Ball  Ticket  Sales!  23rd  -  Second  Year  Mooting  Semi  Finals!   24th  -  Third  Year  Mooting  Semi  Finals!  29th  -  Inns  of  Court  Trip!
February:  25th  -  Slaughter  &  May  Interview  Workshop!  28th  -  Mooting  Final  @  the  Supreme  Court!
March:  1st  -  Law  Ball  @  City  Hall!  14th  (TBC)  -  Sports  Tournament  in  Manchester! Â
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FROM THE EDITOR
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s the first Semester draws to a close, it is no exaggeration to say that it has been a busy term for Cardiff University Law Society.
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CONTENTS 4: Success at the Society Awards 6: SHAG! 7: Hogan Lovells Feature
Passionate about continuing the success of 2012-13, we hope you agree that the changes we have made to the Society since our handover date in July are already having a positive effect.
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8: Touch, Pause, Engage! WRU Law Rugby! 10: Head of School: Professor Dan Wincott 11: Allen & Overy Feature
We caught up with new Head of School, Professor Dan Wincott to ask him about his journey to the helm. We also met with Dr. Russell Sandberg and Professor Norman Doe for our first ever ‘Staff Feature’! This is hopefully the start of a great tradition and something we hope will enable Unprecedented to work more closely with the Law School in future.
1 2 : U n p re c e d e n t e d O p i n i o n : Alexandra Thornton-Reid & Kelly Stant 14: Unprecedented Advice: Ben Marshall & Lowri Morgan 16: Macfarlanes Feature
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This term has also seen a very successful change to the situation with Law Rugby. Thanks to our Sports Secretary Matt Hodgson, the team has been registered with the WRU!
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‘Networking November’ has been a great success and we have prepared the first episode of Unprecedented TV! We have also arranged many more career development opportunities for next term and our Sub-Committees are stronger than ever. Without our generous sponsors, this would not have been possible and we are especially grateful to our Unprecedented title sponsor CMS.
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We hope you enjoy the new look Unprecedented!
Chloe Halloran Chloe Halloran, Editor
18: Staff Feature: Dr. Russell Sandberg & Professor Norman Doe 20: What’s in the news? Tamsin Best & Jade Cox 22: The Legal Landscape: Jane Heard 24: Another perspective: David Mc Keown 25: @CULAWSOC T hinks: Chelsea Mitchell 26: Burgess Salmon Feature
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Success at the Society Awards At the 2012-13 Society Awards, the Law Society were delighted to collect the accolades of ‘Best Big Society’ and Runner Up ‘Most Improved Society’. After a fantastic year in the history of society, the awards were wholly deserved and a result of many hours of hard work by the committee of ’12-’13. Isaac Paine, President 2012-13, caught up with Unprecedented to reflect on the successes of his committee.
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Q: Firstly, congratulations! How did it feel to win ‘Best Big Society’?! The Law Society hadn’t won an award before, so it was a fantastic surprise given the calibre of short-listed societies we were up against! Most of all, I felt thankful for all the hard work that the others on the Committee had put in – their determination made it all possible.
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Q: What do you think clinched the award in the minds of the judges? A tough question. Rumour has it that Rhys Jenkins, who was then Treasurer, wrote a threepage list of reasons why we deserved the award… so perhaps the Students’ Union felt overwhelmed and just gave in! It’s difficult to compare societies whose purposes are different. As a course-based society, the Law Society exists to enrich the experience of our members, who tend to be law students or those with an interest in practising law. That’s a pretty big ambit, allowing us to
put on a whole variety of activities, ranging from epic socials to career- and skills-based workshops. I suppose the Students’ Union thought we were ticking all the boxes, given the type of society we are.
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Q: Having collected the award for Runner Up Most Improved Society, you must be very proud of the transformation engineered and implemented within the last year. You must have had a game plan, what was at the forefront of your thinking? Just before I was elected as President, I asked hundreds of law students in person what their honest thoughts and opinions about the Law Society were. This led to a huge pile of feedback forms, which we could then use to discover the areas in which we needed to improve. We also ran several surveys throughout the year. Our game-plan (if you can call it that) was just to work as hard as we could to implement those recommendations, which infiltrated nearly every aspect of the Law Society.
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Q: The Law Society flourished in terms of sponsorship. What should our members take from such a high level of interest from top city firms? Law firms don’t sponsor every Law Society; they carefully target the universities whose students they want to recruit. So it’s a very positive reflection on the profession’s interest in Cardiff graduates. It means that students should not be afraid to
apply to the top law firms because they stand a real chance of success, provided they’re on a good 2.1 and have a solid range of extra-curricular activities under their belt.
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Q: You asked this question to the Presidential candidates at our election hustings, now it’s your turn… What does the Law Society mean to you? It played a huge role during my time as a student at Cardiff. I met some great friends through the Law Society and really felt part of Cardiff Law School when I got involved in everything it had to offer. It also helped me to decide which career path I wanted to follow, having initially been somewhat indecisive, and then to develop – slowly but surely – the traits recruiters look for in prospective trainees. So on that level I have a lot to thank the Law Society for. The Law Society means a lot to me – not just because of what it did for me, but for what I know it can do for others.
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Q: Finally, how do you see it evolving in future? There’s still ample room for improvement. I expect to see our sponsorship increase year on year because there are still plenty of law firms out there who we can develop relationships with. I think it would be great if more non-lawyers who are serious about the profession got involved. Perhaps that’s something that could be achieved by collaborating with other course-based societies! I also see scope for more skills-based workshops and networking events. The Public Speaking Series started in
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2011, which continues to help loads of students feel confident when addressing large audiences. It would be great to see new initiatives of this sort that cater to the variety of interests our vast membership has.
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More than just a gimmick! We just thought we’d give you a heads up...
SHAG is
back! Bigger, better and with more law students on the Exec Committee than ever before: which is good – we need more lawyers… no matter what the rest of society think! If you know us at all, it’ll probably be for our name… SHAG, the Sexual Health Awareness Group. Gimmicky isn’t it? Well we think so, but if the only way to cram sexual health advice down your throat is by using a stretched acronym so be it! It does mean that Facebook is constantly censoring our posts but eh… what the hell. Now here’s the thing Unprecedented: law students don’t just have sex with law students. And that’s good, because the only thing to come from that would be paperwork and more lawyers. So we work for everyone – the whole of Cardiff University student body. We’re a student led service dedicated to increasing awareness and understanding of fundamental sexual health issues. Our gimmicky name should not detract from how important our mission statement is. None of us are paid a penny and yet we are the only Cardiff University service championing your sexual health welfare. To get serious for a moment, there are more than 100,000 in the UK currently living with HIV. What’s really scary is that a quarter of them don’t realise it. It’s all very well reading that and thinking ‘it’ll never happen to me’, but there are more than 6,000 people newly diagnosed every year who wished they’d taken responsibility while they had the chance. Now HIV isn’t only transmissible through unprotected sex and at SHAG we spend just as much time trying to break down the totally unjustified social stigma that surrounds HIV as we do asking you to wrap your tool. But prevention is so much better than dealing with the misery that all STIs bring. We love lawyers Unprecedented – we have 4 on the Exec so far this year – including the President. Promoting Sexual Health is a costly-business. Resources are tight and budgets are squeezed and it’s all too easy to ignore a massive number of 18 – 24 year olds suffering with STIs in silence and shame. Lawyers have a way of putting things to bring the situation home. Maybe it’s the work-hard-play-hard mentality that Dave in reception extrudes! But you guys seem to care more – you get it and we want you to help us! Get involved with SHAG. There are so many things we want to do this year. Maybe you want to become an Officer on our Exec, or even if it’s only a few hours volunteering on World Aids Day – either way we need you. Email the President – shag@cardiff.ac.uk or visit our website CUshag.com. Thanks for reading!
