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ESSENTIAL READING FOR BARRISTERS

Est. 1999

1st october 2007 - 21st december 2007 www.barristermagazine.com

MICHAELMAS TERM ISSUE

ISSN 1468-926X

Making ‘good’ Even Better

Features

My report “A Strategic Review of Complaints

system was put in

and Disciplinary Processes of the Bar Standards

place.

3

Board” was published in July after nine months intensive work. It was welcomed by the Bar

It was a genuinely

Standards Board, the Board’s Consumer Panel,

open and evidence-

the Chairman of the Bar, and the consumer

based

groups, Which? and the National Consumer

In addition to a

Council. This is a strong constituency for much-

public Issues and

needed change, but the real test – effective and

Questions

swift implementation – is still to come.

which elicited views

ROB BEHRENS

The Review process

from wide range of

Complaints Commissioner to the Bar Standards Board

The Review was launched in September 2006,

stakeholders,

three

Complaints

Debora Price of London University was

Commissioner and ten years after the present

commissioned to run a quantitative

months

after

I

became

exercise.

MEDIATION ADVOCACY: A SAFEGUARD FOR THE CONSUMER AND A MARKET FOR THE BAR While the Bar is ideally placed to bring to new markets its three traditional core skills of critical analysis, problem solving and communication, barristers have to adapt to providing advocacy in an environment which is intended to be non-adversarial By Andrew Goodman, LL.B., MBA, FCIArb, FInstCPD, FRSA, Barrister

paper,

12

Dr

p.6

reversed in the Commons. The Government must show change in practice, not just an appetite for it." He added: "The role of the judiciary has been strengthened by the Constitutional Reform Act 2005, and by the creation of the Judicial Appointments Commission. However, Ministers must show themselves willing in practice to limit their own powers. "A specific example is the appointment of the new Legal Services Board as the oversight regulator of the legal profession. That Board must be - and must be seen to be - independent from the executive, and should be appointed with independent input as we have proposed. "Ministers must never speak or act in a way that undermines the independence of judges, however greatly they may dislike their decisions." Turning to the issue of rights and responsibilities, Mr Vos said: "We will look closely at what can be seen as British rights: the right to a fair trial, the presumption of innocence, habeas corpus, trial by jury for serious offences, the burden of proof on the prosecution, freedom of speech, association and assembly. "We will also examine whether citizens can have codified responsibilities, and how these would be compatible with the Human Rights Act and Convention law generally."

“THE LEGAL SERVICES BILL: NEW RESEARCH FROM THE FRONT LINE” We are just a matter of months away from arguably the most significant upheaval that the legal profession has experienced in living memory: the Legal Services Act. James Tuke, Head of Intendance Research, reveals the findings of a new report, published by Sweet & Maxwell, into the impact of the Act on the Bar and other members of the legal profession.

Bar Council Enters Constitutional Debate The Bar Council has welcomed the debates triggered by the recent Green Paper entitled "the Governance of Britain" and signaled its keen interest in using the Bar's expertise to make a material contribution to the discussions that will follow. The Bar Council will be setting up three groups to deal with its responses on: • the constitutional issues and the suggested Bill of Rights and Duties • the role of the Attorney General • the promotion of greater awareness of citizenship especially among younger people. Chairman of the Bar, Geoffrey Vos QC said: "We welcome the publication of the Green Paper and I am confident that the Bar can provide constructive input. "The citizenship objective of the Green Paper ties in well with the Bar Council's work on making access to the Bar more accessible to young people from less privileged backgrounds. "We also believe that the executive must respect both Parliament and the Judiciary. "For that to be truly the case, things have to change from where we are now. The Government conducts consultations, the results of which are often ignored. Parliamentary committees produce well thought-out reports which are not acted upon. The House of Lords works to make improvements to Bills which are promptly

PRICE 3.00

14

UNCOVERING HIDDEN INNOVATION IN THE LEGAL AID SECTOR By Dr Michael Harris, senior research fellow, NESTA (the National Endowment for Science, Technology and the Arts)

News p.18 'Glass Ceiling’ Breakthrough For ILEX Members p.19 New editor for Law Society Gazette

Editor: Nigel Simmonds 0870 766 2715 email: info@barristermagazine.com Publishers: Media Management Corporation Ltd Publishing Director: Derek Payne Design and Production: Alan Pritchard Cambridge Printing Park Tel: 01223 423000


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s

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03

Mediation Advocacy: a safeguard for the consumer and a market for the Bar By Andrew Goodman, LL.B., MBA, FCIArb, FInstCPD, FRSA, Barrister

S

pecialist advocacy in mediation

particularly when opening their client’s

away from the generalist mediator to the

is still in its infancy. But there

case. They forget that mediation in all its

specialist mediator be he or she a lawyer

is no reason to suppose that,

forms is a departure from the adjudication

or other expert. It has been recognised

as

schemes

model and, theoretically at least, the promise

by sophisticated commercial parties with

develop and mediation comes

of mediation offers disputant control and

complex disputes that lawyer mediators

court-annexed

to be regarded as just another

informal structures, accessibility of language

with expertise in the field of the dispute give

form of dispute resolution hearing in which

and form, direct lay participation and

mediation a better chance of success. Informed

representation is accepted as a matter of

decisions based on voluntary agreement

commercial parties look for sensible reasons,

course, the advocate’s particular expertise

and not rule-making. It impacts upon the

based on proper risk analysis of the litigated

should not be developed so that mediation

parties as a therapeutic reintegration of their

outcome of the dispute in question, to found

advocacy becomes a desirable specialist skill,

relationship based on compromise and the

a recommendation for settlement.

and one that can be actively promoted in the

readjustment of their interests – not their

settle because there are sound commercial

market place. And if that is so, why should

rights and obligations under law - through

reasons for doing so, usually based, at least

the practising Bar not benefit?

shared

gains.

Transformative

They

mediation

in substantial part, on a careful analysis of

harnesses the energy generated by the

the strengths and weaknesses of the case as it

One present difficulty is that the market

dispute and transforms the process into a

may fare if the dispute proceeds further along

place is and continues to be mediator-

problem-solving exercise.

the litigation road. All this has an impact on

centric. At whatever pace the mediation

the responsibility of the representative. He or

industry continues to grow, all of the main

For the present and immediate past generation

she has a specific role and must be thoroughly

players and the Ministry of Justice focus their

of lawyers, and particularly advocates, who

prepared.

attention almost exclusively on the needs of

have been programmed that their prime

the mediators: training, standards, ethics,

function is to prove their client’s case and

This preparation requires the mediation

regulation and distribution of work are all the

disprove that of their opponent, the mediation

advocate to have clear strategic objectives: he

province of mediator training organisations.

process comes as an enormous jolt to their

or she does not have to buy into the pejorative

Very little attention has yet been paid to

professional psyche.

To them, disputes,

idea that mediation is a limp-wristed affair,

the standards and techniques of those who

even if referred to a mediation process, are

or just a horse trading exercise. It has a

appear to represent parties at mediation

still regarded as bi-polar, i.e. a complaining

sophisticated dynamic and requires astute

appointments, either in terms of safeguarding

party who claims an infringement of his

planning from the advocate who wishes to

the consumer or looking at what could be an

rights based on social norms, and who seeks

get the best available result for the client. In

entirely distinctive market for practitioners.

a remedy granted by society against a party

that sense it can be as time-consuming and

Those who currently practise by using the

the subject of complaint. Lawyers are trained

intellectually satisfying as trial litigation. It

term ‘mediation advocate’ are either lawyers

to create and defend interests; disputants

certainly involves applying professional skills

in mainstream dispute resolution practice or

use the idea of their rights to sustain beliefs,

in the pursuit of excellence like any other

those who are already trained mediators, and

rationalise self-interest, convince a broader

aspect of the lawyers work since in addition

usually both.

audience and generate expectation of or have

to preparing the case as to the evidence and

preference for specific outcomes. Therefore

law, the mediation advocate must know both

While the Bar is ideally placed to bring to

the ideological movement from adjudication

when and why to advance mediation, and

new markets its three traditional core skills

to mediation as a problem solving exercise is

how to resist such a request (including from

of critical analysis, problem solving and

particularly difficult for the lawyer.

the other side) without attracting a potential

communication, barristers have to adapt to

costs sanction; how to choose the right

providing advocacy in an environment which

The reality is somewhat different when

mediator and venue for this dispute; how to

is intended to be non-adversarial. Some find

looking at mediation as an adjunct of civil law

engage the mediator before the appointment;

that hard to do, and end up undermining

procedure. Civil and commercial mediation

how to prepare a written statement of case;

the process and being a hindrance to their

models in this jurisdiction have become

what to provide by way of an opening; how

client’s true interests. All require some

crystallised over the past ten or so years

to select who should attend, what they will

degree of training. Experienced mediators

to such an extent that mediator training is

say and what their role will be; devising an

complain that too many barristers appearing

now almost uniform. Over the same period

opening negotiating position and subsequent

at mediations think they are engaged in some

mediation service providers such as ACI-

strategy, both proactive and reactive in

form of summary judgment application,

Resolex report there has been a clear move

dealing with the other side; ascertaining from


04

the barrister

the client how to find wider interests rather

The answer may lie in the creation of a new

is a member of the Civil Mediation Council.

than focus on present distinct causes of

cross-professional organisation which has

He was requested to submit evidence to

action; and how to identify for the mediator

been established to promote the work of

Lord Woolf's Committee on Access to Justice

workable solutions which suit both sides.

barristers and others who represent parties

on Court Annexed ADR Practices in other

And in all this the representative is not solely

in mediation and other ADR procedures and

jurisdictions. Between 2001 and 2003 he

a champion: - he or she will variously have

is intended to be run along specialist Bar

served as a Nominet UK Domain Name Panel

different roles through which to intervene in

association lines by those who have set it

Expert. He is currently a member of the Bar’s

the conflict during the process. The support

up. The Standing Conference of Mediation

ADR Committee and a mediation advocacy

that the client requires ranges from informer

Advocates is a multi disciplinary cross-

trainer, and a lay member of the RICS Dispute

to

professional

organisation

Resolution Review Group, and formerly of

friendly peacemaker, judge (of the offers

established to promote and deliver best

its Ethics, Conduct and Consumer Policy

and eventually the settlement), repressive

practice

in

Committee. He is a guest lecturer on ADR

peacemaker (pushing the reluctant client for,

mediation advocacy through individual and

for the Lord Chancellor's Visiting Chinese

objectively, his own good) and ultimately, a

corporate training and commercial activities.

Lawyers' Fellowship Programme.

healer, providing consolation for the client’s

It will provide a forum for discourse among

He is the author and editor of over 30

reduced expectation and understanding that

mediation practitioners, deliver reasonably-

books including Mediation Advocacy (With

the outcome was beneficial. Good lawyers

priced, certificated and accredited skills

Alastair

should be healers too.

training for mediation advocates, monitor

Judges

and validate members’ training and CPD

and Analysing Judgments (Xpl publishing

If this assertion comes as a surprise to the

records, actively promote the expertise and

2005), followed by its sequel Influencing

advocate, or is met with some scepticism,

experience of members in the marketplace

the

such a reaction probably derives from both

and engage

with mediator organisations,

Advocacy in Practice (Xpl 2006). In April

social values and the content of traditional

mediation service providers, clients of the

2006 Andrew Goodman established Xpl-

advocacy training: the trial holds a pivotal

process

in

Professional Skills Training offering bespoke

place in both adversarial training and

mediation and associated fields. The SCMA

in-house specialist and advanced training

popular culture, with very little public or

website is at www.mediationadvocates.org.

in specialist and written advocacy and

literary consciousness of mediation. What

uk and contains an open resource section for

mediation

this means, for our purposes, is that at the

practitioners.

www.xpl-pst.com

outset of a conflict the disputant will seek the

The Bar was slow to engage with the

of the Standing Conference of Mediation

assistance and comfort of his lawyer as a hired

mediation industry, and may still feel that

Advocates

gun, or champion, before the actual dispute

solicitors filter practitioners out of a process

uk) and practises at 1 Chancery Lane (www.

procedure has been identified. Popular ( and,

which ought to be a natural market for its

agoodman@1chancerylane.com)

to an extent, practitioner) culture is not yet

skills. By improving our specialist skills in

sufficiently sophisticated to recognise that

mediation advocacy the Bar can open up that

mediation is not, or not necessarily, a legal

market to the full and impress upon both

process akin to a trial, and the mediation

professional and lay clients the idea that it

industry have done little to increase public

should be as natural to engage counsel for a

awareness of the distinction in an attempt to

mediation as it is for a trial.

adviser,

translator,

ally,

negotiator,

and

and

member

trade

professional

academics

excellence

researching

Hammerton)(Xpl Decide

Judicial

Cases:

Mind:

2006),

Reading,

Effective

How Writing

Written

representation/advocacy: Andrew

is

see:

Convenor

(www.mediationadvocates.org.

create its own mystique. It will slowly catch on, and we shall eventually see a mediation

© A Goodman 2007

featured in Coronation Street in place of the

Andrew Goodman LL.B., MBA, FCIArb,

usual courtroom drama.

FInstCPD, FRSA, Barrister

What then, of the barrister who wishes to

Andrew Goodman has been a barrister since

develop the specialist skills used in mediation

1978 and an accredited CEDR mediator since

practice to take advantage of this new

1993 practicing in commercial, construction,

market? Many are interested in mediation

partnership,

but do not wish to become mediators; many

negligence and farming disputes. He has

wish to acquire the skills but view the cost

been recommended as a leading junior in

of the 25 hours training required to obtain

professional indemnity work in the Legal 500

Civil Mediation Council accreditation as

for 11 years and for four years was listed in

prohibitive; some recognise that this cost

Chambers Directory as a leading practitioner

may not be recouped in practice since much

is ADR. He is currently Professor of Conflict

of the mediation work is retained by existing

Management and Dispute Resolution Studies

experienced

at Rushmore University and undertaking

trainers.

mediators

and

mediation

franchising,

professional

doctoral research in mediation dynamics at Birkbeck College, University of London. He

The barrister magazine cannot accept responsibility for information supplied by other parties, views expressed may not necessarily be that of the editor or publishers.


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06

the barrister

survey of 1200 barristers and

that despite its merits, the system is not

in setting out authoritatively the rules for

complainants.

survey

sufficiently joined-up, so that too often one

complaints and discipline.

generated a 56 per cent response

set of decision-makers is unsighted about

rate,

surveys

decisions further along in the process. They

Secondly, placing the weaknesses of the

in other sectors expect a response of 20

also think the system is too lightly resourced

system within the context of this success

per cent. Questionnaires were also sent

in terms of written guidance, development,

(to avoid throwing the baby out with the

to 300 members of Bar Standards Board

training and mentoring.

bathwater). The weaknesses to be addressed

p.1

when

The

equivalent

committees and Council of Inns of Court

include a failure to communicate effectively

panels who make operational decisions about

And fourthly, despite her support for the

with complainants and a relative failure to

individual complaints. Again the response

proposals in the Legal Services Bill to create

join the system up in a way that decision-

was encouraging and over 50 per cent. We

a new Office for Legal Complaints dealing

makers are properly resourced for tasks, feel

interviewed a number of these respondents

with all complaints of poor service by both

part of a wider framework, and are capable

and also visited as many relevant counterpart

barristers and solicitors, the Legal Services

of giving effective feedback to the profession.

organisations as we could.

Ombudsman

consistently

endorses

the

relative coherence of existing arrangements.

Thirdly, recognising that a large change is

The benchmark tools I used were drawn from

She draws attention to the probity of Bar

coming with the implementation of the Legal

a wide variety of regulators and complaints

Standards Board decisions in individual cases

Service Act institutions in 2010 or 2011, and

handlers. And I had a most interesting time

and confirms that the quality and speed of

so rejecting fundamental changes at this

defending my emerging ideas with members

investigations consistently out-performs those

point, but stating plainly that complainants

of the International Bar Association at a

conducted by the Law Society’s complaints

and barristers have a right to a more effective

meeting in Zagreb, Croatia. It was there that I

handling organisation (now called the Legal

system than they currently have access to.

discovered that the UK is comparatively rare

Complaints Service).

in involving non-lawyers in the discipline

Themes of the

arrangements for lawyers.

Review The result of this far-reaching evidence gathering

was

a

Review

which

was

The

Review

comparative in nature and which didn’t focus

seeks

to

make

narrowly on the Bar in England and Wales.

sense of this wide range of views

What people think

by

articulating

three key themes From all this engagement I found out four key

as the basis for

things. First, despite concerns about delays

action.

in the process, barristers do think current

acknowledging

arrangements work fairly well and would

the

relative

wish that the existing system should continue

success

of

broadly unchanged.

system in terms of

Secondly,

complainants

do

not

the

First,

the

quality

think

of its decision-

arrangements work well and they have little

making and its

confidence in the integrity of the system. They

decision-makers

are sceptical about its independence and

(barristers

three-quarters think the system is stacked

working

'pro

against them. They also believe existing

bono'

and

processes are arcane and unnecessarily

independent lay

complicated.

members),

and

the effectiveness Thirdly, Committee and tribunal members

of

and Bar Standards Board staff believe

of

the

Code Conduct

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08 p.6

the barrister

of referring a complaint to Chambers if it

Core Recommendations.

get regular feedback on how they are doing.

comes direct from a client. In this, I anticipate the provisions of the Legal Services Act;

The Way Forward

to bring the system in to line with modern

In addition there should – in my

The Bar Standards Board welcomed the

regulatory arrangements. These include:

view – be an extension of the powers of

Review Report at its June 2007 meeting, and

At the heart of the Review is a range of common-sense proposals

aims

both the Complaints Commissioner and the

endorsed all the major proposals at its meeting

and descriptions of the system, a telephone

Complaints Committee to take executive

in July 2007. An Implementation Group has

helpline for complainants, the option of

action to adjudicate in service complaints

been set up to consider how the proposals

online submission of complaints and a small

and minor cases of misconduct. Here I have

should be taken forward, and there will be

number of published service standards;

taken expert legal opinion to ensure that the

consultation with stakeholders in the autumn

rights of complainants and barristers are not

with a view to implementation by mid-2008.

