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01.10.2004 www.barristermagazine.com

MICHAELMAS TERM ISSUE

White Paper on Tribunal Reform The Department of Constitutional Affairs (DCA) recently issued a White Paper on tribunal reform. Following up – and going beyond - the 2001 Leggatt Report, it sets out a wide range of proposals. This includes creating a unified structure for the tribunal system, better services for users, and ways to resolve cases without formal hearings – or the need for legal representation.

KEY PROPOSALS The main recommendations include: Establishing a unified system of tribunals under the responsibility of the DCA, to deal with administrative justice appeals and employment cases. A single gateway for users, with standardised and user-friendly information A mission to help to prevent and resolve disputes through proportionate dispute resolution. An Administrative Justice Council to facilitate the new system. It anticipates financial savings from sharing accommodation, integrated systems and economies of scale.

The new service is seen as key to promoting the DCA’s commitment to ‘better handling of complaints, with faster, friendly and cheaper solutions’. While seeking to resolve disputes in

the ‘best way possible’, the DCA also seeks to stimulate improved decision-making so disputes do not happen.

Benefits for Users The new approach is seen as having many benefits for users of the tribunal Allison Hannah, Director, system. In Legal Action Group particular: It will be – and be seen to be - independent of all decisionmaking government departments by being brought within the remit of the DCA. By bringing tribunals together, there will be a better geographical spread of hearing centres, and the standard of accommodation will be improved over time.

New ways of resolving disputes without p.3 formal hearings will be developed

Legal Services Commission unlikely to improve control over Legal Aid System The Legal Services Commission (LSC) will find it extremely difficult to achieve improved management control over the legal aid system, said the Institute of Legal Executives (ILEX) in their response to the consultation paper ‘Draft Criminal Defence Service Bill.’ The reason is that the LSC will have no control over the factors that cause an increase in legal aid spending.

Sandra Barton, President of ILEX said: “We believe that it is unlikely that delegation of decision making to individual firms of solicitors’ will result in achieving more consistency in granting applications for legal aid. It will if anything, lead to greater inconsistency of decision-making. We prefer the legal aid assessment to be conducted by an independent agency, whether that is the court or the LSC.”

The creation of new criminal offences has resulted in increases in the number of cases entering the criminal justice system. Policies, which are being pursued by a number of government departments, are also having a major impact on the legal aid budget. If such policies are to be implemented, then due regard must be given to their impact on the legal aid budget and for those policies to be appropriately funded.

ILEX suggests that there could be an impact on access to justice in cases where clients are unable to produce documentary evidence to support their financial circumstances. The failure to provide this information may result in public funding being withdrawn and the risk that clients will be denied representation.

ILEX feels that this would contravene individual rights to access to representation as protected

by Article 6(3) of the ECHR.

ISSN 1468-926X

Features REPORT 4 KIBBLE Restrictions on Evidence or Questions about the Complainant’s sexual History- Criminal Bar Association sponsored research into the operation of Section 41

By Peter Rook QC CRIMINAL CASES REVIEW 6 THE COMMISSION The process of Seven Years On

By Leonard. H Leigh, Ph. D., Of the Inner Temple, Barrister, Member, Criminal Cases Review Commission ADVOCATES AND 8 SPECIAL SECRET EVIDENCE While the use of special advocates may enhance fairness in some cases, it would seem a dangerous development to allow their extension unchecked into all areas of administrative law

By Dr Eric Metcalfe, Barrister and Director of Human Rights Policy, JUSTICE REVIEWS 18 BOOK Reviews by Phillip Taylor MBE, Barrister, Book Reviews Editor, The Barrister

News p.30 Sir Peter Middleton to chair CEDR p.30 Government seeks views on warrant enforcements success rate p.30 Bar Council welcomes appointment of Linda Dobbs QC to High Court Bench

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jointly with departments, users and

p.1 representatives.

Back-office functions will be rationalised, providing unified case registration, processing, scheduling and disseminating of decisions. There will be common pathways through the process.

Users of the system will have better, standardised, information, including a website and information in plain English, with translations into a number of languages.

Appointment to Tribunals There will be a single judicial office for firsttier tribunals, and another for appellate tribunals - ‘tribunal judge’ and ‘tribunal appellate judge’ respectively. Judges will be assigned to a specific jurisdiction, but encouraged to sit in more than one, according to operational need. Candidates for appointment will be by recommendation from the Judicial Appointments Commission to the Secretary of State for Constitutional Affairs and a Senior President will lead the strategic development of the service.

Terms and conditions, training and appraisal of tribunal staff will be rationalised.

Particular mention is made of training in judgecraft skills for all judges and members.

This is seen as likely to evolve as new forms of dispute resolution are developed and members may need to learn mediation skills.

Tribunal rules and procedures will be simplified, with a statutory obligation to ensure accessibility, fairness and efficiency.

Adopting Sir Andrew Leggatt’s call for an overhaul of tribunal rules, a clearer, codified system will be developed by the DCA. The exception is for employment tribunal rules, which will remain within the Department for Trade and Industry (DTI).

Appeals On the whole, an appellate tier within the new tribunal structure is to be the norm, although the employment appeals tribunal will maintain its separate and distinctive identity. An exception to the two tier structure is the Asylum and Immigration Tribunal, from which there is no further appeal within the tribunal system. Other proposals include: A power for jurisdictional Presidents to review decisions, to avoid mistakes having to go to appeal.

An appeal will require permission, and generally be limited to points of law.

The development of precedents across tribunals.

An administrative appeals tribunal to be created from existing appellate tribunals The Court of Appeal will deal with appeals raising important points of principle or practice.

The role of judicial review will be limited to a refusal by the first and second tier to grant permission for an appeal.

A special section is devoted to employment and employment appeal tribunals. Here, there are proposals for early disclosure of information, and a belief that the experience of conciliation through Acas will bring a useful perspective to the new system.

Controversially, the paper suggests that all employment tribunal judges should have the power to act as a mediator.

Advice and Assistance There is an explicit expectation that people bringing or defending cases will receive little or no support or assistance and any extension of legal aid is ruled out. There is a recognition that good information and realistic advice are important– but this is seen as a role primarily for the voluntary and charitable sector (with some public funding available from the Legal Services Commission (LSC), DTI or local authorities). An Enhanced Advice Project is to be set up to pilot schemes for advice and assistance. While recognising that tribunals are similar to courts, ‘the hearings are intended to be less formal and adversarial in nature which ought in time to reduce the need for representation.’ It also asserts that the relevant law may be simpler and ‘there will rarely be a need for a party to concern themselves with technical evidential issues or to deploy the traditional lawyer skill of cross-examination of witnesses.’ In this, it is consistent with the Leggatt report findings. The White Paper aims to reduce the need for representation by alternative dispute resolution, improved advice and assistance for users, and better trained and skilled panel members. It concludes by stating that the present legal aid funding for tribunals is ‘about right for the current process’ but perhaps ominously suggests that ‘as the process changes, so does the need for support’.

IMPLICATIONS AND EFFECTS OF THE PROPOSALS Much of the White Paper makes uncontroversial good sense, building on the Leggatt report, but with a wider focus on users of the system. Particularly welcome are proposals to improve the decisions made by government departments so they are ‘right first time’, to introduce internal reviews of decisions to correct mistakes, and to improve complaints-handling. Similarly the proposals to integrate, streamline and rationalise the current ‘incoherent and inefficient’ tribunal structure and administration will bring many benefits to all concerned.

However, there are some proposals which need closer scrutiny, and a more critical approach. It is simply not good enough to assert that tribunal hearings are less formal and adversarial, or that the relevant law is simpler than in cases that go to court.

Employment tribunals are not only formal and adversarial, but the law – particularly

03

in discrimination cases – is increasingly complex and procedurally fraught. It is just not feasible for individuals or small employers to present a discrimination case adequately without legal advice or representation - and no evidence is cited to support the proposition that over time the need for this will diminish.

Without an extension of legal aid to enable users to assess and present their cases, the DCA is right to look at other ways of making it easier for people to use the tribunal system. Public legal education, access to relevant and user-friendly information and advice, simplification of the system and ADR all have a part to play.