Play safe guys, Your SHAG Exec. X
Bethan Mitchell
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Joined: September 2011
Degree: LLB Law, Cardiff University
Currently doing: Litigation
Office location: Hong Kong
Favourite film: Snatch I first came into contact with Hogan Lovells at the Cardiff University law fair. The people I spoke to were welcoming, approachable and enthusiastic about their work, which is something that I have continued to find during my time at the firm. At that stage I did not know which area of law I was interested in, so the firm's broad range of corporate and commercial practice areas appealed to me. I was also struck by the emphasis on pro bono work, which is something I have really enjoyed getting involved with as a trainee. After finishing my degree in 2010 I took six months off, during which time I travelled in the USA and Asia, before completing the accelerated LPC at BPP in London. I started at Hogan Lovells in September 2011, and my first two seats were in capital markets and business restructuring and insolvency. I then sat in litigation, more specifically the contentious insolvency and fraud team, and I will be qualifying in that group in September. I enjoyed working on high-value, high-profile disputes and the quality of work I was given on a real variety of cases gave me a broad range of experience. I enjoy working at Hogan Lovells because it combines high quality legal work with a supportive and open working environment. From day one I have felt like part of the team, and I think trainees are pushed and encouraged to improve their skills throughout the training contract. A lot of the work that I have been involved in has a multi-jurisdictional element, and I am currently on secondment in Hong Kong, which is one of the great advantages of working for a truly international law firm. The best advice that I can give to someone applying for a training contract is to take the time to work out what kind of firm is right for you. Although there are many similarities, each firm is different and it is important to find a firm with a working environment and culture that you see yourself thriving in.
The best of all worlds. All in one place. Careers in law Working with international offices should feel seamless. Yet not every firm works this way. Even fewer do it with the strong sense of shared culture and collaboration that we have fostered at Hogan Lovells. We routinely tackle complex, high profile cross-border deals; but we always tackle them as one. That’s why for us, and your career, this is the best of all worlds. www.hoganlovells.com/graduates
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Law Rugby - Why only now? By Matt Hodgson, Sports Secretary This year saw the creation of the law society's first ever WRU official rugby team; an event which this year’s committee is immensely proud of. Rugby is a massive part of the Welsh culture and so being able to offer this opportunity to students is beneficial on so many levels. The team will be playing against other law society teams from around the country in both exhibition games and in tournaments such as the Manchester Law Sports tournament which will be happening in March 2014.
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Why it has taken so long to establish an official rugby team though is not an easy question to answer. Rugby at Cardiff
University is a surprisingly contentious issue. There is no Inter Mural Rugby league as there is for football and netball and while a number of simple answers can be given to explain this, these would neither be correct nor reflect the complexity of the situation. So in the interests of clarity, it is my aim to explain to you the real deal about rugby at Cardiff University.
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The place to start in explaining why there is no IMG rugby league at Cardiff is the Welsh Rugby Union (WRU). The WRU is a national body governs all aspects of rugby in Wales. Their code of practice for games of senior rugby require that all teams are
insured, previously assessed to be competent enough to play the game safely and that all games be officiated by an official WRU qualified referee. Although breaking these rules is not necessary illegal, those organising senior rugby matches have a duty to hold these games to the best possible code of practice to minimise injury; therefore those not following these guidelines leave themselves vulnerable to tortious claims. This brings us on to the role of the Cardiff Student's Union. Now it is important to point out from the off set that the Cardiff Student’s Union is not to blame for the lack of an IMG league; their hands are tied on
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the matter. The Union cannot organise sporting events unless all the players are insured and the games are played in accordance with official code of practice. In this case the rules of the WRU. This means that alongside paying for pitches, insurance, medical staff and other administrative fees, the Union would have also to pay for official referees for all games, as well as the fee to register all teams with the WRU. The result would be a large bill for the Union which would have to be compensated by a very high registration fee for participating teams. Overall, a rugby IMG league would simply cost more than both parties are able to pay.
play sports. Similarly, the Union could organise games only to find that the referee deems the teams incompetent to play, meaning all games are at risk of never even taking place.
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the first opportunity to actually have rugby matches. With this opportunity in mind, the current committee made it a priority to create a legally registered WRU rugby team. Through correspondence with the national and the local administrators responsible for the governance of rugby, we were able to insure and register the team who can now play in any game sanctioned by the WRU and governed by their official referees. This still means that more work is required when trying to organise the games themselves, but I hope you will agree that it is a very promising start.
As we can see then, there is limited chance of an IMG rugby league being set up at Cardiff. The Union, therefore, have had to discourage people from taking part in illegitimate senior rugby games. While this is very hard to police in terms of players organising games on their own volition, the Union have introduced a disciplinary initiative to prevent Societies from encouraging unofficial rugby games and it is for this reason So with the team set up and that the Law Society has never raring to go, we can now only had a rugby team. wish them luck for the upcoming season. To actually have an The Union's policy is that official Rugby Team is more than Societies found encouraging the many of the committee could practice of unsafe senior rugby have hoped for but hopefully, in will receive disciplinary action doing what we have done, we ranging from warnings to loss of h a v e n o t o n l y c r e a t e d a n c e r t a i n p r i v i l e g e s t o t h e opportunity for people to play the disbandment of the Society all game they love, but created a together. The outcome therefore legacy that will affect the is that while previous Law university experience of law Societies have wanted to gather students for years to come. rugby enthusiasts from the Law School for training or socials etc. this would have be deemed as encouraging unofficial rugby and would harm the Society or result in the end of the Society as a whole.
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!“With this opportunity in ! !mind, the current committee ! !made it a priority to create ! !a legally registered WRU !rugby team.� But money is not the only factor holding back an IMG Rugby League and we now move on to the impact of the WRU referees. The job of these official WRU referees is not only to make the game fair etc. but, as mentioned above, to also make sure that both teams are competent enough to play the game safely. If the referee believes that a team falls short of this standard, they are obliged to call off the game in the interest of safety. The problem with this is that unlike the football IMG league, for example, where a team can play regardless of ability, an IMG rugby team would have to be full of players of a very high standard. This would arguably defeat the object of IMG in general which is to allow people of all abilities to
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This has been the problem with trying to have an affiliated Law Society rugby team up until now.
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So how has this now been fixed? Well this year will see the first time the Law Society has planned to play in inter university competitions; meaning that in the absence of an IMG league, this is
Matt Hodgson
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A new Head of School 30 minutes with Professor Dan Wincott By his own admission, Professor Dan Wincott isn’t really a lawyer! Dan studied Politics and Economics for his Undergraduate Degree and went on to a Masters at Manchester before completed his PhD at the LSE.
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Dan’s first academic job was in the Politics department at Leicester, where he was given a teaching allocation on the EU. Developing an interest in this area, he started to research and publish work on EU constitutionalism and the European Central Bank.
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A few years later, an opportunity to teach Law and Politics focusing on EU regulation came up at Warwick. Working in the Law School and Politics Department, which enabled Dan to get more involved in legal research. Initially, he concentrated on the law and policy of the EU but then worked more widely on constitutional questions, social rights and social law.
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Dan reminisces that at this time he got to know a really interesting group of lawyers working in various Law Schools – a network of EU Law specialists with whom he still has contact. He then moved back to a politics department at the University of Birmingham, but continued with his interest in law. Dan edited a book with Tony Arnold, a Law Professor and EU specialist, whilst continuing to work across the two areas.
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Through his work, Dan knew a few people at Cardiff Law School, including Jo Hunt and Melanie Smith. A job came up at the Law School and he got it - the rest as they say is history!
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When asked about his vision for his time as Head of School, Dan immediately jumped to the fact that he believes Law Schools have both a vocational purpose and academic mission, and he wants to develop both aspects at Cardiff. For example, increasingly, teaching staff will have done a PhD, but the process of research training for PhDs hasn't been as well developed in Law Schools as in some other parts of the University. Dan has worked a lot with PhD students and before becoming a Professor at Cardiff; here he has developed a package of research training for those thinking of an academic career. Dan also hopes to capitalise on the School’s success in recent years in obtaining recognition from research councils to fund PhD studentships.
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noted that the trick is not to become too narrowly focused…
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“Following your interests will make you stand out.”
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Dan thinks that the employers notice intrinsic interests and passions. But even if you’ve decided you don’t want a career in law, following your interests will help you to achieve your full potential as a law student at Cardiff. The point of University education is to challenge yourself and think in new ways, which will often confuse you and make you feel uncomfortable, finding your way through the confusion is part and parcel to a degree! Dan commented that trying new things and thinking in new ways is u se f u l v ocati onal l y and an important part of University whatever you study.
Commenting on the vibrant and up and coming nature of our Capital City and the proximity of the Law School to the institutions of Welsh Government, Dan believes the Law School is well placed to continue to build links and vocational opportunities with external partners located on our doorstep, as well as continuing to All at Cardiff University Law develop the vocational element to Society wish Dan good luck for teaching. the coming years and hope to strengthen links between the When asked if he had any top tips Society and Law School. for young lawyers at Cardiff, he
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A CAREER IN LAW
Setting precedents, not following them‌ because tomorrow will not be like today.
www.aograduate.com @AllenOveryGrads | www.facebook.com/allenoverygrads
Unprecedented
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OPINION
Women Bishops.