Published,

plain-English

for

adversely affected. This should speed up the

The prospects are encouraging, but there

decision-makers on committees and panels

process and will allow us to resolve a number

is still some way to go. The biggest mistake

in terms of written guidance, development

of cases without them going all the way to

would be for the Bar to sit back and await the

and training (particularly for staff) and

tribunals and hearings.

implementation of the Legal Services Act in

More

effective

resources

2010 or 2011 before contemplating changes

mentoring; I have looked closely at suggestions that

to the complaints system.

Proposals to make the system

the system is insufficiently transparent or

clearer to complainants with a new route

independent. I believe there are simple

I was told at the beginning of the process

map clarifying at the beginning of the process

things that should be done to improve what

that the system was ‘state-of-the art’. It is far

how the complaint will be handled. Here, I

is already a relatively transparent and

from that, but what we do have now is a clear

address the strong feelings of complainants

independent set of arrangements. First,

way ahead. There is wide-ranging support

that the system is obsessed with professional

sponsor notes considered by the Complaints

for the changes I have proposed and now is

misconduct and insufficiently focused on

Committee should be made available to the

the time for action.

questions of poor service. I note that at present

parties to a complaint and at present they are

the non-disciplinary offence of Inadequate

not. Secondly, the Complaints Committee, to

Professional Service only applies where the

whom I refer prima facie cases of Inadequate

Rob

barrister’s action is related to a client. And so

Professional

to the Bar Standards Board. His report,

I have suggested that a new non-disciplinary

misconduct does superb work and its Chair

A

offence of Improper Behaviour be introduced

and Vice-Chairs provide magnificent public

Disciplinary Processes, can be read on-

where a barrister’s behaviour falls short of

service. Nevertheless, I think there is a strong

line

professional misconduct to a non-client.

case for increasing the lay independent

If you would like a copy of the Review,

membership of the Committee and taking

please

In addition, and more radically, I have

away the requirement that its Chair should

barstandardsboard.org.uk.

proposed a range of measures to improve

be a barrister of 20 years standing.

Service

and

professional

the proportionality of the system. A central weakness of current arrangements is that

Finally, I have also looked very carefully at

they pay insufficient attention to the issue

the pro bono contribution of barristers to the

of risk and proportionality so resources are

system. In the Review I set out tests for its

used without regard to the seriousness of

effective operation. The arrangements work

a complaint (in common parlance, using a

well and the commitment for those who give

sledge-hammer to crack a nut).

freely of their time must not be undervalued. However, there needs to be greater emphasis

There is strong support for measures here

on how the Nolan rules are used to recruit

from both barristers and complainants and I

barristers and independent lay members

have proposed two important changes:

to the system. And there needs to be a more explicit contractual relationship with

To ensure more effective chambers

committee members and panel members so

handling, I believe there should be a possibility

they know what is expected of them, and can

Behrens,Complaints

Strategic

at

Review

of

Commissioner

Complaints

and

www.barstandardsboard.org.uk.

email

ComplaintsCommissioner@


09

the barrister

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Workplace Mobbing – A Growing Menace There is no doubt that mobbing in the workplace is a major and a growing problem on a global scale. Professor Dexter Morse examines mobbing and how it can be managed. harassment costs a company with 1,000

Mobbing and bullying affects employees at all

employees about EUR 150,000 (USD 200,000)

levels but most perpetrators are managers.

obbing is the term

a year. Some researchers have found that a

A study at Manchester University found that

used for systematic

mobbing victim has a 60% reduced working

94% of respondents thought bullies can get

bullying, harassment

performance while costs for the company

away with it and one in six said that their

or

increase by 180%.

employers encourage bullying management.

What is mobbing?

M

psychological

It also found that bullying correlates with

terror,

particularly

in

workplaces,

Research in the US indicates that mobbing

autocratic managements styles, divisiveness

whereby one person is “ganged up” on

costs US companies more than USD 180

and punishment for no obvious reason and

and stigmatized by peers and/or superiors.

million in lost time and productivity. Results

with a negative work climate, high workload

of a national US poll by the Employment Law

and unsatisfactory relationships at work In

was

Alliance released in March 2007 revealed that

Switzerland various sources show that 62 -

pioneered in the late 1980’s by the Swedish

44% of workers have worked for a supervisor

85% of mobbers are managers. This is also

psychologist Heinz Leymann who borrowed

or employer who they considered abusive.

supported by research in other countries.

Research

into

this

phenomenon

Research in Norway (Einarsen and Skogstad)

the term from animal behaviour studies describing perfectly how a group can attack

In Australia, a survey found that 85%

indicates that 49% of mobbers are men, 30%

an individual simply based on negative meta-

of Human Resource (HR) officers at 325

are women and in 21% of cases the mobbing

communications from the group. The term

companies experienced or saw a colleague

was committed by both.

has long been used in ornithology where it

suffer bullying at work. According to research

refers to the behaviour of birds harassing

at Griffiths University, 350,000 people are

Who are the victims?

something which represents a threat to

currently subject to long term bullying in the

Research shows that victims are normally

them.

workplace and 2.5 million experience some

targeted on the basis that they are more

aspect of bullying over their working lives.

attractive,

It is estimated that workplace bullying costs

successful or popular. They are usually above

risk

Australian business AUD 13 billion (USD 10.6

average performers, more efficient and often

morale,

billion) each year through absenteeism, loss

better at what they do than those who bully

of productivity and legal fees.

them.

anxiety, paranoia, negativity and reduced

How long can it last?

The Stages of Mobbing Action

productivity. Key players leave. The effects

In most cases, mobbing lasts for long periods

are long-lasting.

of time. The UK National Workplace Bullying

1.

Survey (2006) found that most victims had

realms

Mobbing

constitutes

management

issue.

a It

severe

destroys

erodes trust, kills initiative and results in a

high

achievers,

competent,

dysfunctional company with a climate of guilt,

“Incidents of

within the communication”

been bullied for over a year and almost 23

This includes actions where targets experience

Extent of the Problem

% had been bullied for six to twelve months.

limitations placed on self expression –

In the UK, it was estimated that 2 million

Research

that

constant interruptions, being shouted at or

people had been bullied at work in the first 6

mobbing normally lasts 15 – 18 months while

told off. Targets might also receive unjustified

months of 2006. In about 75 % of cases, the

in Germany mobbing usual lasts for a period

constant criticism of their work or their private

perpetrators were managers or supervisors.

of 29 to up to 47 months.

life. More overt active mobbing incidents

in

Scandinavia

indicates

According to 2006 research by Peninsula,

in this category include telephone terror,

81% of employees said they had been bullied

verbal threats, written threats or alienation

in the workplace and 71% said work place

How can it be identified?

through

bullying was on the increase. Interestingly,

Mobbing is very subtle so it can be difficult

Sometimes mobbers use information that

a meagre 13% of employers admitted that

to

has nothing to do with work to jab the target.

bullying was a problem in their workplaces.

easy to see – excessive workloads, lack of

recognise

but

its

consequences

are

devaluing

glances

or

gestures.

“Effects on social reputation”

support, a climate of fear and high levels of

2.

Estimates for the EU shows that 9% of

insecurity leading to higher-than average

The mobbers become more aggressive by bad-

workers (about 12 million people) suffered

staff turnover and sickness absence. If not

mouthing and/or spreading rumours about

mobbing/bullying in 2004.

addressed, mobbing can spread throughout

a target, making him/her look ridiculous or

an organisation like an infectious disease.

the focus of mean and abusive jokes. Human

An evaluation by the International Labour Office (ILO) has found that psychological

Resources Departments often remain passive Who are the Mobbers?

or even participate in the mobbing.


11

the barrister

3.

“Instilling

doubts”

highlight the views of employees on mobbing

The Legal Situation

When a target becomes beaten down, company

In 2006 the UK court case of Helen Green

issues.

officials might force him/her to undergo

against

2.

medical examination. To further compound

catastrophic extent of mobbing. A High Court

a good source of information on mobbing

the problem, mobbers instil doubts about the

Judge, Mr Justice Owen, ruled that Deutsche

and mobbers. It is too late for the exiting

target in others – suggesting that he/she is

Bank Group Services Ltd was responsible for

employee but may enable the company to

not “really” ill. Other actions include constant

causing her two nervous breakdowns and a

improve things for other employees – often

questioning of their decisions, making sexual

major depressive disorder as a result of their

the same names will come up repeatedly.

approaches/offers or even obscene language

“relentless campaign of mean and spiteful

3.

or gestures aimed at them.

behaviour designed to cause her distress.”

should be kept – this data should be absolute

In Court Ms Green said that she had suffered

(actual number of staff who leave each year),

the life”

psychiatric injury as females colleagues had

relative (expressed as a percentage of total staff

stonewalled her, removed her name from

employed), departmental and manager based.

Here critical damage is inflicted by suggesting

circulation lists, hid her mail, removed papers

This helps to identify “trouble spots.”

that the target is no longer required and must

from her desk, laughed in her face, blew

4.

be eliminated. For example, assigning him/

raspberries at her and told her, “You stink.”

Some people perceive “tough” managers as

her work which is offensive and well below

Bullying in that department was a longstanding

“mobbing” managers when in fact weak,

their level of knowledge and experience or

problem to which other employees had fallen

ineffective, unsupportive managers can be

constantly switching tasks around so that

victim.

The Judge described the bank’s

just as likely to mob through their behaviour.

they cannot complete the tasks. This seriously

management as “weak and ineffectual” and

compromises their ability to achieve work

continued “The managers collectively closed

5. Implement an anti-mobbing policy. Ensure that all staff are aware of the

goals.

their eyes to what was going on, no doubt in

policy

the hope that the problem would go away.”

ongoing

“Physical attacks with an impact on the health of the target.”

Deutsche Bank was ordered to pay Ms Green

mobbing,

GBP 817,000 (USD 1,586,000), plus legal

and how to deal with it. Once mobbing

In this category, aggressive attempts to

costs and interest.

behaviour

“Attacks on quality of occupation and 4.

5.

Deutsche

Bank

highlights

the

Exit interviews also represent

Statistics on staff turnover

Understand

and

commit

training

for

bullying has

the

to all

problem.

it.

Provide

staff

covering

and

been

harassment

identified,

swift

action must be taken – ideally by utilising

destroy targets include an obligation to carry

external

mediation.

out unhealthy tasks or a menace of physical

Where legal redress is inadequate there is a

force. There might be use of physical pressure

growing trend for victims to resort to other

“to teach someone a lesson.” Mobbers can

means to hit back at their employers. For

become even more destructive and aggressive

example, bomb threats and the disclosure of

It is interesting that the term “mobbing”

with actual physical abuse or sexual touching

negative information to the media about their

is derived from ornithology since most

or damage done to a target’s workstation or

former employer, which can have devastating

corporate

home.

effects on the company’s reputation and

mentality” to the problem. When they do

share price.

accept it exists it is frequently trivialised as

cultures

display

an

“ostrich

a mere “work conflict.” High staff turnover,

Effects on the Victim

In

Sweden

sickness absence, poor productivity and low

Mobbing has destructive effects on the

and Norway there are anti-psychological

morale cost companies dearly. How long

health of the victim. The symptoms range

harassment laws. On June 1, 2004 Quebec

can companies afford to adopt this ostrich

from

skin

became the first North American jurisdiction

mentality?

rashes,

headaches, loss

of

sleeplessness, confidence,

countries

such

as

France,

tearfulness,

to include protection against psychological

difficulty concentrating, lowered immunity,

harassment of employees in its Act respecting

Prof. Dr Dexter Morse is CEO of Dexter

gastrointestinal problems and nausea to stress

Labour Standards. Since implementation of

Morse International Ltd (www.dextermorse.

related illnesses, anxiety and depression,

the legislation, employers have established

com), a company specialising in training,

suicidal thoughts and heart disease and in

clear procedures for employees to report

coaching and consultancy worldwide and

extreme cases murder and suicide. In Sweden,

harassment cases (including psychological

currently running a series of workshops

Heinz Leymann estimated that 15% of all

harassment) and utilised specialised external

on Mobbing, Harassment and Bullying in

suicides there were the result of mobbing in

bodies more widely for this purpose.

the workplace (contact info@dm-inter.com for further information). Morse Mediation

the workplace. In Switzerland in July 2004, a 56 year old Senior Manager of a major

Since

in

Services assists companies and organisations

Zurich bank came to work at 08.00 a.m. and

South Australia can be fined up to AUD

in resolving conflicts and bullying in the

shot two of his bosses and then himself in his

100,000

workplace swiftly and effectively.

office. He was the victim of severe mobbing

"adequately manage" bullying behaviour.

August (USD

15,

2005

80,000)

employers for

failing

to

by the two bosses he shot. Two years later, to attend a Conflict Management seminar in

What can be done to stop Mobbing? 1. An anonymous attitude survey

order to avoid such escalations in the future.

of all employees should be conducted to

the bank announced that all employees were


12

the barrister

“The Legal Services Bill: new research from the front line” We are just a matter of months away from arguably the most significant upheaval that the legal profession has experienced in living memory: the Legal Services Act. James Tuke, Head of Intendance Research, reveals the findings of a new report, published by Sweet & Maxwell, into the impact of the Act on the Bar and other members of the legal profession.

T

he effect of the forthcoming Legal Services Act is likely to be seismic; commentators who studied the City’s transformation 20 years ago describe the impending Act as a ‘Big Bang’ moment for the legal profession. Just as occurred in the financial markets in the late 80s, it may take a few years before the shockwaves reach all corners of the profession, but some will feel the effects much sooner. There are cases where this is happening already: banks like the Co-op and Halifax are already offering legal services in competition with some retail firms. For barristers, the prospect of being able to form partnerships - Legal Disciplinary Practices (LDPs) - with solicitors will be upon us as soon as the Legal Services Bill has been given Royal Assent towards the end of this year. This will open up the possibility of individual barristers - even whole chambers - combining forces with solicitors under one roof. Irrespective of its opinions, the legal profession has recognised for some time that reform of the legal services in England & Wales is a reality. Initiated by an OFT report into competition in the professions in 2001, followed by Sir David Clementi’s legal services review in 2004 and subsequently adopted in a Government White Paper in 2005, the process of reforming the legal profession is now well under way. At the time of writing the current incarnation of the reforms, the Legal Services Bill is making steady headway through Parliament and is expected to be enacted before the end of 2007. In an era when the legal profession faces significant change there has been little or no formal research into the potential impact of the Act among those who will be most affected by it: practising lawyers. Intendance has a tradition of providing research to the legal profession – principally focused on the online activities of chambers and firms – alongside its website development services and new barrister time recording system. In 2005 we recognised the need to report to our clients on the significance of the legal service reforms proposed by Clementi’s recommendations. Intendance has recently completed an investigation into the threats and opportunities presented to the profession by the impending Legal Services Act. Published this summer by Sweet & Maxwell, ‘Brave New World:

Impact of the Legal Services Act’ reveals the results of two groundbreaking surveys among senior opinion formers within - and outside - the legal profession. To place the research in context of the Bar, Retail and Commercial firms, the results of the surveys were discussed with a select group of experts, including Geoffrey Vos QC in his capacity as Bar Council Chairman, Law Society President Fiona Woolf and former Managing Partner of Clifford Chance and Anderson Legal Tony Williams. This article presents some of the broad findings of this new research and examines the reaction of – and prospects for – members of the Bar. Looking first at the wider findings, it should be a matter of concern that just months before the Bill is expected to be enacted there still appears to be a widespread lack of awareness of the reforms and their implications (prompted by this discovery, Intendance has recently established the website www. legal-service-reforms.co.uk as a reference source). This relative ignorance may be partly attributed to the popular misconception that the reforms will have an adverse affect only at the retail end of the profession: the High Street firms. However, while the research shows this attitude to be broadly the case, both commercial firms and the Bar will not be immune to the effects of the new legislation: nearly 70% of our respondents believe that High Street lawyers will be either significantly or drastically affected by the reforms, but none thought that barristers and other solicitors would remain unaffected. This sentiment is reinforced by the opinions of those outside the profession. Among our sample was a small group of senior nonlawyers who thought that the reforms would be sufficient to encourage them to offer legal advice through the new entity of an Alternative Business Structure (ABS). They recognised that the value of retail experience coupled with established branding would constitute a significant advantage over law firms. This is not to suggest that the so-called ‘Tesco Law’ will come to dominate the legal landscape in the foreseeable future, but nearly 75% of all our respondents agree that within a year a major organisation from outside the profession will acquire or establish a law firm. Retail firms are shown to be most at risk from such a scenario because of the commoditised nature of some of their practices (PI, conveyancing, will writing); practices that a supermarket,

for example, could systemise and distribute via its established retail network If we extrapolate this finding it is possible that, having been successful in the volume end of the legal market, a large retail player will then turn its sights to higher margin work in, say, M&A. Some of the supermarkets have extensive legal experience and could use their knowledge of process to streamline components of an M&A deal. If not of immediate concern to barristers, such a move would give commercial firms food for thought. Following the same theme, there is general agreement among a majority of our respondents that the introduction of ABSs is likely to make the legal profession more competitive, but the quality of legal advice dispensed by legal professionals working under ABSs could be compromised. Barristers in particular are concerned about this issue, expressing more concern than aany other group; over three quarters fear that quality could be jeopardised. As for forming an ABS themselves, the majority of barristers are against this idea, with 66% saying that they would not be encouraged to follow this option at all. By comparison, 26% of solicitors gave the same answer. Neither is there much enthusiasm for LDPs among barristers. While 70% of solicitors could see some advantages or welcomed the new LDP system, half of the barristers surveyed either thought the idea was anathema or should be discouraged. Nearly 80% of barristers surveyed would not welcome the idea of their chambers being absorbed by a law firm. Hardly a match made in heaven, it seems… Asking our respondents to look at the reforms from the consumer (sic) perspective, while there are divided opinions among all lawyers on whether the reforms are likely to be of benefit to the consumer, the majority of barristers believe that the reforms are largely change for change’s sake. In a similar vein, remembering that these reforms were initiated by the OFT report, it is interesting to note that 30% of all respondents who see consumers (sic) benefiting from the reforms believe that increased competition will result in greater accessibility, better quality of service and lower costs, especially for the more routine legal services.


