The Advocate - March 2015 issue

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THE ADVOCATE

INSIDE

0DUFK 2015 Issue

“Talk is cheap and litigation is expensive.�

Energy for Old Fadama................................................. Insight into the legality of organ trade in Iran............... Are Indian lawyers better trained that British ones?..... International & Boutique.............................................. Ashurst..........................................................................

2 2 3 3 4

Since 2004

Grayling’s Cuts is it a solution? .................................... Politics Made Public...................................................... Deal or No Deal............................................................ Children and Families Act 2014....................................

5 6 6 7

Smile! You’re on Camera Andrea Efthymiou

The presence of cameras inside courtrooms has been a hotly debated topic in the UK for some time, and the question has come to the forefront of attention once again following the Pistorius trial that gripped the world. The South African media were giv the trial which contributed to the recent emergence of cameras in the UK Court of Appeal starting October 2013 Since the Criminal Justice Act 1925,

with the exception of the UK Supreme Court set up in 2009. The ban on cameras in the Court of Appeal was recently partially lifted with lawyers’ arguments and judges’ comments appearing but with defendants, witnesses and victims not being shown. The most senior judge in England and Wales, Lord Chief Jus step of broadcasting, re-igniting the debate across the legal profession.. The primary focus is the increased transparency and clarity that comes with allowing the public to witness the workings of the justice system. Often, our legal procedure is criticised for being complicated and opaque. By implementing the use of cameras, this allows access for all and the public oversight of the procedure is am Court, Lord Neuberger, has called for cameras to be allowed in courts, believing that it is a necessary part of open justice, “an essential feature of the rule of law�, and something that is no longer “just about the courts being open to visitors physically�. Introducing cameras in the Court of Appeal

interaction with jury trials. However, these are the cases where this new concept will truly be tested. Helena

Kennedy, a journalist for the Guardian, states that having cameras in the highest courts is undoubtedly a good thing as in our common law system, that is “where binding law is made�, therefore it is perfectly rational to have it available for public information. As our society adapts to technological advancements, it seems backward to deny the use of cameras in such an

age would adjust to modern times and emphasise the on-going relevance of

editorial delights of various newspapers as to what they want to report.� $ # of Appeal case, David Cameron supported the move towards ‘open justice’, highlighting political backing and speculating that if expansion is to ensue $ % % Despite strong encouragement for the implementation of cameras by some of there is equally strong opposition. Our

the law to its citizens. The opposition is quick to express that it could undermine the justice system and create inconsistencies that would be detrimental to performance. There is, however, the possibility of safeguards and checks referring to the video footage that can be established. Editing can ensure the protection of certain elements of the trial that are too sensitive, such as voiceovers and screens providing only sound, supplying the public with access, but protecting vul ! ! "# move, saying it was long overdue, “justice is supposed to be public. You can walk in there today. The problem is that it doesn’t reach a wide enough audience and we’re also subject to the

legal system should be concerned with the fundamental principle of justice, yet who really stands to gain from this move? There is enhanced access for the public, but it is the media companies & ' sure is dangerous because it has very little to do with ensuring justice and % The media companies saw the public hooked on the Pistorius case; twisted with money, fame and domestic issues – the drama of the criminal law is where the companies want to be. Helena Kennedy states that this “corporate agenda is being covered by a veneer of transparency and openness.� However, many believe that television seeks the salacious and the sensational, not the

arcane arguments of the highest courts. & ciency of the justice system. The exposure could intimidate witnesses and the jury; knowing that they are being scrutinised by public eyes. The primary concern should be linked with justice and handing appropriate verdicts; anything that can deteriorate this prospect should be handled with severe caution. Despite his assertions that there are strong arguments in favour of allowing cameras into the courts, Lord Neuberger acknowledged that their addition has ( % ) * + the trial of OJ Simpson as being an example of how televised trials can have a of the trial as “a lesson in how not to do it�. Aforementioned, editing will inevitably have to take place - as a result, the viewer does not wholly see what the juror sees. The jury is then transduced for its verdict, under the scrutiny and opinion of the masses yet it is them who sat through the whole trial and applied the high evidential threshold. Labour peer Baroness Kennedy "# velopment undermining respect for the judicial system, “our liberty as citizens in this country is that the legal system should be taken seriously; it shouldn’t be turned into entertainment for the masses and I don’t trust the editors.� The question is what kind of justice system do we actually want: a traditional, no-camera court with no opportunity for constant virtual observation / % of transparency but the possibility of disturbing the delicate wheels of justice? Whichever decision is made, it will surely continue to be a significant issue in the legal profession.