But there is an underlying assumption that ADR is invariably good, and adversarial hearings necessarily bad. This mantra has become widespread throughout the civil justice system but is usually uncosted and unspecific in detail. At least there is an explicit recognition within the Paper that the costs of introducing the new services for dispute resolution are not known. In terms of the form of dispute resolution, there is little except good intentions. There are many different versions of ADR listed: Adjudication Arbitration Conciliation Early neutral evaluation Mediation Negotiation Ombudsmen There is no attempt to identify the most appropriate form of ADR, the criteria for suitable cases, the stage at which it would be useful, nor how to level the playing field to ensure cases are not decided by ‘might’ rather than ‘right’, due to an imbalance of power, information, and resources. To suggest training judges in mediation skills also begs some questions. The two roles require different – and contradictory – skills.

And, in view of the range of ADR options, why is mediation seen as the relevant one?

Further questions must be asked about the role of the voluntary and charitable sector in delivering the information and ‘realistic’ advice needed for tribunal users. Without additional funding, it is hard to see how this currently under-funded sector could – or should - bear the burden of responsibility proposed.

The White Paper rightly states it does not intend to be prescriptive at this stage, but consultation may be more valuable if more detail had been given on some of the above issues. In particular, the DCA should clarify the argument for ADR - and base it on benefits for users, not the Treasury.

By Allison Hannah, Director, Legal Action Group

04

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Restrictions on Evidence or Questions about the Complainant’s sexual History Criminal Bar Association sponsored research into the operation of Section 41 published on 20th July 2004 Committee.

By Peter Rook QC

T

he issue of the relevance and admissibility of previous sexual history evidence often provokes controversy. It has led to debates on the role of judicial discretion in this area, on the extent the courts can use the interpretative power conferred by section 3 of the Human Rights Act 1998, and above all how best to resolve the natural tension between protecting the complainant’s privacy and dignity and the accused’s right to a fair trial in a proportionate manner.

Over the last few decades many jurisdictions have adopted ‘rape shield’ legislation designed both to protect complainants from unnecessary humiliation and distress when giving evidence and to prevent the trial process being distorted by the ‘twin myths’ line of reasoning. The ‘twin myths’, as described in Canadian jurisprudence are ‘that unchaste women were more likely to consent to intercourse and, in any event, were less worthy of belief.’ There is an increasing acceptance that the scope for such improper lines reasoning should be eradicated. There is less consensus as to the legislative model most appropriate to achieve the right balance between protection of the complainant and a defendant’s right to a fair trial.

The present restrictions enshrined in Section 41 of the Youth Justice and Criminal Evidence Act 1999 are a result of a dissatisfaction of the Home Office, informed by a powerful body of academic opinion, with the operation by the courts of the previous regime brought into effect by Section 2 of the Sexual Offences (Amendment) Act 1976. The wording and structure of Section 41 suggest close attention was paid to recent Canadian and Scottish models. However there are very significant differences. On the face of the legislation there is no residual judicial discretion. Lord Steyn in R v A (No2), when the new provisions were considered by the House of Lords within a few months of implementation, stated:

‘Whilst the statute pursued desirable goals, the methods adopted amounted to legislative overkill.’ His observation mirrors the conclusion reached by the Hon.Mrs.Justice McLachlin in the Canadian case of Seaboyer when considering earlier Canadian legislation which amounted to a blanket exclusion: ‘ In achieving its purpose – the abolition of the outmoded, sexist based use of sexual conduct evidence – it overshoots the mark and renders inadmissible evidence which may be essential to the presentation of legitimate defences and hence to a fair trial. In exchange for the elimination of the possibility that the judge and jury may draw illegitimate inferences from the evidence, it exacts as a price the real risk that an innocent person may be convicted. The price is too great in relation to the benefit secured, and cannot be tolerated in a society that does not countenance in any form the conviction of the innocent.’

in many cases have arbitrarily excluded key matters for the jury’s consideration, and worse still have positively misled juries.

The Operation of Section 41 in the aftermath of R v A (No 2 ) Section 41 has led judges and practitioners alike to adopt a clinical structured approach where true relevance to an issue in the case is properly and carefully analysed. In so doing the defence have to seek to enter the narrow gateways and surmount the hurdles of the Section 41 regime. In many cases the regime, whilst unnecessarily over elaborate, does not pose problems in its operation, and truly relevant evidence will be admitted. However Section 41 continues to spawn problems in the trial of some sexual offences where credibility of complainant and accused is often allimportant.

R v A (No 2) has not opened the floodgates, but it has, by redesigning the similar fact gateway ( S41(3)(c)) , unshackled judges from a legislative straitjacket that might otherwise have led them to exclude truly relevant evidence on an arbitrary basis (principally in the context of sexual relationships between defendants and complainants) and thereby to have endangered the fairness of trials.

R v A (No 2) R v A (No 2) provided an opportunity for the House of Lords to consider the excessive breadth of the new provisions and to loosen the judicial straitjacket that the S41 regime had imposed upon judges. The virtual blanket exclusion of previous sexual history evidence between the complainant and the accused under Section 41(1), subject to narrow categories of exception, has as a result of the House of Lord’s intervention given way to the admission in trials, where appropriate, of logically relevant sexual experiences between the complainant and the accused.

Whilst evidence of previous,

RESULTS OF RESEARCH SPONSORED

BY CBA PUBLISHED ON 20th JULY 2004 Research has been undertaken into the operation of Section 41 by the courts during the post A(No 2) era. Neil Kibble, an academic at the University of Wales, Aberystwyth, whose writings on section 41 and rape shield legislation were

or subsequent, sexual behaviour of the complainant with third parties is irrelevant in most cases, far more cases are now being prosecuted where there has been a previous sexual relationship between the complainant and the accused than ever before. To reconstruct the parties in the eyes of the jury as strangers or people who had never enjoyed consensual intimacy together would

cited extensively in R v A (No 2), has been conducting the research at the invitation of the Criminal Bar Association of England and Wales (CBA). It was jointly funded by the association and the University of Wales. His research is an authoritative and valuable piece of scholarship. It involved interviewing 70 Circuit Judges and 4 High Court Judges who try serious sex cases,

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as well as 3 Lord Justices of Appeal and a Lord of Appeal in Ordinary. The interviews were semi-structured in that they included set general questions about the origins, structure and operation of Section 41 and about the judges’ perceptions of problems and issues in this area. They also included four scenarios to gauge judicial thinking on a range of issues surrounding the interpretation and application of Section 41.

It was important to obtain a fuller picture of judges’ reasoning on these issues than has been available hitherto so that the continuing debate on the relevance and admissibility of such evidence can take account of judicial perspectives. This is a classic case of a difficult area which needed balanced research by a distinguished academic, so that high quality research is available when the Government considers whether further legislation is needed.

Mr.Kibble’s research shows that the Government was wrong to adopt legislation in 1999 giving judges no discretion over whether or not to admit evidence of previous sexual history. That approach was fundamentally flawed, and such legislation can only operate fairly once the appellate courts have intervened and restored judicial discretion.

Significantly, the interviews with the judges show that the discretion restored by the House of Lords in R v A (No 2) in respect of previous sexual relations with the defendant himself has been applied restrictively. The strict requirements imposed by the legislation remain active, are consistently and rigorously applied by trial judges, and there has been no softening of the very tight regime regulating previous sexual history with people other than the defendant himself.

It follows from Mr. Kibble’s research that ill-founded claims by some politicians suggesting that trial judges are not enforcing the tight section 41 regime and are habitually allowing cross-examination as to irrelevant previous sexual history are simply not true. Such irresponsible suggestions can only do harm to the cause of victims who should not be misled into thinking that they will not receive proper protection at trial. Such myths should be exposed. Victims should be encouraged to come forward. The courts will protect them where appropriate. All who practice in this area will confirm Mr.Kibble’s conclusion that far from allowing questioning and evidence in relation to sexual history as a matter of course, judges approach the

issue thoughtfully and with an awareness of the dangers of admitting irrelevant evidence. The judges’ responses suggest that they are weighing the relevance of sexual history evidence in the circumstances of the case and determining whether the goal of achieving a fair trial for both defendant and complainant demands the admission or exclusion of the evidence. Both judges and advocates are exercising their responsibilities in a more thoughtful manner than is often depicted.

The Home Office itself commissioned research into the operation of Section 41 in the aftermath of R v A (No 2.). This research has been conducted

by Professor Jennifer Temkin of Sussex University, and is yet to be published.