the barrister

When considering the effectiveness of the new Legal Services Board (LSB) and Office for Legal Complaints, respectively responsible for the regulatory and complaints handling aspects of the reforms, barristers are generally the most sceptical of all lawyers. Whether it is the ability of the LSB to exercise a light touch or to work independently of the Government, or the likelihood of the profession coming to blows with the Government over the performance of these two bodies, barristers express the greatest degree of concern. Although the majority of barrister survey respondents is negative about the Legal Services Act, the attitude of the Bar Council in particular has changed in recent times to the point where it believes the reforms may provide some answers to the challenges facing the Bar, rather than treating them as further obstacles to the status quo. Having opposed most attempts to strip away its privileges over the years, the present regime sees the Legal Services Act as more of an opportunity than a threat. For example, at the time of writing, the Bar Council is in the process of a consultation exercise over whether it should extend its regulation to employed barristers. So how can the Bar use the Legal Services Act to its advantage? The Bar Council is opposing the Carter Review ‘tooth and nail’ for fear it will damage the quality of service to the public, but if it is not successful, there would be advantages for barristers in forming an

ABS so they could employ solicitors to do the litigation part for criminal and family law. This would, in theory, make it easier for barristers to bid for work in competition with solicitors’ firms. Likewise, the additional flexibility of an ABS would be of benefit to chambers doing work for local authorities, many of which are increasingly trying to secure bulk deals with their suppliers. Also, a corporate or partnership structure would make it easier to provide junior barristers with a minimum income during the early years of their careers. ABSs or partnerships would, however, be less attractive to specialist, commercial and smaller regional circuits due to the conflict of interest problems they would create, preventing members of the same chambers appearing against each other as self-employed members of the same chambers are presently allowed to do. At first glance, the Bar would seem to be relatively immune from the most radical changes expected to shake up the solicitors market for retail legal services as most of its work is bespoke rather than process-driven, making it unsuitable for outside investors to develop large economies of scale. “Advocates are exempt from the ‘pile it high and sell it cheap’ approach,” says Geoffrey Vos QC, the current chairman of the Bar Council. However, as we have seen, the Bar will be at the forefront of the first measures of the Legal

13

Services Act to be implemented with the advent of LDPs, so interesting times lie ahead. In the survey, over 60% of respondents disagreed with the statement: ‘The independent Bar will be driven to extinction in the next ten years’. This reaction is to be expected for such a venerable institution, and it is most likely that the Bar will survive, but probably not in the shape it is now. History teaches us that change is inevitable, and those who don’t accept and embrace it face an uncertain future. By James Research

Tuke,

Head

of

Intendance

About the research: The 85 page report is the first in-depth research of its kind into the implications of the Legal Services Bill. The research includes the results of surveys and interviews with 89 senior respondents and more in-depth discussions with high-profile commentators such as Bar Council chairman Geoffrey Vos QC, Law Society president Fiona Woolf, former managing partner of Clifford Chance and Anderson Legal Tony Williams, and director of The College of Law’s Legal Services Policy Institute Professor Stephen Mayson. LPA Legal Recruitment helped coordinate the interviews. The report costs £750 a copy and is available now. To order, go to www.sweetandmaxwell.co.uk

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14

the barrister

Uncovering hidden innovation in the legal aid sector By Dr Michael Harris, senior research fellow, NESTA (the National Endowment for Science, Technology and the Arts)

I

nnovation is traditionally associated with developing high-tech sectors such as biotechnology or nanotechnology. But, important as such sectors are (or are likely to become), there is a danger that this narrow focus causes us to neglect the ‘successful exploitation of ideas’ - as the Government defines innovation - in sectors that are economically and socially important right now. For this reason, NESTA (the National Endowment for Science, Technology and the Arts) has been arguing for a broader approach to innovation by policymakers. This means the Government promoting and supporting innovation not just in manufacturing but across all sectors of our economy, including the public services. Whereas in high-tech sectors innovation often means new-to-the-world products based on scientific or technological breakthroughs, in service sectors innovation is often more about new processes, new ways of serving customers and clients, and new business models. In the title of our new report, we call this Hidden Innovation, because these types of innovation tend to be under-measured, underreported, and under-valued. This innovation tends to be based far less on research and far more on listening to customers; it’s less about technical knowledge and more about a willingness to think creatively, especially in organisational terms. Hidden Innovation takes an in-depth look at how innovation actually happens in six supposedly ‘low innovation’ sectors. In some sectors, such as financial services, there are high levels of (largely unmeasured) innovation. In others, including legal aid services, there are pockets of innovative practices (pun intended), but a general sense of an ‘innovation deficit’. There are real – which is to say understandable - reasons for this: the increasing pressure that legal aid professionals find themselves under in dealing with so many clients, especially those with multiple legal problems; the limited resources and support available for developing innovative approaches; and the whirlwind of ‘debate’ around the Government’s reform agenda for the sector. This debate has to some extent helped to obscure (and arguably, failed to draw sufficiently on) the innovative approaches that have been developed in the sector but which could benefit from being better recognised. Take Community Legal Aid Networks for example. Gateshead’s Community Legal Advice Centre – a one-stop shop for social

welfare legal aid services - is the first in a series of such networks planned nationally. Research shows that more than half of civil legal problems lead to other problems, such as ill health, unemployment and homelessness. By making it easy for people to access all the services they need – even those they quite often don’t realise they require - the aim is to help them resolve problems before crisis point. Hopefully, this will not only reduce personal problems but also alleviate subsequent costs to other public services. Another example of innovation is Liverpool’s award-winning Community Justice Centre, which stages ‘Meet the Judge’ sessions to engage with local people and identify those crimes most affecting quality of life. The Centre then works with residents and offenders to tackle the causes of crime, as well as the offending itself (for example, by involving other agencies such as housing and drug addiction counsellors to try to break a pattern of repeat offending). An innovative scheme in rural Wales allows legal practitioners to tap into more specialised resources via the internet, video conferencing and telephony. This not only makes it easier for people in a remote area to gain access to a range of expert advice, but also demonstrates that good quality support does not have to be expensive. Such innovation in services and in the way people can access help and advice might provide a new perspective to the Government’s reform agenda. The legal aid budget per head in the UK is ten times that of Germany and France. It must be legitimate then for the Government to seek to ensure that this significant public investment produces the best social outcomes, especially in improving access to legal advice and representation. As is well-known, the money available for civil and family legal advice services has actually been reduced – because more money has had to be diverted to the rising number of criminal cases coming to trial as a result of changes in the criminal justice system. Innovation is imperative then to maintain the current provision, let alone to engender improvements. No-one doubts that legal aid is a vital public service; what has been somewhat neglected is the fact that innovative approaches have the clear potential not only to improve access, but to save resources in other areas of the public sector. One area in particular that requires more investment is technology, especially information and communication technologies (ICT). Other areas of the public sector have

made significant investments in ICT (such as education and health). The Ministry of Justice could widen its support for legal practitioners to improve access for clients, using a variety of channels such as the internet and video conferencing (although high-quality face-toface advice will need to remain a primary mechanism for serving clients). This is not to suggest that Government has been inactive. There have been a range of Government-led innovations such as CLS Direct, Criminal Defence Service Direct, the National Mediation Helpline, Money Claims Online, and experiments in virtual pleas and directions. But whether the reform agenda has given sufficient visibility to innovation in ensuring the efficient use of resources and widening access to more open to question. The voluntary sector has also pioneered innovations. Citizens Advice Bureaux currently provide more than 2,000 outreach services in England and Wales, some in partnership with Health Authorities in GP surgeries. This type of provision has been shown to increase access to advice for people who would otherwise be effectively excluded because of age, poor health, poverty or lack of transport. While our research into innovation often shows that need or demand can act as a powerful factor in innovation (whether in private sectors or in public services), clearly, from the practitioner point of view, the current environment of uncertainty in legal aid services has not been helpful to considering innovation. Further, there is a certain Catch-22 quality to the response from some practitioners that legal aid pay levels are currently so low that law firms are unable to invest much in alternative delivery methods; there needs to be greater consideration as to how alternative delivery methods might allow practitioners to serve clients more effectively under existing levels of resourcing. A clearer signal could be sent by Government that it values – and that it expects – greater innovation in legal services, including a consideration of incentives for innovation by practitioners. The Government has stated explicitly that its reforms to procurement are intended to encourage not only greater efficiency but also greater innovation in the sector, but in effect innovation appears to have a comparatively low profile. It is noticeable that the sector lacks a single body with a mission to promote innovation, unlike some other public sector areas. One aspect of moving beyond the ‘science equals innovation’ position is that the promotion,


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diffusion and adoption of innovations becomes as important as the ‘invention’ of innovations, and it is here that there is a need for Government and public sector agencies in particular to play a championing and advocacy role (since individual businesses or practitioners rarely have the resources or incentives to do this on their own). Perhaps the underlying barrier here, bringing us full circle, is that there is a still a job of work to be done for these types of (nontraditional) innovation to be taken seriously – in some service sectors, the public services, and in Government policy generally. There can be an understandable wariness in Government about its responsibility for stimulating innovation. After all, innovation needs to come from practitioners, who are closer to the needs of their clients and customers than Government is able to be. Ultimately, government-sanctioned innovation is almost a contradiction in terms, given that innovation relies on developing a personal (or organisational-level) capacity for developing new approaches and putting them into practice. Yet other sectors show how government can play a useful role in promoting innovation without crowding-out this grassroots capacity. In construction, for example, the Constructing Excellence initiative has brought together major companies, clients, different parts of government and the research community to identify, develop and diffuse innovation. This has helped to improve the productivity and performance of the sector over the past ten years. Obviously, the specific mechanics of any improvement and innovation agenda in legal services would be somewhat different, but an industry-led but government-supported approach appears to offer the best approach to driving change across a sector.

NESTA is working with Government to develop the implications for policy of this broader innovation agenda, especially with the new Department for Innovation, Universities and Skills, and the Department for Business, Enterprise and Regulatory Reform. But more needs to be done across Government to increase the profile of innovation, not just as a business productivity issue but as a more profound and widely-ranging discussion about how public and private organisations better serve their customers. In our report we lay out a blueprint for government to facilitate this broader innovation agenda, including all government departments given a brief to be innovative themselves and to act to support innovation in the sectors for which they are responsible for policy. To view the report in full, visit w w w. n e s t a . o r g . u k / a s s e t s / p d f / h i d d e n _ innovation_report_NESTA.pdf

15


16

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Developing capable citizens: the role of Public Legal Education By John Seargeant, task force manager, Public Legal Education and Support (PLEAS) The legal system, legal problems and their consequences

T

he complexity of daily life requires an effective legal system and a population capable of making good use of that system. Capable citizens need to understand how the law affects them and be sufficiently knowledgeable, skilled and confident to take up issues, deal with the daily problems of life, and make best use of the opportunities and the protections offered by the legal system. But for the most part we fail in this task. The evidence is clear: most of us have little interest in things ‘legal’ until faced with a real problem. We do not understand the legal system, and do not use it to our benefit. Often when we do act, it is too late and not the right thing to do, so problems either remain unresolved, or worse still escalate and multiply. The problems of daily life - homelessness, relationship breakdown, debt, discrimination - are of course not new, but the frequency, complexity and ‘knock-on’ effects of these problems are now of a scale to cause concern. Recent research shows that around 1 million civil justice problems go unresolved every year: although one third of the population reports a civil justice problem, many people take no action to resolve it. It’s also clear that many people believe, wrongly, that there is nothing they can actually do and that there is no local legal advice provider who might help1.

The same research shows a cascade effect in which the emergence of a problem in one area leads to related problems appearing in other areas of life. One sixth of people with a legal problem also experience ill-health or lose their jobs; and in a small number of cases unresolved legal problems lead to violence or to people losing their home2. Perhaps understandably, these burdens fall more heavily on the socially excluded, who are less likely than the average citizen to take any action or seek help to resolve their problems. Health, disability, age, income and level of economic activity can all be linked to

the incidence of such law-related problems

crime and social problems aimed at schools.

Alongside the ‘cost’ to individuals we have an estimate from the Ministry of Justice’s economists that over a three to four year period the cost to individuals and the public purse of these unresolved problems was a staggering £13 billion3. A further complication lies in our failure to recognise the role of the ‘legal’ in a problem or a situation: this is rarely well understood. Despite the importance of the legal in, for example, relationship breakdown, illness, loss of a job, buying or renting property, or in debt problems, it is common for people to fail to identify how the law can be used. The legal may even be regarded as unhelpful or treated with suspicion.

Government concern about levels of indebtedness has led to funding for a diversity of support and training initiatives for people who are unable to avoid getting into debt. The creation of greater ‘financial capability’ among the population is a strategy led by the Financial Services Authority, with the support of the Treasury4. Financial capability training has at its core a raft of skills and knowledge that are in essence about legal matters, and perhaps understandably is typically provided by advice agencies, notably those concerned with debt advice.

It seems that public understanding of the legal system is influenced by the partial representations in the media. Understanding emphasises a few aspects of the criminal justice system: primarily the police, but also judges and juries in the criminal courts. Such misperceptions add to the difficulties of using the law, and contribute to the failure to deal effectively with problems.

The role of public legal education Public legal education is a deliberately broad term, defined most readily by its goals: • to provide people with awareness, knowledge and understanding of rights and legal issues, together with the confidence and skills needed to deal with the legal aspects of disputes more effectively • to help people recognise when they may need advice or support, what sorts of advice are available, and how to go about getting it • to help people better understand everyday life issues, make better decisions and anticipate and avoid problems There are many types of PLE, many different groups at which PLE is aimed, and many different specific goals. Most PLE initiatives are small-scale and local, although there are a number of larger themes in PLE: financial capability training; citizenship teaching in schools; and initiatives for the reduction of

Citizenship in schools includes developing understanding of the legal system in practice, and the Bar Council is a key partner in the National Mock Trials Competitions run each year by the Citizenship Foundation with the Bar Council (in Crown Courts), and with the Magistrates Association (in Magistrates Courts) with support from the Ministry of Justice. In these mock trials, the young people involved play all the roles in specially prepared cases in front of qualified judges and Magistrates, with the aim of giving an insight into the legal system and the people who work in it. The Bar Council also sponsors Speakers in Schools, the aim of which is to enhance awareness of the role and training path of barristers within schools and sixth form colleges. Training sessions for people in debt are very different from mock trials, illustrating the wide spectrum of activities that is used to deliver PLE. The Task force found examples of PLE using campaign methods, leaflets or self-help packs, classroom teaching, training, theatre, TV, mentoring, websites and many other activities. Current or recent examples include: • Dealing with Your Debts: a selfhelp pack offered by National Debtline (NDL) as an integral part of its advice and support services on debt. • Advice Services Alliance’s Living Together Campaign: provided through the Advicenow website, the campaign targets myth of ‘common law’ marriage and offers guidance and raises awareness of what cohabiting couples to protect themselves


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• Karz Ki Baatein (Let’s talk about debt); a TV programme dealing with debt issues broadcast by MATV, a local community television channel in Leicester. The programmes were a series of live halfhour phone-in chat shows on debt aimed at Asian audiences in the Leicester area. Each programme was broadcast live on a Monday night, and then repeated three times during the following week. • Southwark Preventing Possessions Project: run jointly by Southwark Law Centre and Blackfriars Advice Centre (both in South London), with the goal of reducing the number of evictions of council tenants in Southwark due to rent arrears, through early intervention, training of community groups, and better access to advice and support • Streetlaw ‘Plus’: a programme created by The College of Law in partnership with New Deal for Communities initiatives in Doncaster (Yorkshire) and Clapham Park (Lambeth, London). In consultation with community groups (tenants’ and residents’ associations, churches, schools and others) a series of interactive presentations and workshops has been designed to deal with everyday local problems such as anti-social behaviour, poor housing conditions, youth unemployment and dispute resolution

• ‘Information Matters’: run by Shelter Cymru and partners - a three-year project which sought to develop the ability of community groups to offer initial helps and possibly referral to people living in the Neath Port Talbot area in South Wales who had social welfare-type problems but did not use traditional advice services. • the People’s Law School (PLS) of British Columbia (BC), Canada, has been educating people – especially those with particular legal needs – about the law, through speakers, training workshops, publications, theatre, and special events, with the goal of helping people throughout BC gain a better understanding of their rights and responsibilities. • Too much punch for Judy: a Theatre in Education drama aimed at school children about the dangers of drink driving. Following the play, the children take part in workshop discussions about the issues raised What unites all of these initiatives is the care and precision with which they are designed. Good PLE mirrors the practices of the commercial world in putting a lot of effort into understanding ‘customers’. Just as advertisers profile their target markets, so successful PLE initiatives have well-specified audiences,

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groups of users, or participants – from a small local group to a broad category of people or indeed the whole of society. Good PLE initiatives are clear and precise about what they are aiming to achieve, tailoring goals to the circumstances, capacities and needs of specific users. PLE goals may vary from the very general, for example – awareness-raising, to the highly specific – such as equipping users to carry out specific actions to solve a particular problem.