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THE ADVOCATE

2

Energy For Old Fadama: Switching on the Sun Amrik Rana

" ! % = < someone is unhappy to donate their empowered too by getting involved. she can save her mother from being organs after death, they will have the & % executed after accusations of murder. option to opt out. Yet, most people do educating the students and external “Websites bodies about the environmental, eco-

tial

nomic, and essential considerations for Imagine studying the night before your this initiative brings to those who are

exist

buyers the

best

where

purchase negotiable

poten- not die prematurely, and the wait for kidneys someone to actually pass away in order price� to receive an organ may be too long.

Iran is the only country in the world However, by looking at the statistics

exam and all of a sudden the lights in still in the dark both here at home and that has legalised the selling of oryour room go out. Imagine the uni-

versity library pitch black because Just imagine how much light you there is no electricity. In many regions

of Iran’s high number of road acci-

4 & % gans. But the question as to whether dents alone, you may think otherwise.

it has worked well is debatable. It is According to unicef.org, the rate of

can help provide by ‘switching on true to say that due to the competitive road accidents in Iran is twenty times

such as Ghana in West Africa, there is the sun’ in support of this project. market for selling kidneys, Iran, as a more than the world’s average. Each a lack of systematic and sustainable While we make no plans to save the

result, certainly faces no kidney short- % $ -

resources to power very poor areas world, little steps do go a long way.

age. As a contrast, countries like the ly 28,000 people in Iran and every 19

$ 4 & %6 -

Visit our website at www.efof.org.

UK face a real problem. According to minutes one person dies on the coun-

est urban slum. Dim lights in schools

$ &

$ giveakidney.org, 300 people in need try’s roads. The road accidents in Iran

and homes strain the eyes of young 8 % 4 & of a kidney die each year in the UK are so high that during rush hour, it is students trying to study and learn. Venturing into its third year Energy 4 & 78&4&< zation that works to provide electricity to community buildings including many schools through renewable solar power. We may not have much of it

alone, and around 6000 people are on not surprising to see several accidents.

To be or not to be: Insight into the legality of organ trade in Iran Elaheh Karoubi

the waiting list for a kidney transplant. % - organ sales to go waste when it can be lowing the selling of organs such used to save lives? As Randall states as kidneys may be that it tackles the in the title of the American Medical issue of shortage, one of the argu- Association Journal, “Too few huments against this legislation is that man organs for transplantation, too

in England, but there is an abundance

the less privileged are the ones who many in need... and the gap widens�.

of sunshine in Ghana. By banking on

suffer. Many in Iran who are in need “The

% 8&4& -

of a kidney cannot afford to buy one. gal market for human organs is

con of light not only to the buildings

On the other hand, given the current widely

it helps power but also to the people in

economic circumstances that Irani- Even though a presumed consent

% = 8&4&

ans face, some members of the pub- system would be more practical and

project provides women with the op-

lic have no choice but to sell their %

portunity to bring in an income through

$ % % notably for Iran, the violation of au-

Iranian

concept

considered

of

a

le-

repugnant�

% - It is really quite disturbing to see I spoke to Hamed, a 24-year-old tonomy is a sensitive issue amongst fordable solar panels. This enables % male kidney seller in Tehran, and I many people around the world, inthem to gain economic stability whilst Tehran as a form of advertisement asked him why he is willing to un- cluding Iranians. At the same time, providing the necessary electricity for their organs. They put their blood dergo the process of selling his kid- something has to be done about the for themselves and their community. group in red with a telephone number ney at such a young age. He said,

current organ trade since its mere exis-

8&4& - next to it: “O+ kidney for sale, call “things from food to paying rent is tence is commonly frowned upon, and yond its 100% student-led origins for more details‌prices negotiableâ€?. becoming more and more expensive until the majority of the Iranian peowith all of the founders now having Certain websites exist where poten- everyday and so, I have no choice‌ ple decide to express their concerns graduated, the enterprise still has a tial buyers purchase kidneys at the the sanctions really put a lot of pres- around this issue, nothing will change. " ! % best negotiable price, which starts at * & [ Two decades ago Iranians would enThe funds of both Karma Koffee and roughly ÂŁ4000. Some even publish re-