In the meantime, Neil Kibble has also looked closely at models adopted in other jurisdictions. His extensive research shows that in the vast majority of cases where a non-discretionary approach has been adopted, the courts have either had to read down the legislation or declare a

05

blanket exclusion unconstitutional so as to ensure fair trial.This demonstrates that rape shield models that entirely eliminate judicial discretion tend to be unworkable in practice. The major flaw lies in an attempt to pre-determine relevance in advance. Where courts have to strain statutory interpretation to its limits so as to shoehorn truly relevant evidence into pre-determined categories in order to avoid arbitrary exclusion, there remains a high risk of uneven, unsatisfactory and potentially unfair application of the rape shield. It is to be hoped that Mr. Kibble’s conclusions are heeded before any change to section 41 is introduced. His full report is available on the CBA website: www.criminalbar.com.

Peter Rook acted as counsel for the defendant in the House of Lords case R v A (No 2) and is co- author of ‘Rook and Ward: Sexual Offences – Law and Practice.’ Sweet and Maxwell. 3rd edition to be published in September 2004.

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06

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The Criminal Cases Review Commission: Seven Years On

By Leonard. H Leigh, Ph. D., Of the Inner Temple, barrister, Member, Criminal Cases Review Commission

C

reated by the Criminal

It is not the function of the Commission,

procedures. There have, however,

Appeal Act 1995 and

as gatekeeper to the Court of Appeal, to

been a few cases which, in my view, the

brought into operation

revisit findings of fact made at trial. The

Commission should not have referred:

as of April 1, 1997, the

Commission must conclude that by reason

Knighton and Hakala are examples. The

Criminal Cases Review

of new evidence or argument there is a real

Commission learns from these: it has

Commission is now an

possibility that the conviction or sentence,

adopted a system of monthly assessments of

established criminal justice institution whose

if referred, will be quashed by the appellate

Court of Appeal judgments in Commission

functions are four-fold; to investigate alleged

court. Critics assert that the Commission

cases.

miscarriages of justice both in relation to

should work to a lower standard, perhaps

conviction and sentence and to refer them,

that of possible miscarriage of justice, or

where appropriate, to an appellate court,

“lurking doubt”. This criticism is misplaced:

to investigate matters referred to it by the

the Commission can only work to the

The past seven years have revealed

Court of Appeal, to inform the criminal

standard which applies to the Court of

imperfections in the provisions of the

justice system as a result of its experiences

Appeal itself, namely, whether a conviction

Criminal Appeal Act 1995 relating to the

and to help to sustain the integrity of

is unsafe. It would be pointless to refer cases

Commission. The Commission cannot at

the criminal justice system. The first two

on any other basis. In any event, even in

present deal with convictions made before

functions are statutory. The latter two may

Scotland where the wider “miscarriage of

Service courts. The Commission has no

be regarded as useful by-products of the

justice” formula applies, the Courts have

compulsory powers to obtain evidence from

system.

intimated that their Commission should act

overseas. It must rely on co-operation from

on similar considerations.

foreign authorities and such authorities

Didactic accounts of the workings of the

Challenges and responses

are often constrained by civil liberties

Commission may be found elsewhere. I

Even where the conditions noted above are

inhibitions contained in their own laws. The

propose to say something about the record

satisfied the Commission has a discretion

Home Office has agreed in principle that

of the Commission and then to look into the

not to refer a matter to an appellate

these anomalies must be rectified. A third

inevitably cloudy crystal ball both to see

court. The statute does not indicate what

problem concerns obtaining information

what challenges the future may bring, the

factors may be relevant in reaching such

from bodies in the private sector. Section

inhibitions and opportunities which such

a decision. The issue of discretion is at the

17 of the Criminal Appeal Act 1995 enables

challenges may present and the manner

time of writing about to be further tested

the Commission to obtain information

in which the Commission may respond to

in the Divisional Court and it would seem

compulsorily from public bodies but it

them.

inappropriate at this juncture to address the

confers no such powers in respect of private

issue further.

individuals and bodies some of which

The Commission is, by statute, a multi-

perform regulatory functions in the public

disciplinary body with a wide jurisdiction

The Commission prides itself on the

interest. Here, we are dependant on the

which investigates the safety of convictions

thoroughness with which it approaches

goodwill of individuals and institutions some

and the legality and propriety of sentences.

cases which present real issues for

of whom are themselves subject to privacy

It is thus not an “Innocence Commission”,

resolution. Despite this there are inevitably

considerations. Particular difficulties arise

to use a phrase current in American

referrals which result in unsuccessful

with telecommunications providers. Since

debates on the topic. It follows that in

appeals. The Commission does not work to

the Act was passed in 1995 there has been a

a number of cases the applicant is not

a rule of certainty. “Real possibility” implies

process of creeping privatisation which has

asserting that he was innocent but rather

that there are cases which the Commission

further exacerbated the problems.

that he was convicted of the wrong offence,

recognises are not clear-cut but which, in

murder instead of manslaughter or that

its judgment, require the Court’s attention.

The inconveniences of the Act do not end

his conviction was procured by official

There are, for example, cases in which

there. While confidential information can

misconduct such that he should not have

plausible witness accounts and expert

be passed to other criminal justice agencies

been tried at all.

reports need to be subjected to adversary

in England, Wales and Northern Ireland,

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07

it cannot be passed to agencies in Scotland

attracted members of high standing but it

another story for another day and another

or abroad. The Commission could not, for

has not attracted many good applicants from

author.

example, pass information compulsorily

the criminal bar. For this there are several

acquired from an agency in England and

reasons. First, appointments are time limited

Wales to the Chief Constable of Strathclyde.

and so not necessarily attractive to many applicants who are not already in a position

These matters are under study at Home

to apply for judicial office. Secondly, the pay

Office level. Some await the introduction

and pension arrangements are not attractive

of legislation to the theme of which they

when compared with District Judges. Official

relate. The notion of thematic unity is no

recognition of the standing of Commission

doubt familiar in literary criticism but its

Member appointments and of the significant

invocation in this context by the Home

work that the Commission does would, in

Office is novel. One fears the subterranean

my opinion, be helpful in augmenting the

influence of the doctrine of unripe time.

numbers of well-qualified applicants.

Some matters have been addressed. The

Finally, have we helped to sustain confidence

Court of Appeal will, in future be able to

in the criminal justice system? I would

direct the Commission to investigate a

affirm that we have. To date 241 convictions

matter at leave to appeal stage. This should

and sentences or approximately 35 cases

help to ensure that miscarriages of justice

per annum have been referred to appellate

will not arise. A person whose conviction

courts. In any given year 25 times as many

or sentence has been referred will in future

cases have been rejected as presenting no

have to seek leave before arguing any

provable miscarriage of justice and of these

point upon which the Commission has not

the vast majority can be shown not to have

made the reference so ensuring that some

involved a miscarriage of justice at all.

appellants will no longer be able to take

This gives the lie to the assertion that the

palpably bad points thus prolonging the

prisons contain large numbers of wrongly

appeal process. The ability to secure leave

convicted individuals. At the same time the

will serve as a safety net.

Commission offers an assurance to persons wrongly convicted that their cases will be

Any future budget cuts as a result of the

dealt with fairly, objectively and speedily.

squeeze on public spending could well

Overall the criminal justice system works,

inhibit the Commission’s ability to deal

perhaps better than it should. But that is

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

speedily and effectively with its case loads.

Projections suggest that such cuts would, over a relatively short space of time, result in waiting lists (now virtually eradicated) which will be measurable in terms of years. Certain results are readily foreseeable; delays to applicants, judicial review proceedings to force action to be taken which in themselves take up resources which could otherwise be devoted to casework, and distortion of priorities as cases of immediate public concern such as sudden infant death cases jostle for attention with matters which are less politically sensitive but nonetheless of prime importance to applicants. There will be little time to take up issues of law reform which form a limited, unsung, but I would affirm important part of our work.