The wider benefits of public legal education It is now clear from the most recent research 5 that ‘legally enabled’ or ‘capable’ citizens are better equipped to take the sort of preventive action that avoids escalation and crises: • there is a strong association between knowledge of rights and processes and success in dealing with legal problems • lack of knowledge and awareness links strongly to negative consequences • people who lack knowledge are much less likely to achieve their objectives in dealing with a legal problem.


NEWS ROUND UP

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NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Liberty calls forNEWS investigation into ill-treatment of asylum NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS detainees NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS • While Harmondsworth detention centre burned, vulnerable detainees inside were imprisoned in overcrowded, flooded cells and denied NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS food and water, Liberty revealed today in an unprecedented legal challenge. The rights group told the High Court that the Home Office’s failure NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS to bring a public inquiry into the ill-treatment of detainees during a disturbance in the centre last year is illegal. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS • Liberty’s Legal Officer Alex Gask, who brought the legal challenge, said: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS “It is difficult to determine which is more shameful - that already poorly treated and vulnerable detainees were brutally humiliated for two days NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS or that the Home Office refuses to adequately investigate what happened. The Government must establish what led non-criminal detainees to be NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS locked in overcrowded rooms and denied water and toilets while the centre was on fire.” NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Liberty is acting on behalf of individuals whose evidence about their treatment during the Harmondsworth disturbance includes being denied NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS food and water for up to 40 hours; being locked in overcrowded, pitch-black rooms flooded with water for more than 24 hours; being forced to NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS urinate and defecate in front of each other; and being strip searched in front of several officers. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS One detainee told how he was taken to the centre's medical clinic suffering from a bad back. 'They just abandoned me,' the man said. 'There was NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS no doctor and, when I asked where the doctor was, the detention officers laughed at me ... One of them stepped on the hem of my trousers to NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS make me fall over. He then started laughing and called me a "fucking negro".' NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The disturbance in November 2006 allegedly began when detainees were not allowed to watch news coverage of a damning report on conditions NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS in the centre by the HM Chief Inspector of Prisons (HMIP). Several detainees challenged the prison guards and damaged property, forcing the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS centre to be temporarily locked down. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Liberty is also challenging the Home Office and Kalyx Ltd (the contractor running the centre) over the appalling conditions of detention prior to NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the disturbance taking place. Evidence from the individuals about the conditions in Harmondsworth substantiate the HMIP report, including: • an NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS individual with HIV/AIDs being “outed” by prison officials and subsequently abused by other detainees • an individual with diabetes being denied NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS insulin treatment • an individual with a visible skin disease bullied by prison officials • arbitrary solitary confinement • no effective complaints NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS procedure • guards using racist taunts and beating detainees without provocation • detainees beaten by guards for such behaviour as requesting NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the faxes sent them by their lawyers. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Law Society secures courtNEWS win on legal 'GlassNEWS Ceiling’ ForNEWS ILEXNEWS NEWS NEWS NEWS NEWSBreakthrough NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS aid NEWS NEWS NEWS NEWS NEWS NEWS NEWS Members NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWS NEWS NEWS NEWS NEWS NEWS The Law Society's challenge of NEWS the Legal Services Commission The ‘glass ceiling’ thatNEWS prevented some categories lawyersNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS (LSC) was upheld when judgment was handed down by Mr NEWS Justice from becoming DistrictNEWS Judges, Deputy District Judges andNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS BeatsonNEWS in the High Court. Tribunal NEWS Chairmen will NEWS finally be shattered as the newNEWS TribunalNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSPublic NEWS NEWS The judge saidNEWS that the LSC has breached Contracts Courts and Enforcement Act comes intoNEWS force later in NEWS the year.NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSLaw NEWS NEWS NEWS Regulations 2006 and European in itsNEWS reform of legal aid. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Most significantly, the judge said that changes to the contract Part II ofNEWS the Act,NEWS which was introduced into parliament following theNEWS NEWS NEWS NEWS NEWSand NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS should not be made if they would, 'alter the economic balance of Queen’s NEWS speech last November received Royal NEWS Assent at the endNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWS NEWS the contract to the disadvantage those who have NEWS entered into the of July, aims to open up the eligibility and NEWS application criteria for theNEWS NEWS NEWS NEWS NEWS NEWS NEWSanNEWS NEWS NEWSofNEWS Unified NEWS ContractNEWS or to theNEWS disadvantage some ofNEWS them.' NEWS judiciaryNEWS to a wider poolNEWS of talented lawyers. ThisNEWS Act provides NEWS NEWS NEWSthe NEWS NEWS NEWS attributed NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The judge alsoNEWS noted that anyNEWS proposed changes should be excellentNEWS opportunity to reduce perceived exclusivity NEWS NEWS NEWS and NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS restricted to those envisaged by NEWS the initial White NEWS Paper. ItNEWS is not to judicial appointments, will help to build public confidence thatNEWS NEWS NEWS NEWSunderstand NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS on NEWS clear atNEWS this stage how this will affect the NEWS LSC's proposals fees judicial panels and are representative of today’s society.NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS and theNEWS Judge has granted the Law Society permission to NEWS appeal NEWS NEWS NEWS will NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS on the basis of public interest on this point.NEWS Dexter NEWS Montague were In particular, the changes encourage applications from women andNEWS NEWS NEWS NEWS NEWS NEWS NEWSthat NEWS NEWS NEWS NEWS in NEWS NEWS NEWS NEWS NEWS NEWS also successful allied proceedings. ethnic minorities, giving them confidence they will be assessed andNEWS NEWS NEWS NEWS NEWS NEWSlawyers, NEWSrather NEWS NEWS NEWS NEWSAndrew NEWS NEWS NEWS NEWS NEWS Law Society president Holroyd said: rated on NEWS their ability and merit as qualified than on theirNEWS NEWS NEWS NEWS NEWS NEWS NEWSunderlines NEWS NEWS NEWS NEWS NEWS 'This judgment the shortcomings of the NEWS LSC's approach job title or route toNEWS qualification. TheNEWS InstituteNEWS of LegalNEWS Executives (ILEX),NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWS NEWS NEWS NEWS to the reforms the legal aid system. The award NEWS of 75% of costs whose members will nowNEWS be eligible to apply, believes judges shouldNEWS NEWS NEWS NEWSonNEWS NEWS NEWS NEWS NEWS NEWS vindication NEWS NEWS NEWSThe NEWS is a significant of theNEWS actions NEWS we are taking. Law continueNEWS to be appointed merit and that the judiciary can only benefitNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS to NEWS NEWS NEWS NEWS Society NEWS is not opposed reform of legal aid but ratherNEWS to the by havingNEWS suitablyNEWS qualified peopleNEWS from a NEWS more diverse background. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS way it has been NEWS introduced by theNEWS LSC. It is a shame that we have NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS had to resort to NEWS the courts to address this. We hope that the LSC “Continuing to restrict judicial appointments to Solicitors and Barristers NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS and government will now work with us to secureNEWS a sustainable would have riskedNEWS judges continuing to be drawn from the ranks of theNEWS NEWS NEWS NEWS NEWSwho NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSsupplier NEWS base NEWS future for accessNEWS to justice through an extensive of ‘white public schoolboys’ currently dominate the NEWS list of judges,” saidNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS dedicated professionals.' ILEX Chief Executive, Diane Burleigh. ”The NEWS previousNEWS limit onNEWS eligibilityNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS risked restricting the recruitment of the best candidate forNEWS the role,NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS was NEWS NEWS NEWS NEWS NEWSreview NEWS NEWS NEWS NEWS The LawNEWS SocietyNEWS issued judicial proceedings on 20 April in and this practice not in the public’s bestNEWS interest.NEWS The changes thisNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSCommission's NEWS NEWS NEWS relationNEWS to the Legal Services rightNEWS to unilaterally Act will bring about have NEWS been a long timeNEWS comingNEWS and areNEWS overdue.NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS amend NEWS the Unified Contract in the interests of itsNEWS members and NEWS NEWS NEWS NEWS NEWS NEWS NEWSwho NEWS NEWS affected NEWS NEWS those they represent haveNEWS been severely by the “We fullyNEWS supportNEWS the Government’s strategic goal ofNEWS ensuring greaterNEWS NEWS NEWS NEWS NEWS NEWS NEWStheNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS decisions and timing of their implementation. diversity NEWS within the judiciary so NEWS that it better reflects diverseNEWS NEWS NEWS NEWS NEWSit NEWS NEWS NEWS vigorously NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The result is that a declaration has been madeNEWS as follows: 'A nature of the society serves. NEWS We have campaigned NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS declaration thatNEWS the rights of the LSC NEWS to amend the NEWS Unified for our members to compete on NEWS an equalNEWS footingNEWS alongside othersNEWS NEWS NEWS NEWS NEWS NEWS NEWStoNEWS NEWS NEWS NEWS NEWS NEWS13.1 NEWS NEWS NEWS NEWS ContractNEWS referred to in clause of that contract (other than and to be considered on NEWS merit for appointment these important NEWS NEWS NEWS NEWS news NEWSforNEWS NEWS NEWS NEWS NEWS NEWS under NEWSclause NEWS NEWS NEWS NEWS amendments permitted 13.2) are incompatible with positions. Not only is NEWS this excellent our members, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS regulations 9(2),NEWS 9(4) andNEWS 9(7) of the Public Contracts Regulations more importantly it is NEWS excellent news NEWS for theNEWS justiceNEWS system.NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSspecifications NEWS NEWS 2006 in NEWS so far asNEWS they areNEWS applicable to technical (as NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS defined NEWS in regulation 9(1)NEWS of thoseNEWS Regulations).' “I am sure that NEWS public confidence in the NEWS system NEWS will be enhanced NEWS NEWSbarriers NEWStoNEWS NEWSare NEWS NEWS NEWS NEWS NEWS should NEWScontact NEWSthe NEWS For more press NEWS information, journalists Law now thatNEWS the artificial appointment removed,” sheNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Society NEWS press office on 020 7320 5764. continued


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NEWS ROUND UP

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS New NEWS Criminal Chairman calls for Review theNEWS Treatment of Young People inNEWS the NEWS NEWSBar NEWS NEWS NEWS NEWS NEWS NEWS of NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Criminal Justice System NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Sally O'Neill QC, who starts work as Chairman of the Criminal Bar Association on 3 September 2007, has calledNEWS for a wide-ranging reviewNEWS of the NEWS NEWS NEWS treatment of young peopleNEWS caught NEWS up in theNEWS criminalNEWS justice NEWS system. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS SpeakingNEWS as she took on her year-long roleNEWS as headNEWS of 4,000NEWS prosecution andNEWS defence NEWS barristers in England andNEWS Wales, she said:NEWS NEWS NEWS NEWS NEWS public NEWS NEWSover NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS ‘At a time of heightened concern youth NEWS crime, we need to look again at the way in which the system treatsNEWS witnesses, victims and NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS defendants, an increasing numberNEWS of whom are notNEWS even teenagers. ‘At just 10, we already have a veryNEWS low ageNEWS of criminal responsibility in this NEWS NEWS NEWS NEWS NEWS NEWSis NEWS NEWS NEWS NEWS NEWS NEWS NEWS country. NEWS What flows from NEWS arrest, interview and the NEWS trial process, however, often poorly adapted to the immaturity of those very young NEWS people NEWS NEWS NEWS NEWSused NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS caught up in the NEWS system. NEWS ‘The special measures to secure the NEWS best evidence from youngNEWS witnesses and to protectNEWS them before, after and NEWS NEWS NEWS NEWS NEWSthe NEWS NEWS NEWSare NEWS NEWS NEWS although NEWS NEWS during the trial itself, haveNEWS improved considerably way inNEWS which young witnesses treatedNEWS during the trial process, there is NEWS always NEWS NEWS‘The NEWS NEWS NEWS NEWSfor NEWS NEWS NEWS NEWSoutside NEWStheNEWS room forNEWS improvement. sameNEWS facilitiesNEWS have only recently been NEWS made available young NEWS defendants and their treatment court NEWS NEWS NEWS NEWS NEWS NEWSforNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS process itself is markedly differentNEWS from young witnesses the prosecution. NEWS NEWS NEWS NEWS NEWS NEWS NEWSnot NEWS NEWS NEWS NEWS NEWS NEWS She wentNEWS on: ‘It is important to remember that, asNEWS with adult defendants, all those charged with aNEWS criminal offenceNEWS are guilty. For obvious NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS reasons,NEWS these young people are often veryNEWS vulnerable, whatever we NEWS may think of the NEWS alleged offence. NEWS NEWSofNEWS NEWSsuch NEWS NEWS NEWS NEWS NEWSasNEWS NEWS NEWS NEWS NEWS NEWS ‘The use,NEWS for example, Crown Courts as the Old Bailey to try defendants young as 10 seems to me to beNEWS both inappropriate and NEWS NEWS NEWS NEWS NEWSatNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS outmoded. Policy-makers need toNEWS look carefully how the systemNEWS as a whole, run as it isNEWS by adults, treats children and young people on NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS whichever side ofNEWS the law NEWS they findNEWS themselves.’ NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Sally O'Neill QC, of Furnival Chambers, formally took over from AndyNEWS Hall QCNEWS on the 1NEWS September 2007. NEWS NEWS NEWS NEWS NEWS NEWSsaid: NEWS NEWS NEWS NEWSinNEWS NEWSofNEWS NEWSBar, NEWS NEWS Commenting on NEWS her election as Chairman, Sally O’Neill ‘Andy has worked tirelessly the interests the Criminal at a time of NEWS NEWS NEWSHeNEWS NEWS NEWSofNEWS NEWSconcerns NEWS in NEWS NEWS NEWS NEWS NEWS considerable pressure. has raised the profile our members’ the media and NEWS with the NEWS Government. ‘WeNEWS have been increasingly NEWS NEWS NEWS NEWS NEWSelement NEWS in NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS concerned at theNEWS constant erosion of theNEWS discretionary sentencing and the imposition of longer sentences of NEWS imprisonment, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSincluding NEWS NEWS NEWS NEWS NEWS particularly IPP (imprisonment forNEWS public protection) which has resulted in many defendants young ones receiving whatNEWS is effectively a NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS life sentence in aNEWS wide range of cases. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS ‘The overcrowding in our NEWS prisons is well-known andNEWS we are NEWS determined to doNEWS all thatNEWS we can to try to help re-structure sentencing policyNEWS to try NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS and achieve a more just and effective regime. NEWS NEWS NEWS our NEWS NEWS NEWS NEWS the NEWS NEWS NEWS NEWSand NEWS NEWSCriminal NEWS ‘I also intend to maintain Association’s focus onNEWS communicating publicNEWS interestNEWS in the maintenance of a strong independent NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Bar. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS ‘A strongNEWS Bar, with diverseNEWS and talented practitioners, will not only best serve NEWS the public interest today but will also inform the pool of candidates NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS from which futureNEWS members of ourNEWS judiciary are chosen. NEWS NEWS NEWS NEWS NEWS works NEWS NEWS NEWS– NEWS NEWS– continues NEWS NEWS NEWS ‘Ultimately, the Criminal Bar Association to NEWS ensure that the public through NEWS the workNEWS of the courts to receive high NEWS quality NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS service from the Criminal Bar, at all levelsNEWS and fromNEWS both prosecution and defence practitioners. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS ‘We welcome competition from other advocates butNEWS are determined to ensureNEWS that society receives theNEWS same high standards of professionalism NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS and expertise whoever is NEWS prosecuting or defending a criminal case, NEWS particularly complex ones,NEWS to ensure that the right NEWS people are charged and NEWS NEWS NEWS NEWSappropriately NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS prosecuted and are themselves represented. NEWS NEWStoNEWS NEWS NEWS NEWS NEWS NEWS and NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSbut NEWS ‘It is important maintain equality of arms between prosecution defence which requires not only the right calibre of advocate also NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWScourts, NEWSand NEWS NEWS remuneration at aNEWS fair andNEWS appropriate level. Poor pay will drive the most ableNEWS away from the criminal that would not NEWS be in theNEWS public NEWS interest.’NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS which NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS She added: ‘Cost-cutting results in aNEWS failure to prosecute or defend properly andNEWS effectively is unacceptable both toNEWS the public at large and NEWS NEWS NEWS with NEWS NEWS NEWS NEWSparticularly NEWS NEWS NEWS NEWS NEWS NEWS NEWS to those NEWS who are NEWS more directly concerned the criminal justice system, victimsNEWS of crime and their families and defendants.’ NEWS NEWS NEWS NEWS as NEWS NEWS NEWScomponent NEWS NEWS NEWSjustice NEWS NEWS NEWS NEWS ‘Finally, we want NEWS to ensureNEWS that theNEWS resourcing of advocacy, a distinct and critical of the criminal system, is ring-fenced and NEWS NEWS NEWS NEWS NEWS stake.’ NEWS NEWS NEWS NEWS targeted NEWS directly at those NEWS with the NEWS skills to NEWS present NEWS complex NEWS trials, inNEWS which society at NEWS large has a considerable NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The International Bar Association's 60th New editor for Law Society Gazette NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS anniversary – aNEWS history to NEWS be proud NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS On Friday 31 August 2007NEWS Des Hudson, Law Society Chief Executive, NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS announced the appointment of the new editor-in-chief the LawNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS From itsNEWS inception in 1947, the International Bar Association (IBA) NEWS NEWS the NEWS NEWS NEWS NEWS NEWSforNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Society Gazette, mostNEWS widely read news magazine in Europe has grown in stature throughout the international legal community NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the legalNEWS profession. and continues to provide a forum for practising lawyers throughout NEWS NEWSjoins NEWS NEWShaving NEWSgained NEWS NEWS NEWS Paul Rogerson the Gazette wide experience as aNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the world as wellNEWS as being a source of information and assistance. NEWS NEWS NEWSpublishing NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS journalistNEWS in bothNEWS business-to-business and newspapers. The IBANEWS continues to emphasise the importance of establishing NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS He is currently the London-based City editor of The Herald, Scotland's and maintaining the ruleNEWS of law NEWS as the basis of NEWS democracy and NEWS NEWS NEWS NEWS NEWS NEWS NEWSknowledge NEWS NEWS NEWS NEWS NEWS NEWS NEWS leading quality national daily newspaper. Paul has extensive supports the fundamental role of an independent judiciary and NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS of professional services, having edited trade titles in the sector and a legal profession in upholding principles. IBA proudly NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSthese NEWS NEWSThe NEWS NEWS weekly legal section for The Herald. works with bar associations, lawNEWS societiesNEWS and individual lawyers NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Des Hudson, Law Society Chief Executive, says: “Paul brings with across the globe to provide an international setting for debate, NEWS NEWS NEWS NEWS NEWS NEWSwill NEWS him a mass of journalistic experience. HisNEWS appointment help toNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS discussion and action. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS deliver services to our members more efficiently, and is central to the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS sharper NEWS focus onNEWS supporting solicitors.” NEWS NEWSofNEWS NEWSand NEWS NEWSteams NEWS Paul willNEWS take charge the editorial production thatNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS produce NEWS comprehensive coverageNEWS of all NEWS areas ofNEWS the lawNEWS both atNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWStheNEWS home and abroad. From high street to CityNEWS boardrooms, GazetteNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS reports and analyses all the NEWS issues NEWS affectingNEWS lawyers. NEWS NEWS It is also theNEWS premier Enter Cavanagh’s prize draw for the chance to win a pair of return tickets NEWS NEWS NEWS source and market leader from London to New York on the new luxury business class carrier NEWS NEWS NEWS for recruitment and other Silverjet. To enter go to the Solicitors & Barristers page at NEWS NEWS NEWS advertising aimed at the www.cavanagh.co.uk or come and see us at the Bar Conference.