Harvard University professor, right- courage others to donate their organs

the recent book sale are used sole- lated articles on other websites that are ly explained in the Wall Street Jour-

)

% 8&4& meant to advise sellers when to sell nal, �it’s the poor person who sells�. charitable act. Sadly, such ‘charitable continue the work which is so vital to their kidneys, ideally at a later date The Iranian concept of a legal market acts’ have become very rare and as the area. Alongside the Pro Bono So- when the prices are likely to go up. for human organs is widely consid- soon as you hear the word ‘organ’ all ciety, Clifford Chance are currently But the advertisements hardly avoid ered repugnant. Some suggest that if you can think of is trade. When I asked involved in providing a legal structure protests. A street artist known as Black the Iranian legislature decides to adopt Hamed about his views on the confor our organization as we seek to set Hand, or the ‘Iranian Banksy’, recently presumed consent legislation, then temporary organ market, he said this: down a base from which we can ensure

drew an artistic picture of a kidney be- “Personally, I never liked the idea of

that we have a real and lasting effect. ing held at an auction. Iranian cinema public. The consequence of presumed selling my kidney, but when faced with 8 % 4 & %

- also addresses this issue critically, as consent legislation is that it will make such huge economic pressure, that is ed in ensuring a long-term solution. As

M & Q 6 7RXZZ< organ donations compulsory for all. It when I think to myself, why not? At

a social enterprise, it seeks to engage which illustrates a story of a desperate has many advantages, including the least I have the freedom to choose 4 & % 7! < rise of the number of lives worth living what I want to do with my body, even them with tools and empowering them her kidney in order to raise enough for both the rich and the poor. More

if that includes selling my own kidney.

to be the change they wish to see in [ % 7

% - importantly, there would be a fall in And at the end of the day, I am not dotheir future. It envisions that students cial compensation paid to the heir of the growing market of organs, and if ing anything that is against the law�

3

THE ADVOCATE

0DUFK 2015

Are Indian lawyers better trained than British ones? Tessa Elliott

!

! origin is strictly linked to the activity

!

!

+ ! !

Students

" -

reluctance to represent clients who

who decide on a career in law after

nition of the expression “international

undergraduate

program.

! ! E" ' " the three-year course.

As with ev-

!

-

As a law student from London in a

ery other professional course, there

characteristics of their employees.

placement program at a mid-size

are also entrance exams. The Com-

F ! E ! ) O -

& % 7)&% 8

! a question that was fresh on my mind. one such test that is conducted for " ! D the undergraduate program in as we all make use of this expression so + common law countries, there are many as eleven national law universi- frequently that it has almost lost its accept those clients, new and smallseveral dissimilarities in how law

ties. There are other college/univer-

meaning. The common use of them

B

-

-

! 0

has turned the words into a linguistic

/

ence in the qualifying system in

% && " !

to take care of these unrepresented

may choose further studies in law. international in the legal profession? - There is a full-time postgraduate !" cessful law graduate has completed. < && < !

" years long. Some students also go !

clients. Then there is a further ques-

#$ !

-

+ -

international law every day for a liv-

en and fourteen internships,’ says

dictions for further education. Several

" ! I 6 !" -

it does not often correspond to the

Alaukik Shrivastava, a fellow intern at

' " J -

: F / E '

' " F / E '

%& % interns and associates expressed a and Solicitors. ‘Some colleges pro- desire to pursue further legal educa-

ternational Commercial Transactions

automatically think of a very small-

M

! = ! &

B "

! " => people rely on their sources, peo- & ' ? -

! '

!

true international lawyer? What skills ! ' ( lem for students and there is also an ! F EN

)* + - impression that one can get ahead 1 ! ! " ( ! ! F E Gaining extra-curricular experience @ These lawyers show an international

! !

quiring the completion of an intern-

!