By Alexandra Thornton-Reid In September 2013 the Anglican Church in Wales voted to approve the consecration of women bishops, and Ireland appointed their first woman bishop. With Scotland having allowed women to be elevated to this rank since 2003, England has now been left out in the cold, the odd one out in the United Kingdom, to be the only country which has not voted in support of this change.
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Admitting women to the orders of deacon, priest and bishop has been on the agenda of the Church Assembly since 1966, and the ordination of women priests was approved by the General Synod in 1992, with the first ordinations taking place in 1994. However, the issue of women bishops remain unresolved, and is causing divisions within the Church of England.
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In the Anglican church there are 27 women bishops in active ministry, with the first woman bishop being ordained in 1989 in the United States of America. In England, a motion to debate women bishops was first put forward in July 2000, and after a strenuous 12 year legislative process the moment came in November 2012 - the final approval of the measure.
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Cue disappointment. The measure was passed in the House of Bishops, the House of Clergy, but failed to reach the required two-third majority in the House of Laity by only 6 votes.
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To lose the vote by such a small amount was devastating, and the results of the voting revealed in the other Houses demonstrated an overwhelming support for the measure just added to the blow. There was clear support for women bishops, and to fall at the final hurdle, by
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so little, has had a huge impact on the general perception of the Church of England, enhancing the idea that the Church is outdated.
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Within the House of Laity it was the Conservative catholics and the Evangelicals who opposed the introduction of women bishops on the basis of literalism and traditionalism. These groups hold a high view of scripture, and argue that women should not have superior roles within the church. They are specifically concerned about the spiritual authority to ordain, a key function of the bishop’s role which they believe women to be unable to perform - a theological impossibility. This is based on the traditional view that one of the roles of the priest is to represent Christ, and as Christ was male, women are not able to sufficiently act as Christ’s representative by the virtue of being female.
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However, what they fail to do is to appreciate the historical context of this view, furthermore, they do not take our current social context into account.
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For an institution that has already been heavily criticised for being patriarchal, outdated and set in its traditions, quite frankly, the Church of England is not doing itself any favours. The role of women in society has changed dramatically in the past 100 years, but the failure of the Church of England to allow women bishops reminds us that the battle is not yet over, we still have a way to go in the fight for true equality.
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The ‘Elephant’ in the Courtroom. By Kelly Stant ‘Under our system of government these are matters for Parliament to decide, representing society as a whole, after Parliamentary scrutiny, and not for the court on the facts of an individual case or cases.’1
issues simply because they are controversial. People feel strongly about certain issues and the population is often divided.
In R v Nicklinson the court used the excuse of Parliamentary Sovereignty not to make a decision on a sensitive matter, that being the issue of whether to change the law on euthanasia. The question I ask is this: does Parliamentary Sovereignty always take priority in the UK? If so why does Parliament not spend time looking at many of the sensitive issues faced by society today?
Therefore if Parliament were to make a major change such as allowing Euthanasia in the United Kingdom, it may cause great upset among many people. This may therefore lose votes, which each Political Party wishes to avoid. They do not want to lose votes by causing agitation to members of the electorate and also run the risk of a back bench rebellion if other party members are unhappy; so consequently they do not make a decision either way.
Parliamentary Sovereignty and the Common Law Dicey stated that Parliament has the right to make any law and no person or body can override statute.2 This includes Judges in court. If Parliament creates an Act then it is Law and no other body may question the decision. However, in the past this has been contradicted. In a previous case of Anderton v Ryan3, the court made a decision which went against an Act of Parliament regarding impossibility in attempted crimes. They later overturned their decision to keep with the Act in Shivpuri 4 , but this example demonstrates how Judges do not always agree with an Act and often try to interpret it to coincide with their own views instead of the actual intention of Parliament. Further to this Judges are responsible for the making of the Common Law. Where there is no Act of Parliament then courts have taken a decision themselves. This forms a precedent that is used in the future. Therefore the court has power to make many decisions. One of those decisions made was the definition of murder given by Lord Coke in the 17th Century. There is currently no Act governing murder although this is being looked at by Parliament currently; it has taken 4 centuries to be considered. However Judges still shy away from making any controversial decisions, saying it ‘is a matter for Parliament’. Fear of Public Opinion So Judges confirm that responsibility for such decisions lies with Parliament under Parliamentary Sovereignty as they are the elected body. Parliament however does not then look at such issues. They are ignored or dismissed or excuses are made such as there are more pressing issues to deal with and a lack of time. I believe the reality to be different. Parliament avoids having to look at controversial
The Future It is not known whether any further decisions will be made in the future, it is unlikely that any more major controversial change will be made by the current Parliament. Many changes that have been made in the past are due to lobbying mainly by pressure groups. Examples where pressure groups have been successful in causing change include The League against Cruel Sports in the introduction of the Hunting Act 2004 and The Gurkha Justice Campaign led by Joanna Lumley in support of those who had served for the British Army to be granted settlement in the UK.5 The Abortion Act 1967 was a controversial act which started as a Private Member’s bill, introduced by David Steel.6 This is one example of where a sensitive issue has been raised and a decision made in the past. A much more recent decision is that of allowing Gay Marriage. This was a controversial decision but passed through Parliament this year. David Cameron tweeted: “After a long parliamentary process gay marriage became law tonight - something I believe we can be proud of as a country.” This was to allow more freedom and equality in the nation. This decision may have offended people with particular views, but it is a decision that will not cause any harm. Further decisions may be made by different Parliaments in the future, but only time can tell and we may be waiting a long time before any new major changes occur in the United Kingdom.
1. R v Nicklinson [2012] EWHC 2381 (Admin), 40. 2. Introduction to the Study of the Law of the Constitution (1985) 3. Anderton v Ryan [1985] 2 WLR 23. 4. R v Shivpuri [1987] AC 1. 5. Joanna Lumley, ‘The Gurkha Justice Campaign’ < http://www.gurkhajustice.org.uk> 6. David Steel, ‘There is no case for changing the Abortion Act’ The Independent (30th April 2008).
Unprecedented
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ADVICE
Looking back @ First Year. By Ben Marshall After thoroughly enjoying Sixth Form I was really hoping that university would live up to all the expectations I inevitably had. Everyone I spoke to that had experienced it and they didn’t have a bad word to say, basically telling me that I had absolutely nothing to worry about as it was the best period of their lives, although I was quietly sceptical, especially because Cardiff wasn’t my first choice.
my least favourite, mostly due to the fact that I didn’t really see any need for it!
Fortunately enough for me I had one of the best years of my life, meeting some amazing people and actually, to my surprise, enjoying the majority of the work! When first enrolling I did get this feeling that everything was just slightly overwhelming, there was so much that had to be done, truck loads of books to buy, forms to be filled out, societies to join, and of course, plenty of alcohol to be consumed!
In the run up to the exams my smugness from the exam-free January I had enjoyed was quickly dispelled. It quite quickly hit me that I had a LOT of revision to complete, the fact that the amount of cases to be learnt was in the hundreds felt soul destroying. Luckily, I started revising really early and gave myself enough time to just about get through everything, something I’d advise everyone to do as the exams really do creep up on you rather fast! When the time came I really hadn’t ever felt as nervous about anything, I remember sitting in the Criminal exam feeling almost sick with nerves! Eventually, however, things do get better and by the final exam I felt a lot more relaxed, perhaps too relaxed as it was Legal Foundations and all I could think about was finishing for the summer!
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I would say when first starting out it’s important to just be open to all of the opportunities in front of you and to make as many friends as you can, try not to be a bore! For me it wasn’t until around mid November that I started to get to grips with everything, discovering that actually doing the work for the tutorials properly, not just listening to lectures online, was of great benefit to me.