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Earlier settlement of disputes, especially before formal stages p.17 are reached, is less consuming of resources overall. With the help of good PLE people can develop a better sense that the law can treat people fairly, and will also recognise when it does not. Perceptions of fairness and equal treatment can help build community cohesion and mutual trust between groups, and reduce social exclusion. The wider social benefits of good PLE are illustrated by the varied ways in which PLE can support government goals. The access to justice goals of the Ministry of justice, of the legal and education professions, and of the not-for-profit advice sector can all benefit from PLE. PLE supports the Department of Communities and Local Government goal of reducing social exclusion and increasing community capacity to make decisions. PLE benefits the Department of Trade and Industry commitment to work with vulnerable employees, and the focus of the Social Exclusion Task Force on rights, responsibilities and empowerment. PLE will be crucial in the new CEHR's drive for equality and human rights.

The need for strategic growth in PLE But PLE faces real challenges: it currently lacks a coherent identity, and is a still marginal activity for most of its providers. PLE providers act independently with little awareness of what others are doing. PLE lacks the structures and tools that would facilitate its development. There has been very little evaluation of PLE, and little development of ‘good practice’ or of quality frameworks. As a result it is difficult to demonstrate the impact of PLE. PLE also has a very common weakness: PLE initiatives are short-term funded - projects come and go and with no mechanism for sharing or linking between them, their knowledge and ‘lessons’ are easily lost, or perhaps never learned. PLE needs to develop and grow dramatically both to overcome these obstacles and to achieve its potential. A strategy for PLE development will include the following tasks: • •

Creation of a coherent focus and identity for PLE Creation of a practitioner network and an online knowledge bank for use by all stakeholders, including funders and local deliverers. Development and spread of good

• •

practice: evaluation and quality frameworks through PLE pilot projects and research Securing sustainable funding Working to establish a statutory remit for the development of PLE

Guiding this strategy are three principles: participation of stakeholders; independence of operation; a clear focus on developing legal capability. Together these principles will ensure that the strategy is implemented as effectively as possible.

An independent PLE Centre The diversity of PLE providers and audiences and the need to secure stakeholder support points towards the creation of a new agency as the best way forward. The Task Force recommends that a new and independent PLE Centre be formed as a high-level strategic body, to focus solely on the implementation of the PLE strategy. The Bar Council is one of the key stakeholders who have already pledged support for the creation of a PLE Centre, and in the coming months members of the PLEAs Task Force and others will be making the case for the Centre as widely as possible. Government involvement at the heart of PLE is essential to its success. Experience within government show the value of a statutory power and of a key organising role for government, and the optimal solution is the creation of a new agency or PLE Centre with statutory powers. This will take time, and in the interim the Task Force has recommended the immediate establishment of a not-forprofit company to take PLE forward in the first year or perhaps two years. Whatever its eventual form, the PLE Centre must be a small ‘can-do’ body that makes its mark from day one by taking the lead in all the key tasks of the strategy. Branding PLE, getting the message out, creating the essential resource networks, and bringing the key partners together must all begin immediately. Researching with partners the most needed PLE pilots and getting these under way quickly will make PLE more concrete and secure real early gains in outcomes and quality frameworks. Dynamic leadership of this kind requires stable funding. The Task Force believes that the Centre must be funded for at least its first five years by central government, with first year funding in the region of

£1.5 million. Strategic investment now will reap big dividends in making a success of PLE, producing more capable citizens and increasing access to justice.

NOTE The Public Legal Education and Support (PLEAS) Task Force was established by the Department for Constitutional Affairs (DCA, now the Ministry of Justice [MoJ]), in January 2006. Chaired by Professor Dame Hazel Genn DBE QC, PLEAS was an independent body supported by MoJ, set up to make recommendations on how to improve the scope and effectiveness of public legal education (PLE). Task Force members were drawn from government, legal and advice services, and the education and independent sectors. The Bar Council was represented on the Task Force. A full list of Task Force members, and all key Task Force papers, can be found on the PLEAS website at www.pleas.org.uk.. The PLEAS Task Force published its report Developing Capable Citizens: the role of Public Legal Education - in July 2007. The full report is available for download on the PLEAS website at www.pleas.org.uk. 1Causes of Action: Civil Law and Social Justice, Second Edition, LSRC Research Paper No. 14, Pascoe Pleasance et al, 2006. Norwich: The Stationery Office. 2Mounting Problems: Further Evidence of the Social, Economic and Health Consequences of Civil Justice Problems. Pascoe Pleasence, Nigel J. Balmer, Alexy Buck, Marisol Smith & Ash Patel (2007), in Pascoe Pleasence, Alexy Buck & Nigel Balmer (eds) Transforming Lives: Law and Social Process, Norwich: TSO. 3Causes of Action 4Building Financial Capability in the UK, FSA 2004. http://www.fsa.gov.uk/pubs/other/financial_capability_uk.pdf FSA Newsletter, April 2007. http://www.fsa.gov.uk/financial_capability/ pdf/newsletter8.pdf 5Education Implications from the English and Welsh Civil and Social Justice Survey, Alexy Buck, Pascoe Pleasence, Nigel J. Balmer, LSRC April 2007.


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The Bill sets out a number The Bar Council of key features legal system, is of the to be which must an approved be upheld under new regime. the regulator These include and has supporting the of law, improving rule already access to justice, taken action promoting the protecting and interests of consumers to separate these competition , promoting and promoting functions. The adherence to professional Bar the Standards principles. These principles include Board independence and integrity, was established the duty to act best interests at RUTH EVANS in the the of clients beginning of Bar Standards Chair of the are crucial principles and confidentiality. These Board. this year to for any legal take over the system. Council’s regulatory work. The membershi If implemente p was appointed d, the Bill will Nolan principles I]Z egdheZXiServices d[ \^k^c\ Zk^YZcXZ 6ai]dj\] gVgZan ZmegZhhZY on establish and has no a Legal the Board to oversee connection with representative the work of “approved side. The Board’s ldgg^Zh bdhi ZmeZgi l^icZhhZh Y^gZXian! ]VkZ the ZmeZgi regulators” to actl^icZhhZh remit is in the public (called “Front Regulators” interest. The Line to be by Clementi). Council is congratulat VcY^i^hcdldcYZg#>ci]ZXVhZ Zc_dnZY i]Z ed hVbZ These ValVnh regulators must on setting us approved so quickly. ensure up d[ E]^aa^eh k HnbZh :L=8 '((% that their regulatory ^bbjc^in will [dg hj^i This Vh will di]Zg ensure that we be running with full 8]P'%%)Ri]ZXdjgigjaZYi]Vi l^icZhhZh#I]Z^bbjc^in^hcdieffectiveness p.6

22

pro

Criminal Justic e: Another Major Overhaul

law

CURIOUS TIMES 8 JUSTICE FOR CRIMINAL What is going on? of rapidly falling Why, during a period is criminal justice official crime levels almost permanent apparently mired in right about criminal crisis? Are ministers justice failure? what are the implications? If so, By Richard Garside, Acting Centre for Crime Director, and Justice King's College Studies,

12 THINKING ACROSS THE DIVIDE Lord Carter’s report heralds a revolution in the way legal procured. Solicitors aid services are each been looking and barristers have themselves, but at the implications for to little consideration date there has been of the impact relationship between on the of the legal profession.the two branches By Richard Miller, director, LAPG

14

PUNISHMENT, PENANCE AND i]ZgZ id egdiZXi i]Z ZmeZgi Wji IMPACT: THE VAGARIES OF On 20th July, SENTENCING ^h id ZchjgZ i]Z ÆegdeZg VcY POLICY. John Reid, of bulk the latest reorganisation, processing centres Sentencing has hbddi]VYb^c^higVi^dcd[_jhi^XZ or parental never been so for minor offenders; a media issue popular the criminal compensation system ‘in favour as during the justice orders for those of 2006. What summer has not surfaced with reasoned discussion is a under who commit criminal damage; The of sentencing principles and penal policies. custody of serious speeding up the return five key priorities: to offenders who the public from conditions By Professor breach the violent crime; Christine Piper, and communitie putting community of their licence; and of Social Sciences School s first; building extending confidence in service. and Law, Brunel University public sentencing; a tighter grip offenders; and on all The simple, speedy, document itself summary justice. contains no references to The document, the word ‘tough’ less than 34 which is over This or ‘tougher’. contrasts markedly contains 24 40 pages long, new proposals. to just one to causes of reference This is just short of the crime, and three Hilary record set by that is a reference Armstrong’s Michael the mid-90s, p.20 UK Governmen to responsibility when he announced Howard, in Exclusion for the Social Unit and the of the system. to open up legalt urges South Africa a rebalancing need for liaison. services market More reform The main p.21 LAPG launches points in the paper additional 8,000 Carter discussion forum new prison places; include an This is the decisions by third major unanimous the Parole Board attempt by New to reform the Labour are released; before prisoners criminal justice that Parole Board system. The attempt was have experience members should first in 1997, with Editor: Nigel of Simmonds the publication the Crime and third-off discounts being a victim; no automatic 0870 766 2715 of Disorder Act, introduced ASBOs, which email: info@barrister automatic release for guilty pleas; the end parenting orders, magazine.com to extended at the half-way curfews, sex Publishers: Media sentenced to point on those offender orders, four years or Management drug treatment more; the introductio Corporation Ltd Publishing orders Director: Derek and the setn up of the p.30 Payne youth justice Design and Production: system. It Alan Pritchard Cambridge

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READING

TERM ISSUE

FOR BARRIST October 2nd ERS - Decemb er 21st 2006

Services Bill carries forward of the recommend most ations of Sir David Review of the Regulatory Framework Clementi’s Services. Its for Legal aim is to put consumers of services at the legal heart of regulation.

39

ore fits bef

ESSENTI AL

MICHAELMAS

The Legal Servic es Bill: The Bar Stand ards Board Persp The Draft Legal ective

report and

Comm fails fully, address a Law increases , to In 1999, es systemy suggest, these two ended damag to the if the judiciar recomm of Lord 2006 entitle ements then s and improv a paper draws either l principles. fairer, d that In April al Affair centra paper and indicatemake awardsthe last seven ton, issued Constitution not the . For of Thoro ently”. The policies with would first t’s ent should has ignored is not Falconer me them parliam ment Law Differ the to put Governmen Let this simply Govern “Doing of the ns and years arise and seeks document endatio er many recomm e. summ es which the togeth legal system work. The nt, of chang to the chang preside s good enough n, ent frame in favour regard advocates. some Langto Lawyer of ent a coher paper involves areas argum Richard Personal Injury within By ore an document also The main already tion of age, thus: QC, is theref are Associa the langu MAN of reform (APIL) n. They EN HOCK Incidentally, in the use but the man well know ending STEPH RENEWED done; innovations il Chair the to be e. We NS FACE S the Bar Counc include needs PRISO to chang role of do law DING CRISI “The law law needs a new of the me ellor CROW do need to ry and Chanc prison but we Secreta of a Supre way we Lord Home into the do law, of the ishment they the paper As a new team inquire need to as Head and the establ om. 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22

the barrister

From the Commons to the Bar: A Guide to Working as a Parliamentary Researcher By Sunil Tailor, Parliamentary Researcher to Richard Spring MP

Go and do something useful

Therefore I had the guidance, the logic and

Members of Parliament, the secretaries who

outside

few

the time, but what constituted “something

work for them and the specialists who staff

years

the and

law then

for

a

back

useful”? What didn’t constitute it had been

the House of Commons Library, there has

and give it a shot” a worldly

come

made abundantly clear to me, but that still

grown a new species within Westminster: the

wise barrister told me, a fresh

left pretty wide choice of how to fill any pre-

Parliamentary Researcher. Up until recently,

faced law undergraduate, over

BVC years.

there was little provision for MPs to staff their

a drink when I asked him about pursuing

offices with more than a basic complement

a successful career at the Bar. I must have

In the end, the choice wasn’t as difficult as it

of staff. However, in the past five years the

appeared rather pleased with his advice,

seemed as I chose to follow a path that would

staffing allowance has been increased and

for casting a somewhat sceptical eye over

complement a career at the Bar but which

MPs are now able to employ at least one

me, he added with a wry grin, “obviously

was sufficiently distinct to give me a different

dedicated researcher to help them with all

that doesn’t mean go bumming around on

kind of experience – I chose to spend time

aspects of their parliamentary work.

beaches in Thailand!” Clearly some Gap Year

working in Parliament.