" ) B rience in their studies. Nowadays it

! / !

ship in order to graduate. The idea is

/ ! ! 0 ! -

is narrowly limited and not the size, ! ! ' !

may constitute a new opportunity of ' ! O employment for young law students? " While the UK accepts and makes pro-

1 " ! ! Yes, it is a developing trend and as increasing trend of law programs re- visions for the recognition of qual- have some kind of international expe- 0 / / ! ! #

! - needs to develop practical skills and

!

1

!

for undergraduates, as they tend to acquire legal experience. A student !

B somehow rare to pursue your studies

! / + who has completed an internship is "( ! % " outside your home country, especially 0 ! ! !

)1% & D in the legal academic world. Second- 0 /

0 ! 1 @! # - !" ! ! ! " " O ! + - offer training in various areas of the due to population size — so you ! law and a varied training is required for this than graduates from the UK.

" ! ! / " $ ! experience you can get counts.’ share some of the same processes for + @ / ! ! % er, there is no virtual limit to the num ) "

! 1920s, opportunities for quality legal

50

) 6

International and Boutique:

Francesco Palma

/ litigation are your areas of interest, it is worth to have a look at these new

/ : ! / ! /

6 ! /

Among the current trends of the le-

? ! -

+ ' " ' ' " one in particular that is developing

his insight knowledge of the mecha-

!Q / ) nisms of the industry proved incred-

!

! ! 0

trends that go on in the legal sector, 0 ' phenomenon. This is only one of the $ ! !

N ! ! ! students, postgraduate employment

there is a new rising category of in- / - day on the legal market and as law + ! ' ' " ! contracts in the UK, despite the fact / 1 " D B & 0 ! " B ! -

" ! -

this extremely recent legal phenom-

ited areas of the law, such as commer-

& 7&& 8 : enon so as to understand how these

future

employment

opportunities.

4

Ashurst

0DUFK 2015

THE ADVOCATE to action. I’m predominately work-

the client to meet the team and for me banking trainees, I begin. The great

ing on two international transactions

to get a better understanding of the is-

which I have been fortunate enough

sues relating to the transaction. Due approachable. So if you have a ques-

to see from instruction. We are in the

to the length of the meeting, we have tion, no matter how small, ther is a

process of sending out the draft facility

lunch with the client.

agreements on both transactions – this

2 pm: There are many legal factors to 5:30 pm: & -

can mean a lot of emails from all par-

consider when working on large, inter-

ties.

national transactions, so I liaise heavily her amendments and our secretary has

9:15 am: I begin to respond to import-

with the internal Ashurst teams. Today, incorporated them. Proofreading the

thing at Ashurst is that everyone is so

great network of people to ask! ing, my supervisor has now completed

) we are receiving a tax review of a draft agreement is therefore required. This is

Chloe Marshall: Second year trainee solicitor, Ashurst LLP

communication between all parties on

agreement. Therefore I am in discus- a common trainee task and is good for

a deal so staying on top of everything is

sion with that team, asking questions

crucial. My supervisor is always there

about comments they’ve made and im- derstanding the structure and content

to discuss any queries I may have,

plementing them into the agreement.

which is really helpful when trying to

2:30 pm: I’ve been asked by an asso- sential for when you have to mark up

grasp new developments or tricky sub-

ciate in the department to compose a

getting used to the terms used and unof the document – something that is es 7

ject areas.

regulatory knowledge bank for a deal $< % { = = )

University: University of Kent

10:30 am: On one of the transactions

that has arisen. It is always daunting my supervisor and she goes through

Degree & Class: Law Distinction

I’m working on, the syndicate of banks

taking on something that you have them with me.

require a meeting at Ashurst to discuss

never done before, but it is an area 8 pm:

their draft agreement. Today’s meeting

that’s really interesting and once I get Once the proofread is complete and I

8:45 am

= $ started, there’s plenty to include.

to the canteen for breakfast with some

agreement together, therefore my role

4 pm: As part of the transactions I’m = $ %

fellow trainees. I check my Blackberry

is to ensure that everyone has all the

involved in, company search reports

to see if anything important has arrived

relevant documentation and, if any de-

are required. It is a task I’ve yet to tention for the next day. Tying up these

) % % -

% ) % cisions are made, I need to keep note.

complete so, dusting off my training

loose ends, I head out for dinner with

supervisor or anything that I may need

notes and speaking with a few of the

some trainees from my department.