And there is a question of recruitment of Commission Members. The Commission has

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08

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Special Advocates and Secret Evidence

By Eric Metcalfe, Barrister and Director of Human Rights Policy, JUSTICE

T

he use of secret evidence

Secretary wanted to deport, among other

has something of a poor

reasons, because of his alleged involvement

Besides SIAC cases, the use of special

reputation in English law.

in Sikh terrorism. For himself, Chahal

advocates was subsequently authorised

The idea that someone

claimed that if returned to India, he would

by Parliament in proceedings before

could be imprisoned – for

likely be tortured by the Punjabi authorities

the Proscribed Organisations Appeal

instance – without having

concerning his role as a Sikh activist. His

Commission (‘POAC’), the Pathogens

the opportunity to challenge the evidence

complaint to Strasbourg was that, although

Access Appeal Commission (‘PAAC’), the

against them has never been a wildly

judicial review was available to challenge

Employment Tribunal (when hearing race

popular one, but the infamous reputation

the Home Secretary’s decision, the effective

discrimination claims from government

of Star Chamber in the days of James I and

determination was by an internal Home

employees in fields relating to national

Charles I helped to cement the idea that

Office advisory panel (the so-called ‘three

security) and 2 specialist Northern Ireland

holding secret hearings of evidence in the

wise men’ procedure) that met in private

Tribunals.

absence of an accused was generally a bad

to consider sensitive intelligence material,

thing.

before which the appellant was not represented. The Strasbourg Court agreed

What is more novel has been the adoption

that the existing procedure was unfair

of this procedure by the higher courts to get

It seems ironic, then, that the use of special

and noted the submissions of Amnesty

around the potential unfairness of ex parte

advocates – a procedure that was introduced

International, Liberty and other human

applications by the prosecution against

originally to avoid the unfairness of such

rights NGOs that one way around the

disclosure of relevant evidence on public

secret hearings – has now become closely

problem of conducting hearings involving

interest grounds. Originally the government

associated with them. A ‘perversion of

the use of sensitive intelligence material

had opposed this development, but it was

justice’ was how the proceedings of the

would be to follow the Canadian model of

approved in this particular context in 2003

Special Immigration Appeals Commission

using security-cleared counsel who might

by the Strasbourg Court in Edwards and

(‘SIAC’), in which special advocates play

challenge the evidence relied upon by the

Lewis v United Kingdom and in February

a large part, were described by Amnesty

government in closed sessions on behalf of

2004 by the House of Lords in H and C. Both

International in December 2003. And in July

the appellant.

courts noted that such a procedure was

2004, the appointment of a special advocate

highly exceptional, but nonetheless could

by the Parole Board to consider secret

be adopted to enhance the fairness of the

evidence was likened to the US treatment of

Accordingly, SIAC was established by the

proceedings in respect of an accused (who

detainees in Guantánamo Bay. And yet the

1997 Act, making provision for the use of

would otherwise be unrepresented in public

use of special advocates in certain kinds of

‘special advocates’ who would be appointed

interest immunity hearings).

proceedings has been approved by both the

by the Attorney General to represent an

House of Lords and the European Court of

appellant’s interests in relation to closed

Human Rights. How to explain this apparent

proceedings (i.e. proceedings involving

A far more unfortunate development is the

discrepancy between official approval and

evidence too sensitive to be disclosed

recent judgment of the Court of Appeal in

public approbation of special advocates?

to the appellant for reasons of national

Roberts v Parole Board, in which JUSTICE

security). Although a special advocate would

intervened. The decision of the Court raises

be appointed to represent an appellant’s

serious concerns about the accountability of

The truth is a twisted affair. Special

interest, it was specifically provided that an

inferior tribunals such as the Parole Board

advocates are a recent innovation in English

advocate “shall not be responsible to the

adopting procedures that severely impact

law. They were first introduced by the

person whose interests he is appointed to

the right to fair proceedings.

Special Immigration Appeals Commission

represent“, in view of the difficulties that

Act 1997, following the judgment of the

might otherwise arise from the special

European Court of Human Rights in Chahal

advocate not being allowed to discuss the

0n Roberts, the Parole Board was

v United Kingdom the previous year. Chahal

closed evidence with the appellant.

considering the parole of a 68-year old

was an Indian national whom the Home

mandatory life prisoner who, until recently,

the barrister

09

had been housed in an open prison. In

fair proceedings in general. While the use

a need for special procedures, it should at

the course of its deliberations, the Board

of special advocates may enhance fairness

least ensure that they are adopted openly

received secret evidence from the Secretary

in some cases, it would seem a dangerous

and not by stealth.

of State on the basis that the evidence

development to allow their extension

would not be disclosed to Mr Roberts or his

unchecked into all areas of administrative

lawyers. It was at this point that the Parole

law. If it would be permissible for the parole

Board sought to appoint a special advocate

board to use them in relation to parole

who would act on Mr Robert’s behalf in

hearings, then it is not hard to imagine

respect of the secret evidence but who

situations where other tribunals faced with

would not be directly responsible to him.

claims of sensitive evidence might seek

An earlier High Court ruling upheld the

to invent similar procedures – a revenue

Parole Board’s decision as lawful. The main

hearing considering material from a covert

issues on appeal, then, were (1) whether

source, for instance. If there is a case for

the Parole Board had the statutory power

using special advocates in such situations,

to adopt a special advocate procedure; and

then it does not help that that case is being

(2) whether the use of a special advocate in

made by unelected officials on the basis

such proceedings was compatible with the

of undisclosed evidence. On the contrary,

appellant’s Convention rights, chiefly Article

the more exceptional the procedure, the

5(4) ECHR.

greater the need for express parliamentary approval. For if a democratic society has

The obvious difference between the Parole Board decision to appoint a special advocate and other cases is that the Parole Board is not a higher court (with the kind of jurisdiction that would allow it broad powers to adopt new procedures) nor did it have express parliamentary approval to do so (i.e. unlike the other 6 administrative tribunals that have used special advocates).

Instead, the Court of Appeal fell back on the vague language of the 1991 Criminal Justice Act to justify the Parole Board’s appointment. In doing so, the Court of Appeal was apparently untroubled by the

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lack of any specific democratic sanction for an inferior tribunal adopting such an exceptional procedure, and similarly unperturbed by what would seem to be a plain distinction between the use of special advocates to help determine preliminary matters (as approved by Strasbourg and the House of Lords) and using them to assist in determining the core issues in proceedings.

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10

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What should be expected from today’s online Chambers Management Systems.

David Randall, Managing Director of Formation Software takes a practical and pragmatic look at what barristers and clerks need from their Chambers Management System. In this special report for The Barrister, he looks at the historical context behind these requirements and provides a check-list to assist anyone reviewing their chambers software solution.

“

Designed to play a key organisational function, a Chambers Management System has two essential constituent parts. It is both a multi-barrister legal diary and a billing solution enabling the financial management of cases. While in practical terms a Chambers Management System will mean different things to different people, depending on the specific emphasis of the work in question, these two elements are pivotal to the solution.

“Looking back at the implementation of IT in chambers, the profession’s utilisation of technology has, to a large extent, mirrored the wider business picture.

“Most small to medium sized enterprises adopted computers in the late 80’s as standalone technology devices purchased to run a specific line-of-business application. And, once the technology ball was rolling, a paperless office soon became the vision for most organisations and the ‘PC per desk’ and corporate network evolved that we all take for granted today.

“Where previously people’s daily work tended to be taken to the IT mountain for digestion and analysis, it now came to every user’s desktop and this development opened up a world of direct access computing for all.

“With the spread of desktop PC’s came a ubiquity of software applications and office computing soon developed beyond its original specialised functionality to process and communicate our words and calculate our sums.

“As such, in today’s contemporary business environment, it is now perhaps easier to list the activities not performed with your PC than those that are.

“With this explosion of software applications, a fair assumption would be to find a generic business application for chambers. However, while chambers have certain parallels with other industries, it soon becomes clear that this unique business model demands a specialist software solution.

“The established and sophisticated nature of chambers presents a challenging scenario for software solutions providers. The selfemployed status of barristers, combined with the facilitation and management role of clerks, sets the environment apart.

Individual barrister accountability is required within a highly structured setting and anyone addressing the needs of the profession can see that the industry works in a distinct manner. It has therefore been recognised by system users and solution providers alike that off-the-shelf, generic finance packages do not provide the flexibility required to be configured to meet the precise needs of this highly individual and specialised application.

“As computer systems continue to evolve, our sights are generally set a little higher than yesterday’s baseline and we should consider ‘convergence’. Initially, we had isolated pools of data and processing, and then we had mass computing with many computers running many applications enabling interactive IT communication.