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As I was completely new to law in general having not done it at A-Level, I was rather open minded when it came to what I thought I would enjoy. At first I thought Public was the most enjoyable, probably because Norman Doe is such a random and funny man! During the first semester it emerged that for me Contract Law was by far the best, with Legal Foundations being
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With this new enthusiasm and interest for Contract law, and the fact that the Law School and Society were always encouraging us to apply to first year open days at commercial firms, I thought I would give it a go. I hardly had any confidence in my self to succeed in getting a place so I only applied to about four. As expected, I was swiftly rejected from the first few that I applied to and thought perhaps I just wouldn’t succeed. With this in mind I applied to one last Insight Day at Clifford Chance, because of my first year ignorance I really had no idea how much of a powerhouse CC is in commercial law and I did the application along the same lines as the others. To my shock I actually secured a place on the one-day scheme in July 2013 giving me something to really look forward to, although I was all too aware that I had to get through the dreaded exam period before I could make my way up to Canary Wharf.
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When results day finally came around I really was quite pleased with my results, especially since I knew I could try just that bit harder in the second year. Overall I wouldn’t change much about my first year, perhaps doing more of the reading would have benefited me but that can easily be rectified. My advise to anyone who is starting out is to just go for everything possible but stay organised because without organisation an LLB is definitely a struggle!
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A taste of the â&#x20AC;&#x2DC;Silver Circleâ&#x20AC;&#x2122; By Lowri Morgan
In April, after a successful application process I was given the amazing opportunity to attend a two day insight programme at Herbert Smith Freehills in London. Besides the fact that the firm funded the entire experience from high quality buffet lunches to accommodation in a 4* Convent Garden hotel, the experience gained from an insight into such a prestigious Commercial Law firm is highly recommended. The first day was spent mostly with introductions to the firm. I was impressed by how large the firm is, with offices all over the world in Europe, Africa, Australia, America, Asia and the Middle East. During training contracts you have the opportunity to spend one seat (6 months) in one of the multiple overseas offices. Some offices even have accommodation and travel paid for. The initial talks also explained what the training involves and even included hints and tips of how to get onto training contracts and what firms look for in a potential trainee. A standard training contract lasts 2 years with four seats in different sectors. You would be expected to do one contentious and one uncontentious seat. Herbies prefer you to do these seats in corporate and litigation. Following the introductions, there was an ADR workshop, in which you are given a situation and, in teams of 4, you have to resolve a dispute using the conditions given to you by the client. This is aimed at testing your negotiation
skills, and assessing how well you can understand the requirements of the client. Although the workshop is designed to test you, you also get instruction and constructive feedback which was most helpful. The day in the office concluded with 'speed dating', where you move around tables, all of which have 3 representatives from different areas of the firm, and have 10 minutes with each to find out what they do. The evening event was an excursion to the world famous Shard. After witnessing the amazing views of the city we were treated to a pizza and drinks networking buffet. This is a brilliant opportunity to meet associates and partners in a much more relaxed environment. I was able to get a real feel of the employees, how approachable they were and the relationships you can build with colleagues of all levels, I got the sense that they all felt part of the Herbies team and were proud to be so. The second day began with a corporate workshop. Again, working on instructions from a fictional client, the exercise involved negotiating the sale of a company with various restrictions on your bargaining power. The feedback and group discussion was most enlightening. This section was followed by the opportunity to shadow a current trainee from the firm. In these four hours you are treated as an employee of Herbert Smith Freehills and are given tasks such as reading or proof reading various documents. These few hours give a real hand on insight not only into what is expected of you as a trainee, but also gave an invaluable assurance of the amount of support received from superiors. It was these few hours that I enjoyed the most. I left Herbies feeling extremely motivated. I loved the feel of the company and the whole ethos we were introduced to. While I was under no delusions about the level of commitment, quality and amount of work that is expected from the trainees I also felt that the rewards both financial and in the level of Job satisfaction and opportunities available were considerably, more than worth the effort. A highly beneficial insight experience I would recommend to everyone.
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TRAINEE PROFILE CHARLOTTE YOUNGS
I have taken a slightly unusual route to obtaining my training contract at Macfarlanes. I enjoyed studying law and politics at Cardiff University and after graduating I took a year out to travel for six months in South America. In my gap year I had two jobs; being an admissions assistant at a sixth-form college and working at my local pub. I enjoyed both roles, but I realised that pursuing a career in law would provide me with a career that was interesting and challenged me intellectually.
CHARLOTTE YOUNGS JOINED AS TRAINEE: MARCH 2013 EDUCATION: CORPORATE – M&A; INVESTMENT FUNDS AND FINANCIAL SERVICES GROUP SEATS: CORPORATE – M&A; INVESTMENT FUNDS AND FINANCIAL SERVICES GROUP
I did not secure a training contract during my LPC and so upon leaving law school I applied for various paralegal roles (whilst still applying for training contracts). I was offered a paralegal role at a boutique law firm in Mayfair called D Harris & Co International (DHCI). This was my “foot in the door” and was an excellent role to prepare me for becoming a trainee. While I was working at DHCI, the firm merged with Macfarlanes and formed the Macfarlanes’ Derivatives and Trading department. APPLYING FOR A TRAINING CONTRACT – WHY MACFARLANES? Having already worked for Macfarlanes, it was an easy decision to apply for a training contract here. As a paralegal I benefitted from the excellent training that all feeearners receive and I enjoyed working within a collegiate ethos that fosters exacting high standards and first rate client care. Additionally, being able to get involved with social and charity events, such as a sponsored run and a summer choral concert, I knew I had found a firm that suited me.
www.macfarlanes.com
If you are thinking about a career in law, try to get as much work experience as possible, both through ad-hoc placements and vacation schemes. In interviews and while on work experience, remember the skills you have developed from your extra-curricular activities and part-time jobs, you have more transferrable skills than you realise! Perseverance is also important and to always ask for feedback (if offered). LIFE AS A TRAINEE I have enjoyed being involved in a broad range of work with each matter having its own complexity. Corporate – M&A trainees are given a lot of responsibility, for example I coordinated the completion of the purchase of a consumer credit company by a US private equity house, which involved daily contact with our client and two separate completion meetings. I am now in the Investment Funds department where, in my first month, I have already completed first drafts of an investment management agreement and a private placement memorandum, assisted with advising a large sovereign wealth fund on their investments and attended client meetings. My first seven months have been rewarding and have exceeded my initial expectations. In particular, I already feel I have started to develop the skills required to fulfil my full potential as a qualified solicitor.
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MAKERS OF FINE LAWYERS We have a single objective: to create lawyers of extraordinary quality. We carefully select and nurture individuals with character, commitment and curiosity. We then give them the opportunities and the support they need to become exceptional lawyers, capable of advising the worldâ&#x20AC;&#x2122;s leading businesses and business leaders. www.macfarlanes.com
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Staff feature: Dr. Russell Sandberg & New to Unprecedented for 2013-14, we hope you enjoy our brand new Staff Feature!
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@CULawSoc ’s Chloe Halloran immediately thought to interview the Law School’s resident comedic genius Professor Norman Doe and his super clever sidekick, Dr. Russell Sandberg, who have set up the world leading Centre for Law and Religion…
Can you tell Unprecedented where your interest in law and religion started?
ND: At Magdalene College, Cambridge I read for my PhD in 15th Century Medieval Law. I looked at the theory of positivism - the idea that law and morals are separate and a rule is a law if it is part of the recognised legal system. The opposite school is natural law - to acquire full validity, laws must conform to the law of God.
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I argued that positivism was ‘invented’ three centuries before everyone thought and that medieval lawyers were familiar with positivism. Unlike common learning, I suggested they were also familiar with natural law, giving rise to a tension of how law existed. This is when I started to look at Canon Law and the law of the medieval church.
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After finishing my PhD, I was awarded a lectureship in Cardiff and planned to do further research on legal history, but I never did as I couldn’t help but wonder, where had canon law gone? I decided to explore Canon Law in depth and joined the Ecclesiastical Law Society, which now publishes a journal and has over 800 members.
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How did this get the ball rolling at Cardiff?
ND: Through meeting other practitioners at Ecclesiastical Law Society meetings, I discovered that they had no training in this area of law. Therefore, in 1989 at our Nottingham meeting, I proposed setting up an LLM Masters Degree course at Cardiff and we all agreed!
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The LLM in Canon Law at Cardiff started in 1991 and takes around 10 students a year; half lawyers and half clergy. Through this I slowly became integrated in to legal life of the Church of England.
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In the 1990s, I became one of the UK Reps for the European Consortium on Church and State Research and I realised that we needed to catch up with the Europeans! With the help of everyone associated with the LLM, I created a community of scholars to explore the interface between law and religion. The Centre for Law and Religion was established in the summer of 1998 to promote research and teaching, bringing the UK up to date.