My presence there is mostly to enable

5

THE ADVOCATE

0DUFK 2015

Grayling’s Cuts is it a solution?

fendants, witnesses and court staff to

$ - vices and students, once they move

just get on with it as best they can?

tant to do their tax returns, register for to the “pupillage� stage they also

Or does someone sit down and think

VAT and all the other boring minutiae provide advocacy services through

– how can we deliver effective rep-

that goes into being self-employed. the ABS and learn their trade craft.

resentation and support to those who

So here’s an idea – stop being self-em- Could the structure be taken

need it, in particular by providing

ployed and give up a level of auton-

= % them with access to a system that still

omy to do what you love – stand on

judging the entries to the Attorney uses quality independent advocates

your feet in court and talk for a living.

General’s Student Pro Bono Awards I within the proposed fee structure?

“Well,� I hear you say, “that’s all You could argue that such an organi-

was, as I have been for the last four This led me to ask another ques-

% - zation would satisfy any one of three

years, amazed and heartened by the tion aimed at criminal barristers and

tices are going to the wall and the charitable purposes under the Chari-

ingenuity and dedication of students, those who want to join the criminal

Lord Chancellor wants to cull almost ties Act 2006 by delivering effective

staff and law schools in delivering le- Bar What is it that MOST ex-

ZXXX representation and access to justice:

gal services to their local populations. cites you about the job you do?

so who am I going to work for?� the

This year, the Awards took place -

This is where universities and law the advancement of human rights,

against the backdrop of all of the cuts tive advocate and represent

schools could come into the picture. )

to legal aid and the changes to legal your client’s interests in court?

Law Schools – why not copy the or the promotion of religious or racial

services being wrought by those cuts Or is it the chance to be inde-

| " [ harmony or equality and diversity;

and the arrival of ABSs. This got me pendent and manage your own

but instead of qualifying as a so- the relief of those in need because of

to thinking: what if the strikes and time, resources and take on

licitor, you qualify as a barrister? % } % -

demonstrations and newspaper column the work that you want to do?

% % { - cial hardship or other disadvantage.

inches DON’T stop the cuts? Where I suspect it is the former because the

vocates who train future barristers It’s some food for thought.

do we go from there? Do the various business reality of the Bar doesn’t hit

AND provide advocacy for legal aid

actors in the justice system pack up home for many wannabe barristers

clients. Those barristers are employed

and go home to leave the victims, de- until they become one and have to

by an ABS to deliver advocacy ser-

Tom Laidlaw, Head of Academic and Public Sector Marketing, LexisNexis

advancement

of

education;

"" #

Law. In order. Halsbury’s. Exclusive to LexisLibrary.

6

THE ADVOCATE

A shaky path ahead: Politics made Public Carl Lentz

0DUFK 2015

sive state, albeit a small one, will lead by weakening the credibility of the to the accused but he is astounded by to obstacles in the overall peace-pro- system on the one hand and extorting the overwhelming majority of individucess. This is not to say that Israel has

guilty pleas from the innocent on the als that forgo their constitutional rights

been quietly polishing plans for a future other�. In light of these comments one when accused of crime. He argues that peace, on the contrary it has also been must ask, what are the incentives for %

} ' = - a belligerent in the consistent violent the parties involved?

engineered the system to assure that

el and Palestine will certainly continue outbreaks against its neighbors. The Judges’ Incentives: The key incentive the jury trial system established by the % ) Benjamin Netanyahu administration is to alleviate the need to schedule a tri-