International brochures had inadvertently

There are no formal procedures for entry

slipped between his briefs, but I took the

In many ways it was a natural choice as

as in the civil service or corporate graduate

point well enough.

there has always been a natural overlap

schemes, mainly because each individual MP

between the House of Commons and the Bar.

is a corporation in themselves and as long as

It was also reinforced through conversations

Traditionally the courtroom was seen as an

they comply with the minimum regulations set

I subsequently had with other barristers

ideal sphere for a person to hone and polish

out according to pay and conditions they are

during my time studying at King’s College,

the rhetorical skills that they would hope to

able to hire a member of staff in whichever

London who seemed to feel that a conveyor-

display on the green benches later in life.

way they choose.

generation of barristers coming to the Bar

Figures such as the legendary F E Smith,

However, the most common entrance these

who saw the profession through the narrow

later Lord Birkenhead, felt that their natural

days is through the dedicated website

prism of a law degree, immediately followed

intellectual abilities combined with shrewd

Working for an MP (www.w4mp.org) which

by the BVC, then a pupillage, topped of with a

judgement and a rapier wit were considerably

lists job vacancies for MPs with suitable

tenancy. Theoretically, at the ripe old age of 23

sharpened in crossing swords with hostile

vacancies. However, you will need to decide

an able person could legitimately call himself

witnesses and all too often with judges. In

your party allegiance and stick to it, for while

a practising barrister but with little real idea

Birkenhead’s case, the law was a prelude to a

the occasional MP won’t mind that you have

of how the Bar fitted in with the world outside

glittering career in politics which almost led

done work for other parties, the overwhelming

the cloistered walls of the Temple.

to the summit of becoming Prime Minister.

majority will expect you to have shown some

I must admit that this logic appealed to me

A century later, the same tried and tested

benefits them as they feel they can be open

greatly as my view of the law as practiced

route is apparent. The list of current MPs,

and honest in conversations with you about

by barristers was of men and women

ministers and a recently departed Prime

political matters knowing they can trust you,

of

occasional

Minister, who all practiced as barristers,

it also makes the work of a researcher much

eccentricity working at building up their own

seems endless and includes: Sir Menzies

easier if you actually believe in the cause

practice within the collegiate atmosphere of

Campbell QC, current leader of the Liberal

you are helping to promote. Hence you can

chambers drawing on experiences outside

Democrats; Jack Straw, Secretary of State for

use the website to narrow the available jobs

the law as well as within. It was what had

Justice and Lord Chancellor; Edward Garnier

along party lines.

prevented me seeking the glass-walled,

QC, Shadow Justice Minister and still a tenant

mirrored ceilings corporate world of the

with an established practice at One Brick

The age range of people applying and working

Magic Circle law firms that so many of my

Court specialising in media and defamation

as researcher ranges from 18 to 27, with the

contemporaries lusted after at university. An

work.

majority recently graduated from university

belt mentality was beginning to afflict the next

loyalty to their political party. This not only

character,

originality

and

anonymous face within a vast conglomerate

aged between 21 and 23. The parliamentary

was not the type of law practice that appealed

So what opportunities exist for someone

pay guidelines state that researchers can be

to me.

to work in Parliament? Apart from the 659

paid between £13,000 to £32,000, with a


23

the barrister

guideline starting salary of ÂŁ18,000 which is

organisations; help draft media articles and

Merchant Shipping Act, the Health Bill and

usually followed by most MPs with increases

parliamentary questions; manage the public

with the Minister for Transport, it transpired

in line with relevant experience.

relations and media for the MP and assist

that UK ships would only have to comply

in dealing with constituency issues (oh, and

with the non-smoking provisions of the ban

grabbing the occasional coffee!)

whilst they were within UK territorial waters

My own success in finding a place was due to dogged perseverance and a healthy dose

when arriving or departing. The couple were

of good fortune. When I began to look for

From the perspective of a young person

suitably relieved to learn they could smoke on

a position, I tried the website which at that

wanting to pursue a career as a barrister, the

board to their hearts content once they were

point had very few vacancies to work for a

main benefit of this multi-faceted role is that

12 miles from the coast!

Conservative MP. Therefore, I decided that

every task you undertake will enable you to

Working

rather than wait for suitable vacancies to be

take away a skill which can be utilised at the

environment, you often forced to be creative

posted, I would personally write to all 199

Bar. Apart from the more obvious skills such

and original in tackling problems, especially,

Tory MPs outlining my skills and asking if

as collating a wide range of material into a

for example, when a 30-minute carefully

there was a suitable vacancy in their office

concise, persuasive and relevant speech to

researched speech you have written needs

for a parliamentary researcher. Out of those,

an audience which is an asset to any aspiring

to be drastically edited within minutes due a

I received three interviews for possible

barrister, there is also the detailed analysis

Government announcement making much of

positions. After an interview and written test,

of the law itself. Watching a committee

the content redundant! The audience will still

I secured a position with Richard Spring, MP

forensically discuss individual clauses of a

be waiting for a speech in the same way that

for West Suffolk and Vice-Chairman of the

Bill allows you to see at first hand the possible

the judge and jury will still be waiting for you

Conservative Party for Business and Financial

consequences of badly thought-out and ill

to continue even if you have been ambushed

Services. Luckily his previous researcher had

drafted legislation and the way it can be best

by a new piece of information or case citation

moved on to work for a political consultancy

remedied.

by your learned opponent. Hopefully a wide

after the 2005 General Election and my letter

in

an

often

high

pressured

lesson learned.

had arrived in his office a month or so after

Another key aspect is dealing with constituents

he had left. After an interview and a written

who come from all walks of life with different

test, I was offered a paid position to start

problems all asking their MP for assistance.

So

at the beginning of the new Parliament in

From a retired major who disagrees with the

rewarding years working in the House of

after

spending

two

enjoyable

and

October.

way the Government is treating the armed

Commons, I now feel much more focused

forces and wants something to be done about

returning to the law with the knowledge that

At that time, most MPs had a single researcher

it, to a single mother with two children who

I have picked up a range of external skills

in their office but the past two years has

faces being evicted from her council home

and experience which can be put to good use

seen an incredible increase in the number of

and has come to their MP as they have no-

whilst pursuing a legal career as a barrister.

people wanting to gain experience working

one left to turn to. It makes you realise very

I would heartily recommend it to anyone

for an MP and many now work unpaid as

quickly that your actions will have a real effect

looking gain additional experience whilst

interns with a view to securing a longer term

on people’s lives, in just the same way it will

briefly stepping off the conveyor belt. Or of

paid position in many cases.

as a barrister. It is the human element that

course, you could always go to Thailand!

can often be lost when thinking scientifically In fact, it has become such an en vogue

of the law as a body of rules, procedure and

Sunil (25) read law at King's College London

sphere that the BBC recently made a prime-

precedent to be argued over in abstract terms

and graduated in 2004. Since then, amongst

time television drama, Party Animals, based

for different scenarios.

other things, he has spent the past 18 months working for Richard Spring MP in the

on the lives of parliamentary researchers, of

Yet it is remarkable how often the black letter

House of Commons as an interlude between

glamour, sex, drugs, political skulduggery

law is the direct answer to a constituent’s

returning to the Bar to undertake the BVC

and treachery, thrown into the mix which

problems. For example, I once had to help

commencing in 2008.

bears little relation to day-to-day life .

deal with couple who had saved up for many

unsurprisingly

it

had

liberal

doses

years and booked a 6 month cruise-of-lifetime Stripping the job down to its basics, your

which was due to depart in August 2007.

role is to simply support the MP in his or her

Their concern, as committed smokers, was

role. Whilst MPs will vary in the particular

that as this was a UK cruise due to set off after

type of work you are expected to do for them,

the smoking ban was due to be introduced on

the core tasks remain the same; conduct in-

1st July 2007, would their holiday be ruined

depth research on subjects, draft speeches for

by being prevented from smoking onboard

delivery both in Parliament and to external

for

the

duration?

After

consulting

the


24

the barrister

Prison suicides and prison overcrowding By Paul Cavadino Chief Executive of Nacro, the crime reduction charity.

I

n the first half of 2007, 44 prisoners killed themselves in English and Welsh prisons. This represented a sharp increase in the suicide rate in comparison with 2006, when 65 prisoners took their own lives during the whole year. This disturbing rise in deaths has been a particular blow for the Prison Service as it follows falls in the number of prison suicides in the previous two years – from 95 in 2004 to 78 in 2005 and 65 in 2006. The Prison Service has adopted a wide range of measures designed to identify potentially suicidal prisoners and to take the necessary steps to provide supervision and support for them. However, it has an unenviable task in tackling the problem of prison suicide. The prison system accommodates a population of people who are significantly more likely to attempt suicide than the general population. Around 20% of men and 40% of women entering prison have previously attempted suicide. What more can be done to check and reverse the distressing trend towards more selfinflicted deaths in custody? First, particular attention must be given and support provided to prisoners who have recently been received into prison. Almost one-third of suicides occur during the first week of a prisoners arriving in custody. Every prison which receives prisoners from the courts should have a “First Night in Custody” scheme and follow-up arrangements providing support for prisoners during this particularly vulnerable time. Secondly, research into prisoners who have made unsuccessful suicide attempts has found that most identify continuing mental health problems as contributing to their attempt. Many, especially female and young prisoners, describe memories of physical and sexual abuse as a key factor in producing the mental state which led them to attempt suicide. Nearly two-thirds of people who kill themselves in prison have a history of drug misuse and nearly a third have a history of alcohol misuse. This underlines the need for high quality services to be available to prisoners with mental health problems, addiction problems and a need for counselling and support to deal with past experiences of abuse. Third, high prison suicide rates are associated with lower levels of purposeful activity. Prisoners who have unsuccessfully attempted suicide emphasise the importance of greater

access to work and activities, both in and out of their cells. This provides a distraction from distressing thoughts and memories and gives them a greater opportunity to get informal support from other prisoners. Fourth, everything possible must be done to design or modify cells in ways which reduce the opportunities for suicide by elminating ligature points which prisoners can use to hang themselves. Over the last decade around 90% of prisons suicides have occurred by hanging, the most common ligature points being windows (used in 59% of cases) and beds (used in 17% of cases). Fifth, prisoners serving life sentences are over-represented in the suicide figures. Over the last decade around one-fifth of suicides have involved life sentence prisoners, who constitute eight per cent of the prison population. Prisoners facing any long sentence are likely to face problems of depression. When that sentence is also indeterminate, their uncertainty over when if ever they will be released can only add to prisoners’ sense of anguish. This is a powerful reason for abolishing the mandatory life sentence for murder, and restricting the use of indefinite sentences for public protection, so that indeterminate sentences are used only in exceptional cases. Sixth, and crucially, the Government must make determined efforts to reduce the prison population. Overcrowding damages the Prison Service’s attempts to reduce suicides in five main ways. First, it makes it more likely that signs of depression and suicidal intent will be overlooked when staff are struggling to cope with an excessive number of prisoners. Secondly, it makes it harder to provide a full tegime for prisoners and makes it more likely that prisoners will be held in their cells in idleness for long periods. This can worsen depression, reduce prisoners’ opportunities to get support from staff or other prisoners and can help tip the balance towards suicide. Thirdly, overcrowding makes it more likely that staff will miss signs of bullying and intimidation of weaker and more vulnerable prisoners which is an important element in some suicides. Fourth, it increases the pressure on prisons to move prisoners to locations far away from their families and friends, making visits and family contact harder. This can increase the isolation and depression of potentially suicidal prisoners. Fifth, an excess prison population has led

to many prisoners spending their first night in custody in police or court cells, none of which have supportive “first night in custody” arrangements or detoxification facilities for prisoners withdrawing from drugs. This increases the risk that potentially suicidal prisoners will suffer a worsened mental state, resulting in a subsequent suicide attempt. If we are to give the Prison Service a real opportunity to combat the rising toll of prison deaths, we must reduce the excessive use of imprisonment. Over the last decade the prison population has risen by over 40% and the women’s prison population has doubled. This is not because of rising crime. It is because of rising punitiveness. In 1995 courts imprisoned 20% of offenders convicted of indictable offences. In 2005 they imprisoned 25% and sentences also lengthened over the period. As a result this country has the highest imprisonment rate in western Europe. We have 149 prisoners for every 100,000 people in the general population compared with 85 in France and 93 in Germany. Reversing these trends will require legal changes – legislation should require sentencing guidelines to take account of the capacity of the prison system; Crucially, it will also require a change in political rhetoric. This means that Ministers must resist the temptation constantly to engage in the pursuit of populist “get tough” headlines and instead send out a strong, sustained and consistent message arguing for a reduced use of prison. Á particularly determined attempt must be made to reduce the number of mentally disordered prisoners: currently around 70% of prisoners have two or more mental health disorders and 5,000 have serious and enduring mental illnesses. Every area should have psychiatric assessment schemes at police stations and courts working to divert mentally disordered offenders from prison into health and social care. By reducing overcrowding, these measures would not only help the Prison Service to rehabilitate prisoners more effectively – they would also save lives. Paul Cavadino is Chief Executive of Nacro, the crime reduction charity.


the barrister

25

New Labour: Social Transformation Versus Social Order By Will McMahon, Centre for Crime and Justice Studies King’s College, London

I

t is often thought that contemporary British political and social history is divided into 'BT' and 'AT' - before and after Thatcher. Yet, whilst it is always problematic identifying historical turning points, a crucial moment was the social spending cuts implemented by the Labour Government in 1977. From this time, when Chancellor Denis Healy prefigured Mrs Thatcher's 'prudent housewife' election spin by arguing that 'we cannot spend more than we earn', there began the increase in poverty and inequality, and the journey towards the more divided society we know today. Most of us need to be reminded that the current level of inequality in the UK is relatively recent; that, from the late 1970s on, the shift from direct to indirect taxation and cuts ins corporation tax and higher income tax rates have resulted in the richest 10 per cent increasing their share of total net income by almost one third while the poorest 30% have seen their share falli. The last two generations have been experienced as an intense period of social change for most readers of this article. It is important to remember this, because, as leading social policy theorist Ruth Levitas argues 'it is very easy to forget', it is very easy to be captured by the present lived realityii. The years between 1977 to 1990 were ones of periodic and significant social disorder. From the late 1970s whole sections of the British population experienced an accumulation of traumas. The first shock was the dramatic cuts to public expenditure towards the end of the 1970s onwards that shattered the idea that, in the post-war world, Labour inevitably meant progress. This was followed by the monetarist experiment in the early 1980s in which many communities lost industries that had promised a life time of employment. The first experiments produced a bout of nationwide rioting in the summer of 1981. Further trauma was experienced in the closure of mines employing 200,000 in the second half of the 1980s. The period culminated in a riot in opposition to the poll tax in Trafalgar Square on March 31 1990 which was reported by the

BBC as one of 'the worst riots seen in the city for a century'. A later accompaniment to social disorder was the legislated social disorganisation of everyday life. In the drive to create a more individualistic, competitive and self governing society Thatcherism claimed to have set people free by changing the micro-political economy of almost every aspect of personal existence for the whole population. Legislative changes to nursery and schooling options, financing of university education, pension provision and personal social care for the elderly, the sick and the mentally ill and the mass sell off of council housing and basic utility supplies began to radically change people's lives. Life was transformed by the elevation of `choice' as the motor-force of service delivery. At an individual level many welfare services were turned into quasi-markets for `consumers'. At the global level of the welfare state there was a huge shift away from an ethos of universal social insurance and a collective guaranteed minimum towards personal and family obligation. All that was solid about the post war welfare consensus, from life long employment to the welfare safety net, had been actively unravelled and seemed to have melted into air. This extraordinary arc of change was more than a reconfiguration of resource allocation using social and economic policy levers. As Peter Marris suggests in The Politics of Uncertainty, in such circumstances the burden of uncertainty is redistributed downwards and increases the cumulative insecurities of the least powerful and most vulnerable in society and also `tends to maximize uncertainty for all, because it undermines the reciprocity of social relationships'iii. Rather than being an ally, your neighbour might now be viewed as a competitor for scarce social resources. One can think of the queues to get an NHS dentist or the well known practice of parents getting religion, or moving into the right area, in order to access what is perceived to be a `good school'. Such consequences are not inevitable but there are material and emotional pressures that enable

people to feel that such steps are necessary. The increased insecurities and anxieties have a double source - first the endogenous economic and social policy changes outlined above, but also the full force of globalization that we have begun to experience since the early 1990s. So people have been placed under tremendous pressure and there are many issues concerning the different capacities of people to adapt, depending on where they are in the social structure, to the new environment that has been created around them. This brings me to four points about New Labour and this social transformation. First, when New Labour came to power it began to tangle with this question of how to restore social order at the level of social relationships and community. That, as David Blunkett argued in his book Politics and Progress, we need to 'appreciate the scale of the social disaster brought about by the More than simply neo-liberal period'iv. restoring order there was a question of how to maintain social order in a further period of rapid economic and social transformation. Particularly in areas that had for twenty years felt the brunt of what Blunkett described as 'neo-liberalism'. The question New Labour asked, and has been unable to find an answer to, is how to reconstitute civil society at a local level within the framework of free-market globalization? Second, New Labour organised much of its discussion of the repercussions of `neo-liberalism' through the term `social exclusion'. The use of the term allowed New Labour to build a broad coalition who could read three different narratives into the concept; Ruth Levitas describes the narratives as: ‘RED’ – redistributionist and social democratic; SID - social integration/ inclusion, a European `catholic corporatist' view, and finally, MUD - moral underclass discourse – a narrative associated with United States’ social conservative Charles Murray Each narrative enabled New Labour to talk to three audiences at once, but clearly there were always going to be big tensions in how this was implemented in the real world. Part of New Labour's social policy story has been