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The Centre has a world renowned reputation, what has been your biggest achievement?
ND: Firstly, nowhere in the UK taught Law and Religion before we started our Undergraduate module at Cardiff - it is very unique! But three main things have come from the Centre. We have carried on with European group, Mark Hill QC is heavily involved with this work. In 2000, we helped the Archbishop of Canterbury to resolve difficulties worldwide, including developing shared principles of Canon Law common to churches of Anglican communication - this was very convenient in helping them to regulate their relationships. We also formulated a statement - went to Canada and the Bahamas launching a code of these at the Lambeth Conference in 2008 (a ten yearly meeting of bishops from around the world).
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In 1999 in Rome, we were instrumental in setting up the Colloquium of Anglican and Roman Catholic Canon Lawyers who now meet every year.
Professor Norman The success of this venture involved meeting Pope John Paul.
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I was later tasked with introducing Pope Benedict to senior Catholic lawyers and even had a piece of his Birthday cake in the Pontifical Council for Promotion of Christian Unity.
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Russell, where do you fit in?
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How has the Centre evolved in the last few years? RS: Over the last ten years, the Centre has firmly cemented Cardiff on the map as one of the world leading institutions for Law and Religion.
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ND: Russell was my super star PhD student and star pupil in Public Law!
In 2008, the Law and Religion Scholars Network (LARSN) was set up to bring together academics who were interested in how law and religion interact - LARSN now has almost 200 members!
RS: I studied Law and Religion in my final year as an Undergraduate and completed my dissertation with Norman. At the time, people were starting to write on law and religion in a piecemeal fashion - I was in a quandary as my PhD was meant to be on relationship between law and religion and the sociology of religion. But, no one had worked out what law and religion was and no one had brought it all together! To cut a long story short, I spent four years writing two PhD’s - one on the interaction between legal and sociological approaches and one on what law and religion was. That second one was in the footnotes!
The first of its kind in the UK, the Centre also established the Interfaith Legal Advisers Network (ILAN) in response to recent high profile court cases involving religion, including cases concerning religious dress, sacred animals, and faith schools and the considerable challenges for faith groups posed by the in State law on religion. It’s purpose is to facilitate an ongoing discussion providing members with a greater understanding of their respective religious legal systems and the common legal issues they face.
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I was appointed a lecturer at around the same time as I finished my PhD. So I decided to separate the two stories. The day before the oral exam at the end of my PhD, I received an email from Cambridge University Press accepting my book proposal for ‘Law and Religion’ - the book which students taking our Undergraduate module now read. All of this happened in March and I agreed to write the book by August to focus on the question of what law and religion was.
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Following the publication of 'Law and Religion' in 2011, I then began to focus on the other question, that is, the relationship between the legal and sociological study of religion. However, that question had to wait since at the meantime, Norman and I were taking part in a project on religious courts with Gillian Douglas looking at how Catholic, Jewish and Islamic courts operated. I had study leave last year to finish writing the book, ‘Religion, Law and Society’ which returns to the question of the interaction between law and religion and the sociology of religion. It'll be out next year - it explains why big legal changes affecing religion have taken place and looks at the secularisation thesis seeing whether that provides the explanation. It explains why the legal changes that have occurred and what lawyers and sociologists can learn from each other.
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Norman has being showing off about meeting the Pope & becoming the Chancellor of the Diocese of Bangor, what has been your moment in the spotlight? RS: If you can think back to the Archbishop of Canterbury,
Rowan Williams’ lecture on sharia law, a piece of my work was cited. In fact, it took Norman and I some time to work out whether or not he was supporting the piece of my work he had cited.
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These are unique to Cardiff and hugely successful. ILAN, for example, has held meetings at the office of the Equality and Human Rights Commission and at Lambeth Palace.
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What’s in the news? Gender Equality. By Tamsin Best It is probably no surprise that there is gender inequality present in our modern society. Over the last century there has been frequent coverage of inequality between the treatment of genders in the media, particularly focusing on the workplace or political sphere, mainly displaying an oppression of women. However, recently in the news, the narrowing of the gender gap was publicised in a statement constructed by Saadia Zahidi, Senior Director, Head of Gender Parity and Human Capital, under the World Economic Forum Report. Zahidi operates research into understanding the gaps within the treatment of both sexes inside each individual country. This year, the report illustrated that, where the gap is closing, millions more women from all over the world are able to reach more opportunities in areas such as health, education and the ongoing integration into the work force – with even more opportunities with political decision making. This equality is definitely something to celebrate. Zahidi went on to state that since the beginning of her data collecting in 2006, 80% of countries have made process which in the eyes of equality is a fantastic figure. The idea of the World Economic Forum report is not to tell a poor country that they have fewer opportunities, such as education for woman compared to a rich country, as they probably already know that but instead to show the gap between men and women regardless of the resources available. This gives the country a tool to help concentrate on what needs to be specifically improved.
in the World Economic Forum report; a ranking that has gone down from 16th in 2011. Although education is equally accessible and the fact women now make up almost half the workforce, research by the Equal Opportunities Commission states that only a minority attain senior positions in both the public and private sectors. Why is this the case? What is stopping women? The rate at which they are progressing in politics is slower than in other areas, currently women make up 20% of MP’s in the U.K. It is questionable as to what is the best way for the U.K to truly overcome inequality, but I personally believe that addressing gender gaps should be a social issue and not a legal one. It is evident that enforcement of laws upon gender equality do not necessarily work, for example the Equal Pay Act 1970 – a statute created over 40 years ago which has still not been properly implemented across most sectors. Women, on average, according to figures from the Chartered Management Institute 2012 Gender Salary Survey, earn £10,060 less than that of a man.
“The rights of women and girls remain the u n fi n i s h e d business of the t w e n t y fi r s t century.” - Hilary Clinton
Iceland, Finland and Norway are top the list Zahidi compiled out of 136 nations, based on political participation, economic equality and rights like education and health for both men and women. These countries had the smallest salary gaps between the sexes, along with highest educational participation rates and plentiful opportunities for either sex to rise in positions of power or leadership, as reported. On the flipside, countries such a Yemen, at the bottom of the ranks still hold very little gender equality, with ratings as low as 35% of girls aged 6-14 not having access to schooling. "What's worrying though is that 20% of countries have made no progress or are falling behind," she said. This is possibly due to economical factors within the country. In the U.K, even with the introduction of laws to try and enforce equality, such as Equality Act 2010, aimed to tackle any discrimination in the work place, much gender imbalance still takes place. This is proven by our 18th place ranking for the U.K
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There are many obstacles that society needs to overcome to address such inequalities in life. As Iain McMillan, of the Confederation of British Industries states; "Women will not make it to the top in significant numbers unless action is taken to remove the barriers that stand in their way, and Britain will continue to miss out on women's skills and talents for another generation." I for one would like to achieve what I set out to in life, not being bound with limitations due to my sex but equally meeting goals because of talent and not just to meet business quotas a risk which would occur if enforced laws were to be brought in as I'm not convinced that by forcing quotas you necessarily get the right person for the job.
The development within the last century, as highlighted in Zahidi’s reports, do illustrate major changes in the growth of equality between sexes, but it is evident that there is still much more(that can be done to gain total parity in gender equality). However as education is now fully accessible for both sexes, we can see that the building blocks are in place that will allow future generations to become gradually more gender neutral.