Constitution is seldom used; making

entrenched viewpoints and politicians accepted an Egyptian brokered truce al on a crowded docket. Awareness of plea bargaining the primary technique unwilling to compromise; problems that ended the recent crisis, but soon af- prison overcrowding may allow recep- used by the government to bypass the that are exacerbated by hawkish states-

ter laid claim to another 1000 acres of tiveness to the “processing out� of of- institutional safeguards.

men on both sides. That is not to say West Bank territory for Israeli housing.

fenders who are not likely to do much

Attorney Timothy Sandefur concedes

that there doesn’t exist a genuine will A third option, although less discussed,

jail time.

that plea bargaining is “rife with unfair

on both sides to reach an agreement that is the three-state solution. This would

Prosecutors’ Incentives: A lightened prosecutorial tactics and needs reform�

would allow both actors to live harmo- see Gaza being administered by Egypt, caseload is attractive. More important- but rejects the proposition that it is unniously, but that ambition is overshad- and the West Bank form a confedera-

ly, plea bargaining ensures convictions, constitutional. In such cases, criminal

owed by times of insecurity, such as tion with the state of Jordan. Such an even if it is at a lesser charge. Despite defendants are not being punished for $ { idea has been for instance proposed

strong evidence, prosecutors often a refusal to bargain; they are instead

by Benny Morris, an Israeli histori-

wage long and expensive trials but lose. being punished for “violating the law�,

to ask in this case would be how recon-

ciliation would occur, and whether that an, and Danny Danon, an Israeli pol- Defendants’ Incentives: Plea bargain- the defendants have no right to comwould be in the shape of a one-state, itician. Whilst this may seem unreal- ing provides the opportunity for a light-

plain because they have no “right to

two-state or even three-state solution. istic, it can appeal to both academics er sentence on a less severe charge, and leniency.� A one-state solution was one of the and regional actors in the sense that to have less serious offences listed on a Added to this, Attorney Doug Matacoearliest propositions for an Israeli-Pal- the past months have reduced hopes

criminal record. If they are represent- nis believes Lynch “completely miss-

= for a two-state solution. John Kerry’s ed by private counsel, defendants also es the advantages to a defendant.� The by the British in their White Paper of

shuttle diplomacy in the region has save the monetary costs of a lengthy sentence is typically lighter than what

1939, which suggested a state run by

done little to aid the two in reaching trial. Suspects might confess despite they might get if they were found guilty

both Jews and Palestinian Arabs, rep- an long-lasting agreement, and Op- being innocent because mandatory at trial. Additionally, a defendant might resentation being based on the popula- eration Protective Edge has shown minimum sentencing rules can make decide to plead guilty in order to avoid tion. Yet this was unpopular amongst how easily the political discussions

such a choice rational - rather than risk legal fees that they cannot afford, or in

Arabs, who had been revolting since ) a 30-year sentence, some take the plea order to avoid having the embarrassing 1936 against increasing Jewish migra- 4 % of a much shorter one.

details of a case become public. A plea

tion into Palestine. A one-state solu- to feel when viewing this part of the

Much of the criminal law is aimed at deal that allows a defendant to avoid a

tion has by now also lost most of its world, and unfortunately such pes-

preventing crimes through deterrence. felony conviction and plead guilty to a

attractiveness, as the two Arab and

simism is well-grounded. But that If this is to work, the risk of punish- misdemeanour is, in many cases, a bet-

Jewish community quickly devel- is not to say that there are a variety ment must outweigh the temptation to ter deal. oped separate cultures and economies. of possible roads available for the

commit crime. An essential component Are there abuses in the plea bargain-

The most quoted, and widely sought af- statesmen of Palestine and Israel. of rehabilitation is a respect for society ing system? No doubt. One could arter peace solution is arguably the twostate solution, which would see both

Deal or No Deal? Andrea Efthymiou

the state of Israel and Palestine coex-

and its laws. However, plea bargaining gue that court-appointed attorneys, for teaches the criminal that judges and example, have an incentive to pressure lawyers can manipulate the law when their clients into accepting quick plea

ist in the same territory and recognize Plea bargaining has come to dominate it is expedient to do so.