26

the barrister

how this has unpacked over the last decade. Third, New Labour has used the ‘social exclusion’ discourse to offer to solve what it thought was a suitable level of problem. The argument runs something like this: there is a group who are socially excluded that are the product of Thatcherism. They are mostly located in areas of severe deprivation. Through the application of a specific set of policies we will enable them to overcome the social exclusion they face. There were Education Action Zones, Health Action Zones, Sure Start areas, New Deal for Communitites, Employment Action Zones and a whole range of pilots aimed at fixing the problem locally. This ‘we can fix it locally’ approach was also re-inforced by the managerialism that gripped New Labour.Multi-agency teams, cross departmental meetings and by 'thinking across the piece'. This was under-pinned by an appeal to the evidence base; during a speech to academic research specialists in 2000 David Blunkett argued 'It should be self-evident that decisions on Government policy ought to be informed by sound evidence. Social science research ought to be contributing a major part of that evidence base. It should be playing a key role in helping us to decide our overall So, for example, even as late strategies.v' as the 2005 Labour Party Conference the then Home Secretary Charles Clarke told the audience that 'we have to determine by the next general election ...we have eliminated the anti-social behaviour and disrespect that blight the lives of so many'. Fourth, as is known, the problems the people thought of as 'socially excluded' in their day to day lives have not been so amenable to solution and that the response to this has been fall back onto some very conservative social policy themes. Through the social exclusion dialogue we have the re-emergence of the underclass thesis. In John MacNicol's 1987 Journal of Social Policy essay, ‘In pursuit of the underclass’ MacNicol describes the `cycles of rediscovery’ of `the social problem group' or `the problem family' or `the underclass' by at least three generations of policy makers in the twentieth century. MacNicol argues that ‘in its periodic reconstructions the `underclass' concept has tended to consist of five elements: First, an artificial administrative definition relating to contacts with particular institutions of the state - welfare agencies, social workers, the

police, and as such it is a statistical artefact. Second, in order to attain scientific legitimacy such a definition has to be conflated with the quite separate question of inter-generational transmission through either heredity or socialisation - otherwise the underclass could simply be those `at the bottom of the pile' at any one time. And it is the transmission of alleged social inefficiency rather than structural inequality that is the focus of attention. Third, there is the identification of particular behavioural traits as anti-social and the ignoring of others; and as part of this exercise it necessary for proponents of the underclass concept to lump together a wide variety of human conditions (in order to make the problem appear significant) and attribute them to a single cause (so that it appears a problem amenable to solution). It would be difficult to find a better predictive description of the anti-social behaviour artifice and the ‘Respect’ agenda than MacNicol’s third point. Fourth, MacNicol continues ‘the underclass problem is essentially a resources allocation problem and as such’ and ‘Fifth, it tends to be supported by those who wish to constrain the redistributive potential of the welfare state and it has thus always been part of a broader conservative view of the aetiology of social problems and their correct solutionsvi. Although written over 20 years ago I think the article describes perfectly the point at which we have arrived and that underpins New Labour's social justice and criminal justice thinking because, put simply, the Government is unable to find another answer to the question 'Why if we have done so much for the socially excluded are they still behaving so badly?' I will make three short points to conclude. The first is that despite 60 consecutive quarters of economic growth the number of children living in poverty increased by 100,000 in the most recent annual figures that we have. Given that extended periods of growth always come to an end what do we think will happen to child poverty rates when there is a change in the economic cycle? The second is that the number of black people, predominantly ‘socially excluded’ young black men in prison has risen from 4,000 to 12,000 in the last twenty years. It rose from 4,000 to 7,000 from 1985 to 1997 and then another 5,000 since 1997. The third is a quote from a recent essay by Professor Danny Dorling: 'It is important to note

that the government's decision to differentiate non-working individuals without children from those with children in the welfare and benefit system has led to many infants being born to parents without the means to care for themselves during pregnancy, or properly for their child after birth. Tax credits, child and other benefits associated with having children kick in too slowly for most of these children who die so soon after birth.' … 'There is a correlation between that financial punishment and the rising relative numbers of dead bodies of poor infants under New Labour.' According to Dorling's work the infant mortality inequality gap fell under Major to the level of 12% in 1998 but rose under Blair to reach 18% in 2004vii. For sure, after a decade of New Labour in government, we seem to be living in an increasingly insecure and harmful society because the outcomes of the great social transformation that has taken place have gone largely unaddressed, and appeared to have been reinforced since 1997. It is unclear as to what contribution New Labour’s criminal justice policies can make to reducing that harm: the policy tools required to address the outcomes of ‘neo-liberalism’ are, perhaps, to be found elsewhere. Will McMahon Centre for Crime and Justice Studies King’s College London will.mcmahon@kcl.ac.uk iLevitas , R. (2004) Shuffling back to equality? In Soundings: A journal of politics and culture Issue 26, Spring pp59-72 iiibid iiiMarris, P. The Politics of Uncertainty, Attachment in private and public life. London, Routledge, 1996. ivBlunkett, D. (2001) Politics and Progress renewing democracy and civil society. London, Polticos. p79 vBlunkett, D. (2000) Influence of Irrelevance: can social science improve Government? Speech by to the ESRC February 2. viMacNicol, J. (1986) ‘In Pursuit of the Underclass,’ Journal of Social Policy, V16 N3 (1986) 293-318 p315-316. MacNicol suggests that proponents of the underclass concept display a strong present time orientation, with little ability to defer gratification, until the past debate has been examined viiDorling, D. ‘Health’ in Closer to equality? Assessing New Labour’s record on equality after 10 years in government, London, Compass.


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the barrister

Large Scale Fraud cases and the issues surrounding E Discovery investigations Although E Discovery has been picked up well by the investigative fraud community across the pond, we are being surprisingly slow to respond and many litigators are still unsure of its format and usefulness By Carrie Moss BA (Hons), CIM, CY4OR Limited

A

recent

Report

by

Fraud

Advisory

the

fraud community across the pond, we are

processes and achieve the same result’. How

Panel

being surprisingly slow to respond and many

much of the defence team are IT literate let

revealed that the average

litigators are still unsure of its format and

alone au fait with forensic applications and

length of a serious fraud

usefulness.

processes?

investigation

between

2002 and 2006 totalled

Picture the typical fraudulent scene – a

33 months, costing the British taxpayer

company director and finance team are

qualifies for legal aid and the Legal Services

around £100 million per year to fund in

accused of VAT fraud over its 5 years of

Commission are looking for the most resource

Legally Aided cases. An example would be

trading. The accounts team alone consist of

effective solution to examining all evidence.

the 2005 Jubilee Line prosecution, which

4 individuals each with their own computer

The physicality of searching through pallets

fell apart after a 21 month trial at the Old

workstations. All invoice documents are

of printed information or megabytes of

Bailey. The price tag for this particular failed

created on these computers, and all staff

digital information for pieces of evidence,

investigation was placed at £60 million.

have access to internal and external email

drain resources significantly on the part of

facilities.

to

defence teams - both financially, and in terms of man hours, often at the detriment of the

‘Improving the Investigation and Prosecution

and so there is also years worth of paper

progression of the case.

of Fraud’, particular attention was paid to

documentation stored on the premises.

recently

published

firm

switched

investigation

electronic invoicing, they were paper based,

their

the

the

document

In

Before

Secondly,

two common pitfalls in fraud investigations.

Firstly difficulties faced in focusing the

made up of several individuals; lawyers,

Thirdly,

the

defence

team

is

investigation during the early stages, and

The defence team need to review all invoicing

counsel, accountants who are spread across

secondly containing the issues that arise

documentation, all emails between defendants

the country. The logistics of regular case

when handling large volumes of seized

to investigate chains of communication, and

conferences are often difficult to master, and

material.

vast

all associated documents produced over this

circulating sensitive evidential case material

amounts of information found on computers

time period. This could equate to tens of

via email can be a cause for concern from a

that is becoming increasingly relevant and

thousands of documents, some of which may

security point of view.

valuable. At their most serious, problems in

have been deleted over time and so are not

any of these areas can lead to the failure of

immediately accessible.

Seized

material

includes

a prosecution. So in summary there are not

The solution to investigations of this nature from an investigative point of view is

only questions of cost raised by the FAP, but

Where do they begin to investigate all this

Electronic Discovery. Electronic Discovery

also ones of efficiency and methodology when

information bearing in mind the following

is the review and production of evidentiary

investigating fraud cases.

points?

material for litigation, stored in electronic

It is no wonder then perhaps that the

Fraud Advisory Panel are pushing for the

Officer guidelines must followed so as to

databases and presentations. The data can

use of resource saving technology in the

ensure no computer based evidence is

be stored or found on portable media (e.g.

form of Electronic Discovery to help focus

corrupted. These guidelines dictate that ‘An

tapes, CDs, floppies), hard drives, residual

investigations in the early stages, and process

audit trail or other record of all processes

data (i.e. deleted data), personal organizers,

vast quantities of information efficiently and

applied to computer-based evidence should

mobile telephones and employee personal

effectively. However although E Discovery

be created and preserved. An independent

computers.

has been picked up well by the investigative

third party should be able to examine those

format. This may include email, word Firstly, Association of Chief Police

processing

documents,

spreadsheets,


the barrister

29

E Discovery is entirely ACPO compliant

of events, lines of investigation and potential

I shy away from all things ‘technical’.

provided it is carried out using recognized

evidence. The database can also be password

This is not an uber technical piece of software.

forensic

protected to enhance levels of security.

In fact in many cases it has been specifically

procedures.

Firstly

the

seizure

of computer based information must be

designed for the non IT based community.

addressed – some E Discovery suppliers

In addition, the documents in the database

It is in essence a searchable database with

will also provide this service. All relevant

have been Bate stamped, so can be served as

supporting features.

workstations within the defendant company

disclosure during the litigation process.

Confidentiality and security issues with

must be forensically imaged (a snapshot of all information deleted or live on the computer

This seems simple enough, so why are we

outsourcing. Research the E Discovery

is taken). This is non invasive and does not

not utilising this service to find the proverbial

company you are outsourcing to, especially if

affect business continuity. From that point on

needle in the haystack in large scale fraud

deleted data needs to be recovered. Reputable

the investigation will be carried out from the

cases? It is cost effective, resource saving and

companies will have forensic capabilities and

forensic images, which at this stage are non

an intelligent way to begin an investigation;

trained in EnCase software – the industry

comprehensible to an averagely IT literate

the start of which is often little more than a

standard. They will also be security cleared

professional - a computer forensic team must

fishing expedition. Some Legal 20 firms and

and will have signed the official secrets act.

be brought in. All paper based documentation

accountancy firms have got on board, and have

is also seized at this stage, and logged as

even gone to such lengths as to acquire their

evidence by the forensic team.

own internal team of forensic professionals,

0161 797 8123

combining this with the acquisition of their

info@cy4or.co.uk

own E Discovery software.

www.CY4OR.co.uk

Further to this, the paper based documents will be scanned using optical recognition software and combined with the thousands of

However for the small to medium size firm it

digital documents that have been recovered

is not financially achievable to recruit a team

Carrie Moss

(if deleted) or extracted from the computer.

dedicated to providing this service should a

Marketing Executive CY4OR

They will all be uploaded into the E Discovery

case arise – and so the solution is to outsource

0161 797 8123

software; the process can take a little as a few

to third party.

Carrie.moss@cy4or.co.uk

days to complete. The database is burnt onto DVD and supplied to the defence. It is that

There seems to be a few typical responses to

simple.

why teams are not using this service.

The defence team are now in a unique

The service is too expensive. This needn’t

position. They have all documents and emails

be the case and is often resource saving.

created by the defendant company throughout

Compared to manually trawling through

its time in trading at their discretion stored on

reams of paper, or years worth of digital

CD. This includes deleted documents which

documentation, it is an efficient solution for

have been recovered by a computer forensics

locating documents of reference. According

company. All documents can be viewed in a

to a survey recently published in the financial

PDF format or printed as required. They can

times, the average fraud case now requires

be searched by key names, dates, document

the analysis of 5000 emails and electronic

titles etc, and as the information has been

documents however this is often only the tip

uploaded using character optical recognition

of the iceberg.

software it will become immediately available on the screen.

Just print it. Aside from the obvious financial resources and manpower that

Documents that have been noted by the

would be needed to print our and review all

defence team as relevant or important to the

digital documents, key areas could be missed

investigation can be categorised, annotated

doing this. For example, printing out an email

or redacted to highlight their significance to

would not account for any individuals who

the case. Copies of the edited E Discovery

had been BCC’d into the correspondence.

database can then be shared between the

This wouldn’t show on the printed material

defence team, so everyone can see the trail

and would therefore be overlooked.


30

the barrister

Telephone Marketing-your chamber’s route to new business? Used extensively in Business to Business marketing for many years, telephone marketing is achieving an ever growing importance amongst the accountancy and legal professions By Peter Rosenwald, Managing Director, Chartered Developments o start to build your profile

T

you direct instructions- and councils and

Telemarketing is highly effective in targeting

and ultimately receive new

other Govt bodies who might provide a mix

named, high quality prospects. It achieves

instructions, you need to

of both.

this by being the most proactive of all

speak to the right person

marketing mediums, whereby an intelligent

in the right organisation

Clearly different approaches will be required

telephone conversation with a prospect

at the right time, and then

according

with

unearths a need, qualifies their interest

convert this interest to firm business through

solicitors you may want to build a long term

and provides a solution –often by way of a

building a relationship. This article explores

relationship, whereas with corporates etc,

physical appointment. The appointment will

the merits of using telemarketing as a means

you are in effect asking for their ‘order.’

be the springboard for you to achieve your

to

the

sectors

chosen;

of achieving the new business objectives of your marketing strategy.

10 point plan

ultimate objectives-which may range from Factors such as the size of solicitor and their

establishing an ongoing relationship with

areas of expertise should be considered.

a referring solicitor- through to gaining an

Clearly, you are likely to get better quality

actual instruction direct from a corporate.

referrals from a national law firm than from Gaining new clients, whether from referring

a smaller regional one, but the degree of

Its uses include targeting new prospects,

solicitors or directly from corporates, requires

competition is likely to be more limited with

carrying out customer care programmes with

a properly funded and thought out campaign

the latter. Equally, the larger corporates might

existing clients, inviting clients to seminars,

which will typically cover 10 stages as set out

appear more interesting than the smaller

informing those on the data base of ‘news’

below.

firms, but again the degree of competition

such as a move to new offices or appointment

might become a factor, as might travel time.

of new personnel.

With smaller corporates however, it is likely

Giving a (marketing) brief

1 set out your objectives

that they may not be aware of all the services

2 determine numbers of new contacts/

that barristers can offer. In this respect you

customers needed to achieve them

may need to provide some basic information

To calculate the size and scope of a

3 agree who will be targeted by type/size/

as to the place that barristers occupy in the

telemarketing project designed to gain new

industry

legal hierarchy and how their services can be

business it is useful to revisit your marketing

4 provide an up to date list of contacts

accessed.

strategy. A one off enhancement of £50k will require a different approach to achieving an

5 determine the best marketing method to achieve your objectives

A little research amongst the members of

uplift of £500,000k over 12 months that can

6 provide a detailed brief to a professional co

your chambers may indicate they have their

be built on in future years.

in your chosen field

own preferences for the market sectors you

7 have a meeting-agree objectives, timings

should approach, based on past experiences

Your past experience is likely to indicate

and costs-award contract

and expertise. The more specific you can be,

how many companies or recommending

8 train someone to attend sales meetings

the better for the telemarketing co you may

solicitors will need to come on board in order

9 carry out agreed programme

employ.

to provide the level of business you seek. If £25000 of income represents one new client,

10 review, revise and repeat.

clearly around 20 will be needed to achieve

Choosing your market place

Why use telemarketing?

half a million pounds. If ten people need to be contacted before an appointment can be

Used extensively in Business to Business

gained, and then one in three appointments

Who should you target as potential clients? This

marketing

telephone

are subsequently converted to referrals or

will be a question your chosen telemarketing

marketing is achieving an ever growing

new business...These numbers represent the

firm will want to know at an early stage. The

importance amongst the accountancy and

stark reality often comfortably hidden within

likely choices include Solicitors who may

legal professions.

many other marketing mediums, whereby

provide referrals; corporates- who can give

for

many

years,

vague expressions of interest generated


the barrister

31

from say advertising, are often seen as the

organisations that may never have heard of

acquiring appropriate sales and relationship

same thing as confirmed business. Chartered

you.

skills is likely to prove invaluable. Many

Development have been at the sharp end of

firms-but not yours of course- often posses

generating new business and establishing lasting relationships through the medium of

far fewer of these sales skills than they

Setting targets

believe, and the time and money invested in

the telephone for some ten years and can

the overall project can be largely wasted if the

confirm there is a vast difference between

It is essential to set some realistic targets

an expression of interest, a lead, a prospect

to judge the telemarketing project against.

appointments are not handled correctly.

and a customer! There is often a long gap

For example, it is reasonable to expect a

Some

as well, as within a professional services

certain number of calls will be made per

has recognised the Achilles heel of many

environment the time scale between initially

hour, and from that a definable number of

professionals and offer sales training, so

recording someone’s name and address on

contacts made, against which a set number

that all the hard work involved in getting the

a data bank, to their eventually becoming a

of appointments might be expected (or

client face to face with their prospect is not

client can range from weeks to years.

relationships established). All of these ratios

wasted.

marketing

firms-like

our

own-

will vary according to circumstances and complexity of the project of course, but some

Telemarketing within your marketing mix

indication of likely success rates should be

The Acid test-will it work?

possible. Securing the right quality of data in the first place to ensure call time is optimised

Every marketing discipline will have their

is paramount. Targeting firms that have

relative merits according to the project

The flexibility of telephone marketing allows

gone out of business or individuals that have

involved,

short or long term programmes to be rapidly

moved on is a waste of everyone’s time and

advertising, pr, exhibitions, web sites etc.

undertaken to variable numbers of targets-

money.