“Our new horizon is what Bill Gates termed the ‘digital nervous system’ where each piece of software is a smaller piece of the bigger IT jigsaw. As such, we see discrete elements of the computing solution working alongside other elements to provide flexibility, scalability and resilience. The communication model becomes finer as each software application starts to become aware of its function and communicates directly with its peers.

“If this sounds a little too ‘Tomorrow’s World’ and you find this hard to apply to the chambers environment then consider the Internet. Can you define it? Is it one application? Where is it and who owns it? The Internet is in fact a convergent application; albeit a massive one that exists through the definition of open technology standards and today’s Chambers Management System needs to sit within this wider context.

to benefit the wider business community and are perhaps the first signs of the software industry reaching maturity.

“Ignoring the purist notion that an open standard must be community owed and committee led, practical open standards are those standard technologies that are well enough defined and supported to allow the inter-operation of many software applications. And the real sea-change behind open standards gaining priority is the establishment of ownership of data by users, rather than software vendors.

“Like any other effective business IT solution, Chambers Management Systems should be built using these open standard technology components and anyone adopting a chambers solution should establish that it runs on these technologies to confer the benefits of well-proven and reliable components.

“Open standards based solutions avoid the proprietary pitfalls of the software industry’s ‘Wild West’ and provide a solid framework for future-proofing your business and safeguarding your investment.

Chambers Management System specifics: “Having painted the broader picture against which Chambers Management Systems should sit, we turn to address a number of specific features to be taken into consideration when upgrading, renewing or replacing your chambers software: Resilience – do standard components underpin the system to deliver a reliable and robust foundation for your application?

Will these components continue to evolve to meet whatever technical challenges and opportunities lie ahead?

Practical open standards: “Open standards are a hugely important development in IT that have evolved

Flexibility – can your system be configured to meet your current business needs, and will it provide enough flexibility of

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the barrister BarristerMag_ad_a/w 3/9/04 2:34 pm Page 1

configuration and inter-operation with other systems to keep up with your business?

Scalability – can your system cope with change as your business and the wider business community changes? In the event of a merger, could your solution cope with ten times the volume of business split across a number of different locations?

Cost of ownership – a big factor in any application is the real cost of ownership to keep it running. How long does it take to get a new user up and running? Will you be able to upgrade your server without complication?

Remote access – office based working is just one element of today’s busy chambers.

Increasingly the necessity of working from outside chambers, and the recognised advantages of home-working, mean that secure yet simple access, and ease-of-use from every environment, is essential. When someone wants to work remotely, will they be able to use the solution in exactly the same way as they would in chambers.

The Inner Temple’s eagerly awaited Pegasus Bar, Restaurant and Terrace is now open. This exciting new concept is an ideal place to enjoy an alternative lunch, classic afternoon tea, coffee, drinks, cocktails or a leisurely supper.

Support – will you get the support you need when you need it? How large is the support team, is there a dedicated query hot line and how flexible is the supplier regarding site visits?

Functionality – does the diary provide a simple, intuitive interface that gives key chambers personnel the information they need both quickly and efficiently? How easy is it to drill-down, or drill-through, to related information? Does the system meet the distinct demands of your clerks, barristers and practice manager?

“Concluding this report for readers of The Barrister, those implementing Chambers Management System solutions should not be overwhelmed by the considerations that have been advised. Having understood the benefits of integrated IT solutions, most supplier questions should be covered when entering a partnership relationship and more detailed technical answers will be forthcoming from any professional service provider.

“Most importantly, anyone considering a Chambers Management System should ask whether the solution meets their precise needs: remember open standards and avoid a technology-based compromise.”

David Randall Telephone 0116 225 2000 Facsimile 0116 225 2001 Email david@formsoft.com

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the barrister

13

Partners in Crime?

There was widespread hostility from the solicitors’ profession earlier this year, towards the Government and the Senior Bar, when the Lord Chancellor announced a deal for the Bar worth £17 million under the Very High Cost Criminal Case regime. Why was there such hostility? And was it justified?

By Richard Miller, Director of the Legal Aid Practitioners Group

T

he perception in the solicitors’ profession was coloured by the fact that for years, solicitors have made very strong arguments to the LSC on a range of issues, both in relation to the failure to increase remuneration and to cuts in important services to vulnerable clients, only to be met with the response that no matter how strong the arguments, the LSC simply does not have the money to make the changes the profession wanted.

During the course of this year, the DCA and LSC have implemented deep cuts to the police station advice scheme and to the availability of advice and representation in the Magistrates’ Courts. These were introduced on the basis that they might save around £14 million in year one, according to the consultation paper “Delivering value for money in the Criminal Defence Service”.

Many solicitors considered these estimates to be significantly overoptimistic. CDS Direct is a proposal that will remove advice from a local solicitor for many suspects detained in the police station. The LSC acknowledged that it would reduce the quality of service to those affected. It was promoted unashamedly as a cost-saving measure; yet the main savings would come from a direct cut to solicitors’ income without a commensurate cut in their workload.

The proposed reintroduction of a means test was intended to make further savings, estimated at anywhere between £25 million and £93 million. This change will place a substantial administrative burden on solicitors. Moreover, the Constitutional Affairs Select Committee considered that “the only model which does not require contributions to be collected imposes an arbitrary cut off point, based on an undefined notion of gross ‘household income and capital’, and takes no account of defendants’ expenses. We consider there to be a significant risk that defendants who could not in practice afford to pay for their own legal representation would be denied representation under these proposals, even

if the interests of justice required them to be legally represented, leading to the possibility of a challenge under the Human Rights Act.” The LSC has now announced that equity in people’s homes will be taken into account when assessing eligibility for legal aid. At a stroke, the majority of homeowners and most ancillary relief cases will be taken out of scope of legal aid. All of these changes are justified by the LSC and DCA on the basis that they need to make savings. Most of them are strongly opposed by solicitors.

Every time, we are told that the cuts are unavoidable because of the current budgetary situation.

The same response greeted suggestions that an increase in remuneration rates was needed to address the drop in the number of new cases started from around 690,000 in 2002-3 to barely 580,000 in 2003-4.

It was in this context that solicitors heard the news that an extra £17 million had been found to increase barristers’ incomes.

The details of the package did nothing to allay a sense of deep injustice. In particular, having been told that the scheme was designed to pay junior barristers supporting a leader a sum that would equate to annual earnings of £80,000, we learnt that the lower rates for barristers of up to five years’ call were to be scrapped. Most in the solicitors’ profession, many of whom will never see £80,000 in their lives no matter how senior and how expert they become, were aghast. If newly-qualified barristers won’t work unless they can charge enough to earn £80,000, at a time when desperately needy people are having services taken away from them, and senior solicitors are struggling to maintain services on earnings substantially less, the system cannot afford them. Just for a moment, many solicitors considered the stereotypical image of the fat cat who cares nothing for the clients to be wholly justified.

The representative bodies also felt aggrieved. Most of them, including the Law

Society and the Legal Aid Practitioners Group, had accepted the need to find better ways of working within the existing financial constraints. They had dismissed suggestions that industrial action should be taken; on the basis that constructive dialogue was far more likely to achieve progress than militancy. Yet within a couple of weeks of the Bar organising a boycott, the Government caved in and increased their remuneration. How could anyone ever again argue against the militant voices on our side of the profession?

Suggestions from the Bar that the two sides of the profession should fight together rang hollow. When has the Bar ever stood up for solicitors, people asked? (To be fair, the representatives of the Bar stood up very strongly for solicitors at the Constitutional Affairs Committee’s enquiry into the Criminal Defence Service Bill.) Explanations from the Government and the LSC were dismissed as so much sophistry, and even the subsequent announcements of increased rates for legal help, for housing work and for serious duty solicitor cases did little to mollify solicitors.

So to what extent was there justification for what the Bar did and for the DCA’s position?

The background to this controversy lay in proposals from the LSC to bring all high cost criminal cases under a contracting regime, in order to give them more control over the costs and to reduce the sums paid to barristers. After years of squeezing solicitors in their day-to-day work, attention was finally being turned to the cases that were responsible for disproportionate amounts of the legal aid spend. The size of the cuts being proposed was significant. It was limited compared with what solicitors have been through, but it was being introduced in a single measure, rather than over a period of years – a clean amputation instead of a thousand cuts. In that context, it is unsurprising that barristers working on such cases considered the cuts to be unduly savage. The result was the boycott.