deals because they lose money the

each other’s right to do so. Currently, the administration of justice in Amer- A 1967 report issued by the President's more time they spend on a case. SimPalestine consists of the West Bank ica, affording uncontrollable power to Commission on Law Enforcement stat- ilarly, prosecutors sometimes use the and the Gaza Strip, which has differ-

prosecutors. A plea bargain is an agree- ed that there are “dangers that excessive threat of felony charges that might not

% & - ment in a criminal case where the pros- rewards will be offered to induce pleas hold up at trial to force a plea to a mistah represents the Palestinians of the ecutor agrees to reduce a charge in ex- or that prosecutors will threaten to seek demeanour. West Bank, whilst Hamas represents change for the defendant's guilty plea, a harsh sentence if the defendant does

This is not the only problem. Plea bar-

~ normally to a lesser offence. Although not plead guilty�. Such practices place gaining can be used in conjunction lie ahead for Israel and Palestine is this often criticised, more than 90% of unacceptable burdens on the defendant

with “snitch testimonies�. Deals with

- criminal convictions come from nego- who legitimately insists upon his right co-operating witnesses, once rare, have ly with Hamas as it has been considered

tiated pleas; meaning less than 10% go to trial.

a terrorist group by both the European to trial.

Timothy Lynch, director of the Cato’s

grown common. In federal cases, an estimated 25-30% of defendants offer

Union and America, and calls for the  & ‚ Institute Project on Criminal justice, some form of co-operation; around extinction of the Israeli state. Due to

Wisconsin Court of Appeals, leads the goes back to the fundamental Constitu-

the security risks of being a neighbor-

attack against this process, describing tion of America. The Bill of Rights ex- ten sways juries, as snitches are seen

ing country with a deliberately aggres- it as “a double evil; encouraging crime plicitly guarantees several safeguards

half receiving credit for it. This ofcontinued on the next page

THE ADVOCATE

0DUFK 2015

7

continuations...

risk of harm. The new statute allows into temporary foster care at the very children can stay with their fam- ilies } $ % the state to take these children into care least in order to avoid a Baby P type and only the children who really are in of the North-Western University Law and have them adopted without their scenario. This has led to this new stat- danger to be taken away. birth parents’ permission. The depart- ute being too focused on adoption over ‘Emotional abuse’: The problem tions found that 46% of documented ment of education have stated that the other methods such as support and with allowing children to be forcefulwrongful capital convictions between aim is to get children who are at risk ad- parenting classes for the parents. The ly adopted because they are ‘at risk of School’s Centre on Wrongful Convic-

1973 and 2004 could be traced to false opted as quickly as possible. Although Right Honourable ex high court judge emotion abuse,’ as the new act states, is testimonies by snitches, making them ‘closed adoptions’ were allowed in the Hedley has recently stated that he be- that it is far too subjective. Two social

UK before this statute, many have crit- lieves that the Baby P case has made workers could walk into identical scebe pressured into accepting a plea bar- icized this new approach as being too the law and social work done in this narios and one may deem that a child the leading cause. The defendant may

7 < biased towards adoption and drawing area too cautious and defensive. is at risk of emotional abuse while the evidence being stacked against them. focus away from helping birth families ) ‡ % other reports a perfectly normal family Most defenders of plea bargaining be- and their relatives raise the child themlieve that without it, an already over- selves. burdened

criminal

P case is clear is the case Lucy Allan scenario. Therefore, by allowing chilMP of Telford. Mrs Allen was deemed dren to be forcefully adopted if they

justice

system

% - are at risk from emotional abuse, the would grind to a halt. An excuse often This statute is just a product of the ever vices due to a mild depression she was state is creating a situation whereby the advanced is that a lighter sentence is expanding welfare state and perhaps suffering. Unfortunately, Mrs Allen future of a child and who they grow up better than none when the evidence now is taking it a step too far. Clear- reported that the social workers were with is determined purely on the aris weak, and that it is better to get a ly, in the right circumstances, once all asking many leading questions such as bitrary and subjective observations of dangerous person off of the streets for has been done for the birth families ‘this is the worst depression you have $ ' % a short time than to risk an acquittal. There are proposals, however, that the perception that the criminal process