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The right to remain anonymous: the trial of Michel Le Vell. By Jade Cox The past few months has seen an alarming number of high profile men being accused of sexual offences, amongst these is Michael Le Vell. Michael Le Vell is a Coronation Street actor who faced twelve charges of sexual offences including indecent assault, sexual activity with a child and causing a child to engage in sexual activity. His accuser claimed that she had been sexually abused by him from the age of six to fourteen. Le Vell was first arrested in September 2011 but the Crown Prosecution Service made the decision not to proceed with the case. However, after a review of the evidence Le Vell was rearrested and charged in February 2013. His arrest meant that not only did Le Vell have to deal with the media abuse that followed; he was also tormented and abused by users of social networks. Le Vell’s trial began on September 2nd 2013. By September 10th the jury had reached a unanimous decision that Le Vell was not guilty on all counts. Despite being acquitted, the accusations continue to have consequences for Le Vell. He is said to be ‘scared for his life’ because of the death threats he has received and his car being vandalised. The Director of Public Prosecutions, Keir Starmer, defended the decision to continue with Le Vell’s prosecution. Mr Starmer told MPs on the Home Affairs Select Committee that "A proper assessment was taken in the case, the decision to proceed was the right decision." It is reported that Le Vell plans to sue the Crown Prosecution Service to reclaim the huge legal costs which he incurred – around £200,000. The case is another which has sparked debate on whether defendants in rape cases should receive anonymity. Some argue that the public have a right to know when someone is accused of rape, but it is possible that this rests on the old expression ‘no smoke without fire’ – the idea that there must be some reason for the allegations; the accused must have done something. In 1976 rape defendants were granted anonymity by the government, but twelve years later the protection was removed. Since then there have been attempts by political parties to revive the policy; the basis for this being the idea that women often lie about rape. In fact, Home Office research estimates that only around 3 per cent of rape allegations are false. The problem is that while the number of false allegations is only a small percentage, the effects of the accusations and the publicity which can result from it can have a massive impact on the life of the person; Le Vell being a prime example. The chairwoman of the Bar Council of England and Wales, Maura McGowan suggested that defendants should get anonymity unless they are convicted. The justification, she suggested, was that sexual offences carried “such a stigma.” This is certainly something which can be seen in Le Vell’s case. It may be the case that despite being acquitted there will still be people who will not trust the not guilty verdict.
This could have an effect on the way people perceive him and the work he is given. It could be suggested that allowing anonymity to those accused could prevent the risk of ‘trial by media.’ Cases involving high profile people naturally seem to attract masses of media attention right from the beginning, when it is yet to be shown whether there is any truth in the allegations. This often means that the jury enter the trial with knowledge on the case and perhaps misconceived ideas about the accused. The jury are of course told to disregard anything they may have read or heard in the media, but this is not always easy. Allowing anonymity would prevent this. On the other hand, there are also persuasive arguments against the granting of anonymity for the accused. As seen with allegations against Jimmy Saville, the media publicity can encourage victims to come forward. This can aid the investigation of a case greatly and can help convict the guilty. In addition to this, if anonymity were to be granted to those who are accused of rape it raises the question of why these offences are to be treated differently to other serious offences, for example, murder and terrorism. These offences also carry a stigma with them; should anonymity extend to them too? How could we justify a refusal to give it in one case when it is granted to another? Peter Bacon, a man falsely accused and acquitted of rape has said ‘I'd say it is worse even than murder, because there can be circumstances where you can attempt to justify murder. Personally, I'd have preferred to be in that dock accused of murder than rape.’ Daisy Sands, a campaigner, has argued that granting anonymity to those accused of rape ‘risks sending a message that those charged with rape deserve extra protection by the state.’ Furthermore, some argue that granting anonymity to the accused would undermine the principles of open justice; a fundamental in our legal system. The most important issue is whether granting anonymity would have a negative impact on rape victims. There is already estimated to be an alarmingly high number of victims who do not report being raped. It would be completely undesirable to do anything which could make women more reluctant to come forward. The effect of granting anonymity would need to be carefully considered before action was taken. It is not suggested that the accused should have the right to remain anonymous once convicted; but to allow anonymity until a verdict has been reached. The granting of anonymity to those accused of rape is something which is likely to continue to spark debate. There are a number of benefits to granting anonymity to those accused of rape but they need to be carefully weighed against the negative impact that this policy could have.
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The Legal Landscape A Woolf in Sheep's Clothing? The Hidden Costs of Mediation. By Jane Heard Lord Woolf’s proposals in his ‘Access to Justice’ reports1 two decades ago were an attempt to decrease the burden on an overloaded, costly and inefficient civil justice system and to increase access to justice for the individual (as litigation was expensive, lengthy and stressful). Mediation, the process whereby a neutral third person helps disputing parties reach a negotiated settlement, seemed to be the ideal solution. Parties could be encouraged (not compelled) by way of, for example, case management conferences and pre - trial reviews to reach a mediated settlement. Parties could voluntarily enter into a process which purported to be a cheaper, quicker and much more user friendly alternative to litigation.
!Most of Woolf’s proposals were put on a statutory footing2 but further legislation, case law and governmental intervention3 has arguably effected mandatory mediation. Currently, parties must either mediate (mediation is mandatory for divorce cases4, personal injury claims5 and there are recommendations to automatically refer all small claims to mediation6) or are under pressure to mediate because of the future threat of financial penalty (for example, courts can order parties to attempt settlement through mediation and can deprive a party of their legal costs if they unreasonably refuse an offer to mediate).7 If the idea of a ‘voluntary’ and ‘alternative’ dispute resolution process has been eroded to the point that parties are being coerced into an alternative (or perhaps additional) process to litigation, then it is highly questionable whether, for some people, especially the most vulnerable in society, mediation provides ‘Access to Justice’ at all. In an attempt to answer this question, the notion of justice will be divided into ‘procedural,’ ‘substantive and ‘effective’ justice.
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Procedural Justice If there is a fair procedure, then despite the outcome, procedural justice is achieved. Mediation appears to achieve this in the sense that it empowers individuals, who know themselves best, to privately resolve their dispute rather than a judge,
who has his own views that affect how he sees the world8, to publicly resolve their dispute for them. However, this can only work where there is equality of power. There are many reasons why one party may be weaker than the other. For example, where one party has less legal knowledge than the other or has reduced reasoning (such as learning difficulties, mental illness or substance abuse addiction). In family cases, mediation may disproportionately negatively effect women whose ability to negotiate on issues regarding money or children are affected as a result of domestic abuse9 or cultural10 or religious pressures regarding separation (characteristic to some ethnic minority groups). The mediators neutral role precludes him from preventing the stronger party pressurising or manipulating the weaker party into an unjust outcome.11 Whereas, judges analyse, develop and give force to the values embodied in the law 12 and behavioural and procedural rules apply equally to both parties. In this sense, litigation is ‘a democratic process which momentarily equalises power between individuals...’ 13 and mediation removes this safeguard.
!Even if an equality of power in mediation is assumed,
who is best placed to resolve the dispute? It is arguable that the parties are not, how can either party determine the limit or boundaries of the best settlement when they are both affected by the outcome?14 The mediator only facilitates a resolution, his neutral role means there is nothing to level out the playing field. Conversely, the judge independently arbitrates, assesses and determines the limits of settlement. Furthermore, what is the best environment to resolve a dispute? Mediators roles and responsibilities are subject to little or no regulation15 and parties are left without recourse if something goes wrong. The ‘informality’ of the mediation process lends itself to increasing bias16, not only may settlements made privately deprive parties of their rights to equal and impartial procedural justice but mediators themselves have significant opportunity to exercise covert power and influence. Whereas, judicial behaviour is regulated to ensure no bias or apparent bias17 and litigation’s formal process decreases prejudice.
Substantive Justice If an outcome has been determined by applying rights and obligations equally to both parties, then the outcome is fair and substantive justice is achieved. Legal rights and obligations have been developed from fair, impartial and proportionate principles and standards. The outcome in court is achieved by looking back at both parties behaviour and applying the legal rules equally to determine whether one party is entitled to, or has been denied, certain rights or has failed in their obligations. Litigation may produce a win / lose situation but parties who choose to litigate may do so because they “ … have strong beliefs about their legal entitlements […] otherwise they could have resolved their dispute with less costly solutions, such as avoidance or a handshake.”18
!Conversely, there are no ‘rights’ in mediation, its
focus is on the future and on facilitating a settlement. Parties who choose to mediate are willing to relinquish their substantive legal rights in favour of reframing issues and working together to reach a mutually agreed ‘win / win’19 resolution. Ultimately, individuals should have the right to choose which process to enter. Not only are voluntarily mediated disputes more likely to settle than compelled mediation20 but there is also a financial cost for loss of substantive rights as mediated settlements result in significantly discounted claims for the claimants.21 As Genn observes mediation is: “not about just settlement, its just about settlement.”22 Effective justice Whether access to justice is effective raises, inter alia, issues of cost. This is relevant where mediation is unsuccessful and especially pertinent where cuts have been made in the provision of legal aid. Unsuccessful mediation can cost up to £2,00023 and considerably higher in commercial mediation cases which can be formalised quasi-arbitral processes akin to litigation.24 Thus, a parties ‘dispute resolution fund’ could be depleted which could effectively remove the alternative of litigation.