The Bar is a fraction of the size of the

14

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solicitors’ profession. Solicitors who wish to take militant action always have the concern that there will be those who see a business opportunity and are happy to break ranks.

Moreover, a single substantial cut in direct income is an easier target than a series of cuts that only have a cumulative impact over time. The Bar managed to hold the line to a sufficient degree to worry the Government, which felt obliged to make concessions.

Clare Dodgson describes the outcome in Focus 45 thus: “We have arrived at an agreement which will continue to deliver a significant reduction in the cost of VHCCCs and improved control over future spending.

The agreement will reduce the level of savings from that originally estimated, but I must stress that the result is a reduction in savings and not an increase in remuneration.”

There is, though, a major flaw in this logic.

This year’s budget was predicated on the original level of savings. Even on that basis, there is a hole in the LSC’s finances. In the recently issued consultation paper, “A new focus for civil legal aid”, the LSC states,

“There is serious pressure on the CLS budget and the savings which the measures in this consultation will achieve should enable us to avoid other savings.” Off the record, some in the Commission feel that even before the VHCCC deal, these savings would not deal with the problem, and that the deal just made it even worse.

The Constitutional Affairs Committee agrees that further savings need to be made from the sums spent on Very High Cost Cases. In their report into the proposed reintroduction of means testing, the Committee states, “Over the course of our inquiry, we have been told by a number of witnesses that there are better ways of controlling spending on criminal legal aid than reintroducing means testing and transferring responsibility for grant. We recommend that the Department should focus more of its efforts in other areas, such as reducing expenditure on the most expensive criminal cases, which consume a disproportionate amount of the Criminal Defence Service budget. We recognise that the Department has made some progress in this area, but believe that further savings could be found.”

Over the medium term, such savings have to come from reforms to the prosecution process and the management of these cases.

There is a limit to how far the Government can make savings solely by slashing defence lawyers’ fees, whether those lawyers are solicitors or barristers. Hopefully both sides of the profession can work together to push this argument.

But for most solicitors, for now, the bottom line is that, although the Bar undoubtedly did have a valid case, it was no stronger nor more deserving of being addressed than the arguments put by solicitors, on their own behalf and on behalf of clients, over many years.

Richard Miller is Director of the Legal Aid Practitioners Group

the barrister

15

Reasonable Royalties in the Absence of Comparable Licensing Transactions

By Michael Taub, National Head of Forensic Services for Baker Tilly and Gregory J. Urbanchuk Senior Manager in the Forensic Services Group of Baker Tilly

W

e are often asked

other factors including the economic factors

ings). A licensing agreement provides the

to provide expert

associated with a hypothetical licensing

opportunity for a patent holder to transfer

evidence as-

negotiation.

these benefits to the licensee in return for

sociated with the

compensation (i.e., royalties). For example,

quantification of

In many cases, the absence of comparables

a licensor may enter into the licence agree-

damages arising

leads to reliance by experts on so called

ment for the purpose of introducing its pat-

from intellectual property disputes. In this

“rules of thumb”. The most famous of these

ented technology into geographical regions

article, we consider some of the factors

is Robert Goldscheider’s “25% Rule” which

which it is unable to service.

surrounding the quantification of a “reason-

imputes a royalty rate based on the assump-

From the licensee’s perspective, a licence

able royalty” in the absence of comparable

tion that a licensee would be willing to pay

agreement allows for the acquisition of pat-

licence transactions. For simplicity, in the

a royalty equivalent to 25% of its expected

ented technology which may provide a tech-

remainder of this article we refer to the

profits from the use of the intellectual prop-

nical advantage and in turn higher profits.

holder of an intellectual property right as a

erty. However, it is unclear what measure of

patent holder.

profit (e.g., gross profit, net profit, or operat-

A licensing negotiation is likely to occur

ing margins) the 25% should be applied.

within a range that is determined by the

Under English law, a claimant in a dispute

The use of such rules, without an analysis of

parties’ estimates of the economic value of

relating to the alleged infringement of intel-

the economic factors of a licensing transac-

the patent in question. The range is gener-

lectual property rights (e.g., patents, trade-

tion, is speculative at best. As indicated by

ally subject to a floor, which can be calcu-

marks and copyrights) has a choice of two

Mr. Goldscheider, “the Rule is best used as

lated by reference to the present value of the

remedies for compensation as follows:

one pricing tool and should be considered

following:

in conjunction with other (quantitative and An enquiry as to damages; or

qualitative) factors that can and do affect

The licensor’s cost of transferring the pat-

An account for profits.

royalty rates”. Accordingly, whilst rules of

ented technology to the licensee, which may

thumb on their own may not be sufficiently

include engineering, legal and accounting

Should it choose the former, a likely com-

robust, they may provide some assistance in

costs, among others; and

ponent of its claim will be a “reasonable

arriving at a reasonable royalty rate.

The licensor’s foregone profits (i.e., opportu-

royalty.” This would normally be quantified

nity costs) associated with the licensee’s use

as the amount a willing licensee would pay a

Having established that rules of thumb are

willing licensor for the right to make, use or

not sufficient in themselves to arrive at a

sell a patented item in the marketplace. In

reasonable royalty rate, it is essential to

The range is also subject to a ceiling, which

practice, this is often quantified by reference

consider the economic and financial factors

can be quantified by reference to the lowest

to comparable licensing transactions (the

surrounding the relative bargaining posi-

of the present values of the following:

“market approach”).

tions of the licensor and licensee.

of the patented technology.

The licensee’s incremental profits from the In our experience, the courts place sig-

In this context, the legal rights conferred

use or sale of the patented invention;

nificant weight on the use of the market

by a patent may provide future economic

The costs of obtaining similar technology

approach. However, on many occasions,

benefits to the patent holder. These benefits

(i.e., non-infringing substitutes) from an-

comparable licensing transactions do not

are quantified by reference to the profits at-

other source;

exist for the intellectual property in ques-

tributed to the patented technology (whether

The cost of designing around the patented

tion. Accordingly, an expert must consider

derived from increased revenues or cost sav-

technology; and

16

the barrister

The cost of obtaining the technology through

item drives the sales of other non-patented

royalty analysis it is necessary to understand

infringement.

items (i.e., collateral or convoyed sales).

and analyse the factors affecting the likely

The duration of the patent and term of the

negotiating range of the parties entering into

These factors provide a framework for iden-

licence.

a hypothetical negotiation. The qualitative

tifying the range in a licensing negotiation

The established profitability, commercial

and quantitative results of these analyses

on a non-contentious basis. However, in the

success and popularity of the product incor-

are likely to result in a reasonable royalty

context of litigation certain of these factors

porating the patented technology.

analysis that is robust and reflects the rela-

may not apply. For example, in an enquiry

The utility and advantages of the product

tive strengths and weaknesses of the parties

as to damages, a claimant cannot recover

incorporating the patented technology over

entering into the hypothetical negotiation.

both reasonable royalties and lost profits on

older technology or products performing

the same unit. Accordingly, it is not typically

similar functions.

Michael Taub is a Partner and the National

necessary to address the licensor’s forgone

The nature of the patented invention, its

Head of Forensic Services for Baker Tilly.

profits when considering the negotiating

commercial embodiment and the benefits to

Michael can be reached via email at

range. In addition, for obvious reasons, the

those who have used the invention.

michael.taub@bakertilly.co.uk. Gregory

cost of infringement is also not relevant in a

The extent to which the infringer has made

J. Urbanchuk is a Senior Manager in the

litigation environment.

use of the patented technology.

Forensic Services Group of Baker Tilly and

The customary portion of the profit or selling

specialises in the quantification of damages

Consideration of the negotiating range may

price that allows for the use the patented

surrounding intellectual property disputes.

provide a broad indicator of the maxi-

technology.