in terms of state support and funding, ever had, isn’t it?’ and ‘you are clinical- should be in place whereby there are then if the child is still at risk they ly depressed, aren’t you?’. This shows multiple checks and consensus be-

would collapse unless substantial in-

should be adopted out of the family. the sorry state of affairs that can lead to tween police, GPs and social workers But the statute goes too far; it severs forced adoptions. Luckily, Mrs Allen that a child is at risk and only when

ducements are offered has tended to

the legal relationship between the birth received an independent psychological the entire group of professionals agree

rely upon assumption rather than empirical evidence.

family and child meaning the child is no longer legally related to its parents

Judge Rakoff proposes two reforms: Scrapping mandatory minimum sentencing

or birth siblings. The Act allows the state to monitor any future births in the family and put those future children on

Reducing the prosecutor’s role in plea-bargaining, such as bringing in a magistrate judge to act as a broker Whilst this topic is hot on the agenda for the administrative process, whichever path is pursued will be slow and gradual given the competing views and practicality of the system. Consultation and empirical evidence will have to be obtained and if there was to be a reduction in the prosecutors’ power; options explored. There will be heavy reluctance to change the workings of the system, despite the heavy cries from many protestors.

care orders and also promotes adoption outside of the family to complete % This Act is an example of the state being too protective and not letting people try and sometimes fail. Surely birth families should be given every chance to try and raise their child it is taken away? Not only for the family’s sake, but for that of the child. This Act does analysis which proved that she was not should the child be taken away. not focus enough on the effect of forced a risk to herself or her son. However, it $ The UK law in this area adoption on the child as it merely as- took two years for the accusation to be should provide three things: sumes that it will be positive. There is removed from her records so that she Less of a focus on strangers adopting no consideration for how a child may could work with children if she chose the children and more on the emotionbe damaged socially and psychologi- ' ) - al and psychological effects that this

Children and Families Act 2014: A Critical Review Kelly Thornton

cally due to being taken away from all ence that the Baby P case had in this will have on the child in both the long of its natural relatives and given abso- area of law. It shows the state’s des- and the short term. Visitation access to lutely no contact until the age of 18.

peration to remove children and to be children who need to be in foster care

$ % ' overprotective on the off chance that a whilst their parents are learning how Behind this act is the infamous Baby child might be at risk all because the to parent more effectively. Chance for

# & RXZ† P case which has spread panic through social workers and police do not want women who are vulnerable to putting the passion project of chief whip and the family courts and social services to appear to be ignoring serious allega- their child at risk to prove that they can now ex-secretary of state for education alike. There is an atmosphere of cau- tions. The way to solve this over-pro- parent their child properly and thereMichael Gove. Gove was adopted at 4 tion around all possible child abuse tectionist attitude would be to invest in fore less stress on vulnerable pregnant months of age and is now using this cases which means that when in doubt the monitoring of the parents and long- women. new Act to protect children who are at social services are likely to take a child term therapy so that wherever possible

8

THE ADVOCATE

0DUFK 2015

Editor’s Note

Q March RXZˆ " ! % fessor, articles from renowned legal organisations and an article swap with Politics Made Public. A special thanks to our interviewees, external contributors and to our sponsors, LexisNexis and Ashurst LLP. Many thanks to Paul Jacobs from the Copy Shop. Happy reading and stay tuned for our next issue! - Emilie Schou

Editor in Chief Emilie Schou

About Us The Advocate is a student-run legal newspaper delivering up-to-date legal news and comment. Estab RXX† % " ! % Pro Bono Society, The Advocate provides a platform for students to express their views on current legal issues. If you are interested in writing for The Advocate email your contributions to theadvocate@qmprobono.org. Editorial Policy: Articles over 1000 words % 7 ‚ } < The Editorial Board reserves the right to edit all submissions for length, grammar, and clarity. Views illustrated in such submissions are those

7 < % "! ‡ be submitted in hard-copy bearing a handwritten signature along with an elec-tronic version, or be mailed from the author’s e-mail account.

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Alexandra Badaoui

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