!The latest legal aid cuts affect a range of disputes
including family and divorce matters. Given that mediation is now mandatory for divorcing couples (first appointments25 can cost up to £200 and subsequent appointments cost on average a total of £55026), more parties will feel forced into mediated settlements because they cannot afford legal representation or advice. This may also increase unfair settlements as there will be no background threat of litigation. Crucially, where mediation is unsuccessful, compelling parties to pay first for mediation then for advice and representation is commensurate with a denial of access to justice and
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may be a potential governmental breach of domestic27 and European28 law. The government is obliged to ensure citizens have access to services that effectively meet their needs and help them not only by giving advice about the application of law in their case but also to help them in preventing, settling or resolving disputes about legal rights and duties.29 Therefore, if the right to access is theoretical or illusory and not practical and effective, it could potentially breach Article 6 ECHR.30
!Effectively mandating mediation is effectively denying
access to justice. Notwithstanding, a possible breach by the state of domestic and European law, mediation denies access to ‘substantive’ justice as parties must relinquish their legal rights. It denies access to ‘procedural’ justice as not only does mediations informal, unregulated and confidential nature leave parties susceptible to bias and undue pressure but it also removes the safeguards of court and raises equal opportunities issues. Mediation denies access to ‘effective’ justice as unsuccessful mediation increases costs and may effectively rule out access to the courts. Mediation is not a panacea and if access to justice is to be achieved then the choice of which process to enter (be it mediation or litigation) should be left to the individual and not to the state.
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1. Woolf, The Rt Hon. Lord, ‘Access to Justice, Interim Report’, London, HMSO (1995); ‘Final Report to the Lord Chancellor on the Civil Justice System in England and Wales’, London, HMSO (1996) 2. Civil Procedure Rules 1998, rules 44.3(2), 44.3(4) and 44.3(5) 3. Pre-action protocols, Commercial Court practice statements, Government white papers and changes to legal aid eligibility 4. Statutory prerequisite for starting court proceedings: The Family Procedure Rules 2010, SI 2010/2955, Pt 3 5. Up to £100,000: Ali Ghaith v Indesit Company UK Limited [2012] EWCA Civ 642 6. Claims under £5,000 (approximately 80,000 cases a year) ‘Solving disputes in the county courts: creating a simpler, quicker and more proportionate system - A consultation on reforming civil justice in England and Wales’, Ministry of Justice Consultation Paper (2011) 7. See, for example, Leicester Circuits Ltd v Coates Brothers and Royal Bank of Canada Trust Corporation v Secretary of State for Defence [2003] EWHC 1479 (Ch); Hurst v Leeming [2001] EWHC 1051; Dunnett v. Railtrack plc [2002] EWCA Civ 303 8. Menkel-Meadow, C.'The trouble with the adversary system in a postmodern, multicultural world; William and Mary Law Review’, 38 (1996),5-44,5. 9. Although physical domestic abuse cases are exempt this does not appear to extend to psychological domestic abuse: ‘Solving disputes in the county courts: creating a simpler, quicker and more proportionate system - A consultation on reforming civil justice in England and Wales’, Ministry of Justice Consultation Paper (2011) at Para 1.3 10. See ‘Proposals for the Reform of Legal Aid: Response of the Family Law Bar Association’ (2011) CP12/10 at p.26 11. Baruch Bush, R.A. and Folger, J.P. ‘The Promise of Mediation: The Transformative Approach to Conflict’ (Jossey-Bass, 2005) 12. Fiss, O. ‘Against settlement’ (1983) 93 Yale L.J 1073 13. Resnik, J. 'Courts: in and out of Sight, site and cite’ Villanova Law Review, 53 (2008), 771-810, 806 14. Fuller. L, ‘Mediation-It's Forms and Functions’ (1970-1971) 44 Southern California Law Review 305, 317 15. For example, membership of the Civil Mediation Council is voluntary not obligatory. Solicitor mediators are permitted to run a separate mediation business (Solicitors Regulation Authority (SRA) Code of Conduct 2011) unregulated by the SRA as mediation is not classed as a legal service under the Legal Services Act 2007. The Family Mediation Council only requires accreditation for mediators undertaking publicly funded work but there is no statutory requirement for mediators doing privately funded work to be a member of any organisation. Cited in Langdon-Down, G. ‘Mediation: The go-between’ (2012) LS Gaz, 17 2012 16. ibid. Fn. 11 17. R v Sussex Justices Ex p. McCarthy [1924] 1 K.B 256; Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 18. Nolan-Haley, I.M. 'Court mediation and the search for justice through law', pp. 64-5. 19. Ibid. Fn. 11 20. Genn H. Et al.‘Twisting Arms’: Court linked and Court Referred Mediation under Judicial Pressure, Ministry of Justice Research Series 1/07 (2007) 21. Regarding most non family matters which simply involve a transfer of money: Genn H. ‘Judging Civil Justice:’ The Hamlyn Lectures, Cambridge University Press, (2008) at p.113 and p.22 22. Ibid at p.117 23. ibid fn. 20 at p.131 24. Ramsey. V, ‘Mediation 2020: a presentation to the Chartered Institute of Arbitrators' 4th Annual Mediation Symposium (2011) Arbitration 2012, 78 (2) at para 8 25. Mediation Information and Advice Sessions: Family Procedure Rules 2010 26. ’Solving disputes in the county courts: creating a simpler, quicker and more proportionate system - A consultation on reforming civil justice in England and Wales’, Ministry of Justice Consultation Paper (2011) 27. Submission by Bar Council in ‘Proposals for the Reform of Legal Aid: Response of the Family Law Bar Association’(2011) CP12/10 28. Ibid. at pp 156 - 158 29. Access to Justice Act 1999 ss.4, s.4(2)(b) and (c) 30. Airey v Ireland [1979] 2 E.H.R.R. 305 cited in Wade, G. ‘Forced to be free?’ (2009) G.L.S.I. 2009
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Another perspective… Sex, Drugs and Plagiarism. By David Mc Keown The warning lights of plagiarism often flash before the eyes of students when writing essays. It is the ultimate temptress one that can trick even the most competent legal eagle into its tramp rendering them nothing more but another statistic that will be regurgitated at an introductory lecture on good academic practice in years to come. On the surface it appears that plagiarism is the bain of academics and academics alone however this could not be further from the truth. If and when you ever fell stressed about citations or fear your work may be deemed unworthy take a minute to think about the music industry. Here a simple mistake can lead to the loss of millions. It is true that in our legal cocoon to copy someone else’s work is the equivalent of dancing with traffic. However in the world of rock and roll plagiarism seems no more than spitting gum on the street, well that is until they get caught. The industry itself in 2011 was valued at $16.3 billion. A colossal sum and due to this huge monetary circulation it is quite understandable that there have been multiple legal cases involving the allocation of this wealth. The case history in this area is vast but there is no better place to begin than with the greatest band of all time. Indeed the Beatles got into a spot of bother over lyrics with their hit “Come Together”. The line “Here comes ol’ flat-top, He come grooving up slowly” bore an uncanny resemblance to lyrics in Chuck Berry’s You can’t catch me “Here come up flat top, He was grooving up slowly”. Lennon bore the brunt of responsibility in this case, after all he wrote the song. Following a complex lawsuit by Berry’s publisher, Big Seven Music Corp who was awarded $6,795. John wasn’t the only Beatle getting caught; out for plagiarism; George Harrison was successfully sued in a prolonged suit that began in 1971 for plagiarizing the Chiffons' "He's So Fine" for the melody of his own "My Sweet Lord". The judge decided that "My Sweet Lord “boosted interest in George’s Album, and therefore gave 70% of the single's royalties and 50% of the album's royalties to Bright Tunes. In the end, Bright Tunes Music was awarded a sum of $1,599,987 for the infringement against "He's So Fine,”. Imagine a fine in this range being imposed on any student found guilty of plagiarism.