Gregory can be reached via email at

mum royalty a licensee is likely to pay (i.e.,

The portion of the realisable profit attribut-

gregory.urbanchuk@bakertilly.co.uk

the ceiling) and the minimum royalty the

able to the invention as distinguished from

licensor is likely to accept (i.e., the floor).

non-patented elements, improvements

However, in order to narrow the negotiat-

added by the infringer, among others.

ing range and determine the likely level of

The opinion of qualified experts.

royalty that would have arisen in practice,

This factor represents the hypothetical nego-

it is often necessary to consider additional

tiation between the parties and incorporates

factors. In Georgia-Pacific Corp. v United

the information from the previous fourteen

States Plywood Corp., the US court identified

factors. It essentially answers the question

15 factors associated with the determination

of the amount the parties would have agreed

of a reasonable royalty rate which we sum-

upon if they had been reasonably and volun-

marise as follows:

tarily trying to reach an agreement.

Consistent with the United Kingdom,

The royalties received by the patentee, if

these factors emphasise the importance of

any, associated with licensing the technology

comparable licence agreements. However,

incorporated in the patent in suit.

a majority of the factors addresses criteria

The royalties paid by the licensee for the use

that can be considered in the absence of

of other patents comparable to the patents

comparable licence agreements. Whilst

in suit.

not an exhaustive list, the Georgia-Pacific

The nature and scope of the prospective

Factors nonetheless incorporate many of the

licence including whether the licence is

major economic considerations included in a

exclusive or non-exclusive and restricted or

reasonable royalty calculation.

non-restricted (e.g., in terms of territory).

The licensor’s established licensing policy

In conclusion, the quantification of reason-

and marketing program with respect to

able royalties in the absence of comparable

protecting its patented monopoly (i.e., not

licensing transactions is laden with difficul-

licensing the technology).

ties. Failure to consider the economic fac-

The commercial relationship between the

tors inherently associated with a hypotheti-

licensor and licensee, which may include li-

cal licensing negotiation or over reliance on

censor and licensee, inventor and promoter,

rules of thumb could result in unrealistic

or competitors.

royalty rates. To minimise this risk and

The extent to which the sale of a patented

ensure the robustness of a reasonable

18

the barrister

CORPORATE LIABILITY: Work Related Deaths and Criminal Prosecutions General Editor: Gerard Forlin QC, Editor: Michael Appleby. With 15 Specialist Contributors LexisNexis Butterworths. ISBN 0-406-93176-3. Price: £125 Reviews by Phillip Taylor MBE, Book Reviews Editor, The Barrister

I

A TOPICAL APPROACH TO CORPORATE LIABILITY

This book is an amazingly detailed and well-researched series of fifteen individually written chapters put together by Gerard Forlin, barrister, and Michael Appleby, solicitor. As readers of ‘The Barrister’ will recall from past reviews, we have observed a number of books in this area of the law in recent years. It is clear that the subject will not go away: corporate liability continues to fascinate both politicians and the legal profession even though little appears to have been done... hence another book – this one is different.

A “Compensation” Culture The problem which is highlighted in this comprehensive work by Forlin and Appleby, and their colleagues, is the continued failure to deal with some of the issues properly by Parliament. Work related deaths and the compensation culture would appear to be becoming a serious item on the political agenda of all parties, so the book comes at a time of heightened debate and argument.

The Specialist Chapters A good use is made of the specialist chapters written by experts in the field who are listed at the beginning of the book.

These expert contributors show just how much learning has gone into this project and Forlin joins everything together in a logical and concise way.

Lord Cullen’s Foreword is rather short but he rightly describes this book as a valuable resource. In the thirty years of the development of health and safety legislation, increased emphasis has naturally been placed on the legal responsibilities of companies for managing the safety of their workforce and anyone else who may be affected.

Cullen writes ‘it is clear that there are

matters in regard to which legal regulation has to be prescriptive in its demands’ and that the ‘law has to provide sanctions for clear failures in the management of safety’ commenting that ‘in this respect the law has perhaps not been fully effective’. His Lordship is spot on here. What makes “Forlin and Appleby” such a good read is the comprehensive nature of the work itself, in one volume, dealing, as it does, with a topical and very important area of law which affects us all in our day-to-day lives.

The International Perspective I was particularly impressed by Chapter 15, which covers the international perspective.

Death resulting from accidents at work, and which have been caused by the failure of corporations to ensure safe working conditions and practices, is now the subject of increased international scrutiny by legislators.

Many examples are given of the world’s worst industrial accidents and this has inevitably led to the imposition of more stringent controls over workplace activities such as those at Seveso, Meda, Bhopal and Chernobyl. Victoria Howes and Professor Frank B Wright wrote the chapter and cover the following countries: the United States of America (with inter state comparisons); Australia; Canada; France; Italy The Netherlands; Germany; Finland; Sweden; Norway; and Denmark. Perhaps anti EU people might like to reflect that we all live on the same planet and have similar problems to face on corporate liability!

The work comprises the following which provides invaluable advice on both practice and procedure for: sentencing; practical issues of corporate liability; the investigation through the police process; the construction industry; railways; roads; aviation; shipping; chemicals; oil and gas industries; health care; waste; environmental issues; and the ever present European Union (I am sorry but there is no escape from the EU).

An Indispensable companion For all practitioners involved in corporate governance Forlin and Appleby’s ‘Corporate Liability’ is clearly an indispensable companion to Butterworths’ formidable loose-leaf work the ‘Personal Injury Litigation Service’ and other works which relate to workplace deaths and injuries which cover legal practitioners, public and regulatory bodies, companies and health and safety professionals. I will leave the five volumes in chambers and just take ‘Forlin and Appleby’.

IDENTIFICATION Investigation, trial and scientific evidence

By Paul Bogan Legal Action Group ISBN 1-903307-25-2 Price: £37 THE EYE SEES WHAT IT IS MEANT TO SEE: LIVE ISSUES OF IDENTIFICATION Every year the Court of Appeal hears a very large number of cases which rest on the issue of identification. “Bogan on Identification” is a gem of a book for practitioners because it brings together all the difficulties associated with adducing ID evidence on both sides. It is right to say that police practice and the criminal justice process itself are now highly developed areas where disputes over identity are concerned. The book addresses the many scientific advances concerning ID evidence which have been made in the last few years and will become an indispensable aid to criminal lawyers in future cases.

The continuing controversy on ID evidence The problem, which Paul Bogan tackles in this detailed work, continues to generate both controversy and debate. What Mr

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Bogan achieves here is an analysis of the powers and duties of police officers in the collection of identification evidence. He offers a comprehensive guide to the various sources of ID evidence within the trial process itself which is of great forensic assistance. Probably this is the single most important reason for practising barristers at the Criminal Bar to buy this book.

the 7 detailed appendices of great help in their day-to-day practice. It is always a great help to have PACE Code of Practice D on the identification of persons by police officers to hand when considering ID evident – Code D is at Appendix A.

Bogan also offers a thorough insight into the methodology and admissibility of scientific and other expert means of personal identification which remains one of the biggest areas of controversy. He is well suited to this task as he is a member of Doughty Street Chambers and a specialist in fraud, drug trafficking and offences of serious violence. He knows what he is talking about.

* *

Structure of the Book

THE CRIMINAL JUSTICE ACT 2003

The book is split into three parts: investigation; trial and scientific evidence.

There are 17 chapters and a useful introduction. Many practitioners will find

I found the CJA appendix of particular importance because it introduces a very substantial number of changes to police powers, criminal procedure and evidence

The other appendices cover the following areas: The History of Code D; The Pro forma Notice to Suspect and identification procedure records; * Various relevant sections of PACE; * Home Office Circular 57/2003; * Judicial Studies Board Specimen Directions; * A commentary on relevant provisions of the Criminal Justice Act 2003.

19

as they begin to come into force. I come away with the memory of the late Professor Sir John Smith who always maintained that England and Wales should have full codification of the rules of evidence.

“Bogan on Identification” shows the path towards full codification of evidence as one that a future government could take. It remains a pity that the public have to face an annual CJA because Parliament will not get to grips with the issues that are, by and large, not that controversial.

Demand for knowledge on ID evidence Many practitioners will probably recall from their student and pupillage days the problems connected with ID evidence and will remember some of the practical training exercises set by the examiners.

Bogan’s book is a ‘must’ for any barrister involved in the criminal justice process because it is clearly a one-stop shop. All you ever need to know about ID evidence but were afraid to ask! Yes, this has everything for you.

What do you see in the box above? - Nothing?

The forensic accounting team at Alexanders see something that needs further investigation.