However, only one medium hits all the key

according to budgets and objectives- whilst feedback

can

be

quickly

monitored

to

direct

mail,

buttons in terms of speed, cost effectiveness

Training

and the ability to have a two way dialogue

ascertain continuing effectiveness. It works

with precisely and only those firms you

well as a stand alone marketing discipline, or

A firms’ ability to gain their client an

is highly effective when combined with other

actual instruction or set up a worthwhile

mediums, such as direct mail. In this case a

ongoing relationship following a confirmed

letter/brochure may be sent confirming the

appointment is normally outside the control

appointment of new personnel and telephone

of your telemarketing partner. It would

marketing is then used to capitalise on

be our observation however that many a

interest by making appointments.

telemarketing project has produced a good number of highly targeted calls resulting in

What happens next?

telemarketing,

the right person enthusiastically agreeing to a meeting and then...

The firm you intend to work with should be qualified and competent within the market

Selling your professional services to other

sectors you intend to target. The better

hard nosed professionals -whether in business

ones will invariably have membership of

or to solicitors- is a considerable skill in its

appropriate trade bodies which ensures they

own right. It requires an understanding of

meet certain professional standards.

the selling process, the right temperament, appropriate expertise and authority, an

A reputable telemarketing firm will always be

ability to organise, communicate, follow up

happy to help draw up a brief and provide

and close and vast reserves of persistence.

costings for a project. Generally it is best for

Appropriate systems need to be put in place

both parties to attend an initial exploratory

to ensure the prospect doesn’t fall through

meeting, so an understanding of your firm

the net over time.

and its objectives can be gained. Barristers are busy people and often such a meeting can be the ideal catalyst to work through your

Without

ideas and objectives. The marketing co will

some projects falter on the inability of a

also welcome a meeting as they will want to

professional to convert a perfectly good lead

understand what makes your firm tick so it

to firm business. In this respect, as part of

can professionally promote your merits to

your overall package we would suggest that

wishing

to

labour

the

point,

wish to target. That is telephone marketing.


NEWS ROUND UP

32

the barrister

Ten years of the Criminal Cases Review Commission By John Wagstaff, solicitor, Legal Adviser to the CCRC

O

n the 4 January 1997

Three generations later, it was another

was decided to opt for a central provincial

the clouds were so low

miscarriage of justice with Birmingham

site, which not only emphasised the CCRC’s

in Birmingham that from

connections that led to the creation of the

independence from Whitehall, Westminster

twenty-one floors up it

CCRC. A few hours after the Birmingham Six

and the Strand, but also offered huge savings

was impossible to see

were photographed with the journalist Chris

over London rents. Alpha Tower, at the heart

the ground. We thought

Mullin on the steps of the Court of Appeal after

of Birmingham’s road, rail and air networks,

the windows of the office block must have

their release in 1991, the Home Secretary

stands close to the sites of the Birmingham

been coated in some opaque grey security

announced a Royal Commission on Criminal

pub-bombings as well the memorial to the

film. Inside, gaping expanses of carpet and

Justice to consider ‘the arrangements for

victims.

bare desks stretched around four strangers,

considering and investigating allegations of

who introduced themselves to each other

miscarriages of justice when appeal rights

Happenstance

as the first staff of the brand new Criminal

have been exhausted’. When it reported in

intriguing links to the miscarriage that had

Cases Review Commission. We knew that by

July 1993, the Runciman Commission (Cm

played such a key role in prompting the

1 April we had to be ready to start dealing

2263) recommended that the power to refer

reformation of appeal reviews. Among the

with hundreds of cases calling for detailed

matters to the Court of Appeal should no

first Commissioners to be appointed was

and skillful analysis.

longer be in the political hands of a minister,

Baden Skitt who, as a young uniformed

but should be trusted to an independent

police inspector, had had the task of rescuing

‘Criminal Cases Review Authority’.

survivors from the ruins of the Tavern In The

In the ten years since then, most days have given us uninterrupted views across thirty

continued

to

provide

Town on New Street and the Mulberry Bush in

miles of the West Midlands basin, while

The proposals placed before Parliament in

the Rotunda. Meanwhile, the journalist who

every single day has given us a succession of

what became the Criminal Appeal Act 1995

had made the World in Action programmes

insights into the most compelling, puzzling,

owed much to a 1994 report by a JUSTICE

which exposed the miscarriage, Chris Mullin,

and heart-breaking criminal trials ever to

working party. The Act received Royal Assent

had become an MP and was chairing the first

have troubled our courts.

in July 1995, and the process of recruiting

Home Affairs Select Committee to monitor

the first Chairman, Commissioners and then

the CCRC’s progress. And the TV producer

staff began soon after.

who had made those programmes found

Miscarriages of justice have been a major factor in shaping this country’s appeal

that his younger sister, then a law student,

system. The creation of a criminal Court of

The

Appeal in the early 20th Century was strongly

another link to Birmingham. Sir Frederick

influenced by public reaction to a string of

Crawford had been the Vice-Chancellor

cases during the previous fifty years, and

of Aston University, based close to the city

The Commission became a very different

particularly those of Adolph Beck (between

centre. He came to the Commission from a

creature from the government department

1896 and 1901) and George Edalji (1903-

background in plasma physics and statistical

that had been operating for the first 90 years

1906). George Edalji’s case, with its strong

mathematics.

His vision for the CCRC

of the criminal appeal system. Decision-

Birmingham connections, has recently been

surprised many. He set about creating a

making is in the hands of the independent

fictionalised with great success in Julian

liberal and collegial organisation, structured

Commissioners with their varied backgrounds

Barnes’s novel Arthur and George (Jonathan

more like a set of barristers’ chambers than

and contrasting personalities. Investigation

Cape, 2005). The very first Criminal Appeal

a section of the public service. He put his

and analysis are carried out by meticulously

Act of 1907 not only established a Court of

faith in a rigorous recruitment process and

recruited Case Review Managers drawn

Criminal Appeal for the first time, but also

a ground-breaking system of information

from a wide range of disciplines, with resort

allowed the Home Secretary to refer doubtful

technology.

to outside help only where specialist skills

CCRC’s

first

Chairman

introduced

cases back to the new court instead of

had grown up to become the CCRC’s first Chief Executive, Glenys Stacey.

are required. The atmosphere of the office

considering whether to recommend a royal

After several possible locations had been

pardon.

considered for the Commission’s offices, it

is informal and enthusiastic.


the barrister

33

There are statutory limits on the period of

with a view to creating their own bodies in

examine the intestines of a case and try to read

time for which a Commissioner can serve,

due course.

in them the thousands of words that would

so all of the original Commissioners have

eventually make up the court’s judgment

now stood down in phases, and an entirely

The statutory provisions that create and

if the matter were to be referred. But the

fresh set of minds direct the Commission.

control the CCRC are brief and gnomic. The

margin of interpretation that surrounds the

On the management side, too, there have

Act tells us that we must not refer cases back

CCRC’s test is simply a reflection of a similar

been significant changes. There is now a

to the courts … unless; unless there is a ‘real

margin that has long accumulated around

small Senior Management Team led by the

possibility’ that the conviction or sentence

the Court of Appeal’s own test. As another

Principal Director.

would not be upheld (s.13 Criminal Appeal

Lord Chief Justice, Lord Widgery, said in R v

Act 1995). So, our primary task consists of

Lake, 64 Cr. App. R. 172, “… such doubts are

When Sir Fred Crawford retired in 2003,

assembling complex webs of data, analysing

resolved not, as I say, by rules of thumb and

it was another academic who received the

them into manageable sets of information,

not by arithmetic, but they are largely by the

Chairman’s post, but this time one with a

and then trying to predict what might be

experience of the judges concerned and the

legal background. Professor Graham Zellick

the reactions of the appeal courts to any

feel which the case has for them.”

was keen to raise the Commission’s public

changes that have occurred since the original

profile and he has established a mature

hearings.

I say ‘appeal courts’, because

The complex and subtle relationship between

relationship with the legal press. Steering

the CCRC can send summary convictions

the CCRC and the Court of Appeal has been

the Commission through a more austere

for appeal in local Crown Courts, as well as

examined recently in several controversial

financial climate, he has reduced the number

Crown Court convictions for appeal in the

cases, the most recent being R v Cottrell; R

of Commissioners and promoted radical

Strand’s Criminal Division.

v Fletcher, [2007] EWCA Crim 2016 (31 July

changes in the Commission’s structure and

2007).

A century after the Court of Appeal

practices, while maintaining the productivity

The test at the heart of this process - fixed

was created and a decade after the CCRC

and standards of casework.

by Parliament as ‘real possibility’ – is almost

appeared on the scene, it’s clear that the

unique in legislation, despite being a familiar

evolution of our criminal appeal system is far

The CCRC now occupies three floors of Alpha

phrase in common law. Apart from the CCRC

from complete.

Tower and has a staff of about 100. Although

legislation, the term appears in only one

cases are generally reviewed by individuals,

other British statute: the Criminal Procedure

casework staff sit in groups to share experience

and Investigations Act 1996.

and ideas. An administrative section handles

received early attention from a Lord Chief

incoming applications and looks after them

Justice, Lord Bingham, in a judicial review

while they receive a preliminary assessment

heard on 18 May 1999, R v Criminal Cases

from a Commissioner to predict the amount

Review Commission, ex parte Pearson [2000]

of time each is likely to require. They are

1 Cr.App.R. 141, [1999] 3 All E.R. 498, [1999]

then allocated in turn so as to provide each

C.O.D. 202.

Its meaning

member of the casework groups with a balanced range of smaller and longer cases.

Lord Bingham, CJ, did not attempt to guide the CCRC by expressing the meaning of the

As well as support from their colleagues

term as a mathematical probability or ratio.

and Group Leaders, the casework staff can

Instead he preferred verbal analogies, many

turn to two Investigations Advisers, both of

drawn from the context of gambling. From ex

whom have been heads of CID in major police

parte Pearson we learn that a real possibility

forces, and two Legal Advisers, as well as a

is something more than ‘an outside chance’,

resourceful range of administrative support

or ‘a bare possibility’, or ‘an obviously

staff. The Commissioners are available to

threadbare argument’; but it is less than ‘a

discuss practical difficulties that arise, as

probability’, ‘a likelihood’, ‘a racing certainty’

well as sitting in more formal committees to

or ‘an assured success’. We can also deduce

consider case plans and ultimate outcomes.

that a real possibility is equal to ‘at least a reasonable prospect’.

Other

jurisdictions,

including

Norway,

Canada, Australia, New Zealand, and the USA

This may not seem like a lot for the CCRC’s

have studied this British innovation carefully

Commissioners to go on when they come to


34

the barrister

Mediation as approximate justice? A review of Sir Gavin Lightman’s S.J Berwin Lecture By Tony Allen, Director of CEDR

S

ir Gavin Lightman’s target for his S.J. Berwin Summer Mediation Lecture was the cost of litigation, the consequent inaccessibility of justice and how mediation might provide a solution, were it not for the difficulties placed in its way by the Court of Appeal in Halsey v Milton Keynes NHS Trust [2004] EWCA (Civ) 576. Ironically, despite its trumpeted adoption of the European Convention on Human Rights (ECHR), the Government has in his view itself impaired access to Article 6, rights to a fair trial, by emasculating and privatising funding arrangements. This irony is further counterpointed by the Court of Appeal’s suggestion in Halsey, that for a court to order unwilling parties to mediate infringes exactly the same provision of the ECHR. He recorded the successes of mediation, now seen as appropriate for almost every sector; its use encouraged by judges; its practice satisfying for professionals engaged in it, though a possible source of negligence allegations if ignored; and its theory the subject of academic study. He sees mediation as being a palliative to the expense and pain of litigation, bringing something like justice to those otherwise unable to seek it. His main attack was on the reasoning in the Court of Appeal in Halsey, a decision seen generally as having cooled the mediation market after the shock of Dunnett v Railtrack. This is not altogether fair on Halsey. It is good to see it cited in the Solicitors Code of Conduct 2007 in the notes to Rule 2.30 as a warning that a party who refuses ADR may face costs sanctions, hence requiring solicitors to advise on its use in any dispute. It is also very hard to gauge how big the mediation market truly is now, and what impact Halsey truly has had, as few reliable statistics are published about case numbers. However, Sir Gavin’s concerns about Halsey are the dicta that: • for a court to require parties (including presumably both or all parties in the same case) to mediate against their will breaches Article 6 of the ECHR; and • the burden is on a party seeking a costs sanction for refusing mediation to attack that refusal, rather than on the refusing party to justify it. Few commentators have understood the human rights point since it was argued, apparently without intention, by the Law Society as intervener and accepted (albeit obiter) by the Court. Ordering mediation does not exclude parties from the courts. As Sir Gavin noted, it merely delays the litigation process for a short period to see if settlement is possible, without in any way barring the road back to the court-room. Alternative dispute resolution of this kind (unlike arbitration, which bars access to the courts completely, and yet is fully supported by ECHR decisions) is not a separate dispute resolution process.

It is not in the true sense “alternative”. Litigation and mediation are symbiotic and interdependent. No one can be compelled to settle, nor even to engage longer than they wish in the mediation process. They can leave without fear of retribution at any later hearing, by virtue of the confidentiality which surrounds the process. There are plenty of delays inherent in the civil justice process, such as protocol compliance before being able to issue, meeting disclosure requirements and so on, likely to slow up the road to trial far more than the by-way of mediation, especially as settlement is the norm anyway. Sir Gavin enquired whether the Court of Appeal were aware of the true nature of mediation as not requiring a stay like arbitration, and of the extent that other common law jurisdictions mandate mediation around the world. Submissions to the Court from interveners like CEDR and ADR Group and the Civil Mediation Council were of course mainly directed towards costs sanctions arising from refusal of an inter-party offer, as this was the factual thrust of Halsey and Steel v Joy, the conjoined appeal. But there was sufficient in all these submissions to make the position clear to the court on these points. Indeed, in the CEDR submission, I pointed out the fact that the ARMS (Automatic Referral to Mediation Service) pilot was due to start at the Central London County Court almost immediately, based on the successful mandatory pilot in Ontario. The recently published report Twisting Arms by Professors Hazel Genn and Peter Fenn reflects on how the Halsey decision effectively torpedoed the ARMS pilot by undermining the court’s authority to mandate mediation, despite its being authorised by a formal amendment to the CPR approved by the Rules Committee! The burden of proof where the losing party seeks relief from a winner who refused mediation is a more ticklish issue. Sir Gavin’s own decision of Hurst v Leeming led the thinking in the post-Dunnett, preHalsey period. I acknowledged in the CEDR submission in Halsey that Sir Gavin at least impliedly regarded the burden as being on the party refusing mediation to justify that. The Halsey judges worked from the “general rule” enunciated in CPR Part 44.3(2) that the unsuccessful party pays costs, though the court can make a different order. Indeed, courts have made many “different” orders on costs since the CPR in ways that would never have been contemplated pre-CPR. The “burden of proof” may be elusive. After all, even on Sir Gavin’s view of the burden, Mr Leeming QC satisfied it against Mr Hurst, and the Halsey judges suggested that the burden on the unsuccessful party may not be onerous anyway. Furthermore, the CPR and the protocols themselves suggest that it is for reluctant or refusing parties to justify their refusal – take the Ungley Order, now enshrined in para 4.10(9) of the Practice Direction to CPR Part 29, and specifically approved by Halsey, where the party refusing to use ADR must be prepared to justify this

view to the judge at the end of the trial by a witness statement lodged in advance. I am not sure that all judges in procedural mode are fully aware of what mediation is and can do, or that they all recognise, as he suggested, that “there is no civil case in which mediation cannot have a part to play in resolving some (if not all) of the issues involved”. Few judges of any seniority were in private practice when mediation was around. Nor perhaps is there enough general enthusiasm for both encouraging and facilitating use of ADR, both words being used in CPR Part 1.4(2)(e) in defining this instance of active case management. Wise judges will not see mediation as competition, or something to be curbed, but as a companion process which can free up the mainstream litigation system to deal with cases worth trying quickly and inexpensively, assuming that delay almost always involves cost. Sir Gavin’s title - Mediation: an approximation to justice - came as a bit of a shock. He suggests that mediation is as close as most people can get to the real thing. This perhaps pre-supposes that justice is what courts infallibly deliver, not a view espoused by Sir Gavin in his 2003 lecture entitled Mediation the first and litigation the last resort. Mediation is strictly about delivering not justice, but choice and responsibility to litigants, something rather more relative. It is also about delivering the certainty of a personalised process akin to a day in court to parties for whom settlement at arms length rather than a chance to speak out at trial is the norm. This renders mediation better than second best. But the idea that mediation is as close to justice as most people can afford to get was on the face of it welcome music to the ears of the great and good of the mediation world who heard Sir Gavin’s lecture, staged in S.J. Berwin’s spectacular roof garden. His underpinning theme that civil justice is too expensive and therefore that lawyers cost (or earn) too much, would have been less welcome to those mediators with conventional legal day jobs. His own testimony that “I have often seen parties broken by the [litigation] process and by the cost of litigation” is telling and must not be ignored. It was ironic that over the canapés I overheard a remark to the effect that everyone was earning lots of money from litigation and M & A and all was therefore right with the world. I rather doubt either the accuracy or the wisdom of that proposition outside the heady atmosphere of the London magic circle and its immediate environs, nor even everywhere within it. His warning should also have reminded mediators that their prime responsibility is to deliver cheaper and quicker alternatives to litigation trial while still offering “an approximation to justice” – that is, something nearly as good. Merely to establish yet another expensive dispute resolution process will consign mediation to the same fate and reputation as arbitration.


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