The list does not stop here; the 1990s was certainly the decade of deceit! Oasis was sued for $500,000 by the New Seekers after the song “shakermaker” was alleged to have taken its melody from the classic “I’d like to teach the world to sing”. It did not stop here for Oasis there song “step out” which was intended for what is arguably Oasis’ greatest album, (What’s the story) Morning Glory? , was removed after Stevie Wonder requested 10% royalties. He believed the chorus had a strong similarity with his hit “Uptight (Everything’s Alright). Although frustrating Oasis’ turmoil has nothing on what was endured by the Verve. Arguably the most impressive plagiarism case in the 90s involved what remains the definitive album of the era, Urban Hymns, and the spine tingling track “Bittersweet Symphony”. The track reached number 2 in the UK when it was released in 1997 however when Mick Jagger heard the first four bars of the stringed intro he wanted a piece of the pie. ABKCO, the copyright holder for the “The last Time” requested the rights to “Bittersweet Symphony” and that all royalties to be passed to Mick Jagger and Keith Richards. During incredibly long negotiation proceedings the verve were told they would be allowed to use the song if they agreed to a 50/50 split. However as the Albums success grew Allan Klein, owner of ABKCO called the Verve stating “We want 100 percent or take it out of the shops. Ashcroft kindly offered that 50 percent could go to Jagger and the other 50 would go to charity but this was refused by the stones. “Bittersweet Symphony” is to date Richard Ashcroft’s greatest invention however he has not received a penny of its success due to plagiarism. It often seems that plagiarism is unfair. In many of the cases mentioned here copyright infringement was the last thing on the singers mind. Could you really see Richard Ashcroft worrying about a legal case when he was writing a song about man’s life long lust for money? Or when George Harrison was writing about his special spiritual relationship with God do you think the notion thou shalt no steal was running through his mind? The reality is that plagiarism is often forgotten about or misunderstood therefore it is important not to forget the consequences seen above.
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@CULAWSOC Thinks… Rape Referrals @ Rock Bottom By Chelsea Mitchell A recent report by the CPS has found that the number of rape case referrals has reached a five-year low, despite figures that show a 30% increase in the number of rapes reported to the police. It appears that, regardless of the Jimmy Savile and similar abuse scandals that have recently come to light, the police are still not taking victims seriously, or dealing with the situation in an appropriate way. The organisation Rape Crisis have reported a 40% increase in the number of calls they have received since the Savile sex scandal emerged, and have reported that this confirms ‘that sexual violence sadly happens a lot more than most people think’, so, why are more perpetrators of rape and sexual violence not being brought to justice?
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Background Jim’ll Fix It and Radio 1 DJ, Jimmy Savile, died in 2011 at the age of 84. Following his death, a flurry of media interest brought his sex abuse scandal into the public eye and led to the launch of a criminal inquiry in October 2012. Detectives revealed earlier this year that they recorded 214 sexual offences and 34 rapes against Savile’s name. The scandal led to investigations of other celebrity individuals who may have been able to use their power or influence to sexually abuse vulnerable individuals. Named ‘Operation Yewtree', a police investigation into sexual abuse which involved Savile, dealt with a total of 589 alleged victims who came forward during the investigation. This helped to lead to the arrest of other well-known figures such as Rolf Harris and Freddie Starr. This may show that victims have become more empowered, increasing the social freedom to discuss such a taboo subject, and victims have become more likely to report it to the police. Reports from the BBC, show that the number of sexual offences recorded by police has increased by 9% since the scandal first emerged, but this does not explain why the number of referrals from the CPS is less than a third of what they originally receive.
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Reasons for less referrals A significant reason for the small percentage of rape case referrals may be a lack of police resources or their inability to deal with such sensitive cases. Shadow Attorney General Emily Thornberry supports this as a potential explanation, citing 20% police cuts as a reason the police might be ‘cutting corners’. She believes that whilst the CPS is trying to improve the way in which they prosecute, what she describes as ‘difficult cases’, it has to be questioned why the CPS are not being given the cases to prosecute. Kate Russell, a spokesperson for Rape Crisis, believes the reduction in referrals has led to fears that the cases ‘are not being handled as well or sufficiently or taken as seriously as they might be’. Martin Hewitt, Deputy Assistant Commissioner,
however, assures the skeptics, saying the police would continue to provide a ‘victim-focused response’ to rape investigations, and that there have been ‘significant improvements in the specialist training of officers, the introduction of early evidence kits, greater access to sexual assault referral centres and increased partnership working with support groups’, although it appears this approach does not seem to be working.
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Another reason for the decrease in referrals may be the increasing trend of a blame culture, where ‘victim-blaming’ or ‘slut-shaming’ is prominent. This is where the victim is considered to have brought the rape upon themselves, primarily through being intoxicated or dressing provocatively. In February 2013, the Office for National Statistics (ONS) reported that they found one in 12 people believe the victim of a rape is to blame if they are drunk or flirtatious, whilst eight percent of people believe the victim is to be blamed if they are under the influence of drugs. The campaign group ‘End Violence Against Women’ have said these figures, whilst it may not be the majority view, show that it is a commonly held view to blame to the victim, and affects the numbers of women that come forward and the decisions that the juries make. In a case earlier this year, R v Wilson, the prosecuting barrister described a 13 year old sex abuse victim as ‘predatory in all her actions’; CPS released a statement after the case which expressed the belief that the DPP found there was no evidence that ‘supported describing the victim’s behaviour in such terms’. Psychology Today discussed victim blaming and believes it is ‘still commonplace’, especially amongst police. These sorts of attitudes by professional legal services can clearly deter victims from coming forward, or from referrals reaching the courts.
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What can be done? One article in The Guardian has pointed at corrupt police officers as the significant issues, and believes if ‘senior officers were prosecuted when they pervert the course of justice, sexual violence investigations would improve’, and the writer seems to believe that the police resent accountability. If this were to change, might that bring referral cases back up to an acceptable level? Once a report has been made to the police, you have little control over the matter, including whether or not you want to stop proceedings; this may deter people from reporting and may also mean the police deal with the cases in inappropriate ways. Furthermore, the time a victim can spend in a police station, sometimes waiting for a female officer (if required) or answering endless, insensitive questions can also mean the assault has not been reported efficiently. More specialist teams need to be developed in more accessible locations to ensure the cases are dealt with sensitively and effectively. There also needs to be more funding and access to rape ‘help centres’, which may encourage victims to eventually go to the police. The information available to rape victims is not sufficient, and the method in which the police handle the cases is far from adequate. If we want to see more perpetrators of rape and sexual violence brought to justice, reforms must be made in the police service, through both additional resources, but also in their attitude towards victims.
Trainee Profile
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Jen Ashwell – Trainee Profile – Cardiff University Graduated in June 2007 after studying Law and Sociology (LLB) at Cardiff University. Completed the LPC at Cardiff Law School from 2008 – 2009. Firm: Burges Salmon LLP Position: Trainee Solicitor, (fourth seat) Planning I chose to study Law at Cardiff University and the progression into a legal career seemed like the next natural step for me. I made a conscious effort to gain work experience in a variety of firms and also took a year out after my degree to work in a law firm for a year. After experiencing what the legal world was like in practice, I was sure that I wanted to be part of it. I was attracted by the commercial aspects that a career as a Solicitor could offer coupled with the opportunity to work with a variety of different businesses. As a trainee, it is possible to get involved in many different projects and work with a range of lawyers and clients. On a daily basis I gain a wide variety of experience and the opportunity to get to know some really interesting people. One of the great things about working at Burges Salmon is that I have been given a high level of responsibility which means I am trusted to undertake work of a complex and challenging nature from day one. I wanted to find a firm where I could get top quality work but, as I am from the South West and have friends and family in the area, I was not particularly keen to move to London. When I started researching various firms, Burges Salmon really stood out for a number of reasons: •
The six seat training contract gives the opportunity to experience a wider variety of areas of law and offers more choice when it comes to qualification.
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The retention rate of trainees at Burges Salmon is particularly impressive.
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The high calibre of clients that the firm deals with and the opportunities to work on interesting and high profile projects.
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I wanted to find a firm where I would be valued from day one and that had a friendly atmosphere and plenty to get involved with outside of work.
All of the above was confirmed to me on the vacation placement, which was a great chance to experience everyday life at the firm. I was given work to do on ‘live’ matters and also took part in skills sessions and social events, which were attended by current trainees and were a lot of fun!
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WHAT MAKES A LEADING UK LAW FIRM? We work with high profile clients on well publicised deals We give our trainees early responsibility to run their own smaller matters We offer a six seat training system to allow trainees to make an informed decision We have a broad range of practice areas so we can fit our expertise to our clients’ needs We think about the future – we recruit future partners, not just future trainees We are based in the UK but that doesn’t stop us having a global reach We work together in a collegiate environment For more information about trainee solicitor recruitment, please go to www.burges-salmon.com/careers or call the team on 0117 939 2229. w
www.facebook.com/burgessalmontrainee w @burgessalmon Burges Salmon LLP is an equal opportunities employer
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