• We would ask why is it blank? • What should be in it? • Why is it not there?

There is always more to litigation support than meets the eye!

Contact us now for a free brochure, CV’s and references.

Write to Jim Donoghue FCCA ATII MAE or Chris Tomaszewski FCA MAE MEWI. Why not telephone, fax or email for a quicker response?

Redhill Chambers, High Street, Redhill, Surrey. RH1 1RJ Tel: 01737 779500 Fax: 01737 779548 e-mail: alex@alexandersca.co.uk

20

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The Story of Adolf Beck Bogan starts the book with the cautionary tale of Adolf Beck, an innocent who bore a ‘slight resemblance’ to serial con man William Wyatt. I found, going through the book, that many questions I would think to ask over a particular case I might be instructed on were fully explored with useful observations on how Counsel might proceed. Great advice here when we are looking for forgotten themes of defence.

As many will know, it is sometimes the most obvious points that can be put aside amid the wealth of evidence, which the Prosecution may present (including the obnoxious unused material which Judges so loathe).

The Contents In Part 1, entitled “Investigation”, chapters 2 – 8 cover the following areas: * * * * * * *

Introduction to Code D Visual identification procedures and their application Identification officer, Notice to Suspect and procedure selection Conduct of visual identification procedures Body mark, photographs, fingerprints and samples Juvenile and other vulnerable suspects Voice identification procedure

here in a logical way that is of great assistance to the busy barrister and his even busier pupil.

Advising The Defendant My strongest point is left for the end: this is a great book for the idle prisoner if he cannot get his hands on Archbold. That is what worries me about it. All the detail is here, but I doubt whether it will diminish the number of frivolous appeals in the Court of Appeal (Criminal Division). This book could well force the end to a disastrous court of appeal system which clearly needs to be replaced with an adequate judicial tribunal that can determine failures in the criminal justice system on historic roots of equity and not pure political expediency which has been the fate of criminal appeal courts for at least two centuries.

End note The law is stated as at 28th June 2004. So, Bogan has succeeded in his aspiration that this book will assist all those who seek a better understanding of the law and practice relating to identification evidence. Well done, you have achieved your goal and we should thank the LAG for this.

CHITTY ON CONTRACTS

continues to provide a complete coverage of the law of contract, incorporating detailed reference to relevant legislation and cases.

Volume 1 deals with General Principles applicable to every kind of contract and Volume 2 covers Specific Contracts such as Sale of Goods, Construction and Credit & Security.

The key benefits from this new edition are: · An extensive updating of contract law itself incorporating new developments such as the Contracts (Rights of Third Parties) Act 1999, the Enterprise Act 2002, and the Sale and Supply of Goods to Consumers Regulations 2002 · Newly revised chapters cover Crown, Public Authorities and the European Union; restitution; and restrictive agreements and covenants The New Law Journal described Chitty as ‘overwhelming in its scholarship’, and ‘humbling in its ambit’ – choice phrases which reflect the expertise of this eminent team of contract lawyers who will be familiar to both students and practitioners alike as household names for our profession. Many practitioners welcome the use of a range of experts to observe developments in this area of substantive law.

(29th Edition)

Part II reviews “Trial”:

General Editor: Professor Hugh Beale

The Practitioners’ Favourite

* *

Volumes 1 & 2 £350 (Supplement service available) THOMSON/SWEET & MAXWELL ISBN 0 421 842 806

Chitty still remains the practitioners’ favourite as few chapters have remained unchanged with the new edition. For the busy civil advocate, it is an invaluable source for all academic and judicial references. The work remains of the highest calibre as contract law enters the twenty-first century. We have much to thank Joseph Chitty for his perseverance in 1826 when the first edition saw the light of day as a modest start to the bedrock of common law. There is really nothing that can compare with this learned work - it maintains the highest of standards in the most fundamental area of common law.

* *

Disclosure Evidence, admissibility and exclusion Submission of no case Jury directions

Part III deals with ‘Scientific Evidence” and is a leading 21st century statement on where we are in 2004/5: * * * * * *

DNA profiling Fingerprint and other skin impression evidence Facial mapping Handwriting Voice Dog tracking

So you can see that all the main senses are catered for! This is, truly, a book for the twenty-first century - all the technological advances of recent years are incorporated

THE PREMIER AUTHORITY FOR 21st CENTURY CONTRACT LAW Without question, this is the premier book from the complete Sweet and Maxwell Common Law library of practitioner publications. Easily described as the undisputed heavyweight in all senses, it has comprehensive coverage, scope and detail in contract and agency law. This edition has been extensively updated and incorporates new legislation and many recent cases. It is also a great book for students who wish to gain a ‘First’, and for academics and commentators conducting research.

In two volumes, “Chitty on Contracts”

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21

The forensic accountant’s role in dispute resolution

By Emile Woolf, Head of Forensic Accounting services at Kingston Smith, Chartered Accountants, and a CEDR qualified mediator

T

Having for over 20 years

concepts, principles and practice to matters

facilitating a meaningful negotiating process

provided accountancy

in the realm of law requires a proper

and in achieving a mutually acceptable

support to parties

understanding on the accountant’s part of

outcome in the form of a settlement.

in dispute, I find it

the limitations of one’s expertise as well as a

interesting to reflect on

strictly applied disciplinary code, the essence

This is particularly relevant in cases

the changing perceptions

of which is that one’s overriding purpose is

involving allegations of professional

of the accountant’s role. What used to be

to assist the court with matters falling within

negligence of accountants themselves, since

considered an optional “add-on” is now

the scope of one’s technical expertise and

the experts appointed by claimants and

an essential ingredient in an established

direct experience as an accountant.

defendants will be required to consider both

procedural framework that governs form, legitimate content and timing.

liability and quantum and occasionally even Hallmark is independence

issues relating to causation and reliance.

Although by no means all such cases will

The development that most obviously defined this transition was of course the reform in 1999 of the Civil Procedure Rules

Written reports which constitute one’s

settle pre-trial, the majority are susceptible

evidence must carry a stamp of impartiality

to mediation as a means of potential

that can withstand vigorous cross-

settlement.

examination. Although one may at first be a party-appointed expert, instructed to

The arguments will by then have been well-

advise on the strengths and weaknesses

rehearsed in experts’ reports; the experts

of respective sides’ arguments, once the

will have met as often as they consider their

experts’ services must be accommodated.

case moves to trial one’s evidence must

discussions, always held without prejudice,

be seen to be wholly independent: one is

are likely to be fruitful; and they will also

The CPR framework

there to answer questions to assist the judge

have produced a joint statement for the

– never to act as advocate for the arguments

court on all matters agreed and not agreed

Contrary to initial aspirations litigated

pleaded. The distinction is a subtle one: it

(with a précis of supporting arguments)

would be surprising (to all the parties, not

which, once signed by both (or all) experts,

least the judge!) if one’s objective evidence

loses its “without prejudice” status and is a

did not support the client’s pleaded case, but

potent indicator of the areas in which cross-

that is not the same as advocacy. Nothing

examination will be of most value to the

is more likely to antagonise the judge than

judge should mediation fail.

that laid down the structure which now governs public recourse to the Courts, and it is within this structure that independent

civil cases are not resolved more quickly: the revised CPR can sometimes have the opposite effect, particularly when, for example, there are protracted inter-party arguments about nominating a single joint expert, or about meeting criteria for

an expert whose evidence voices opinions Admitting weaknesses

completeness of disclosure, or privilege.

or conclusions that are within the court’s

But the CPR has certainly concentrated

very well, but making his findings for him is

The expert accountant’s objectivity and

assistance he does not require!

independence is often reflected in those

minds by raising the stakes via such punitive devices as wasted costs orders. Largely informal old-style directions hearings have given way to case management conferences

domain. Being there to assist the judge is all

sections of his report which highlight Alternative routes to settlement

weaknesses in his own side’s case. If, for example, he is instructed by the defendants’

Increasingly, disputes are resolved by one

solicitors or insurers, he may express

monitored and ordered through to trial.

of the alternative processes to litigation,

criticism of the defendants’ failure to issue

notably mediation. This is partly due to

an engagement letter; or their failure to

In virtually all cases in which monetary

the courts’ frequent insistence that the

qualify an audit opinion in appropriate

parties should make every reasonable effort

terms; or their failure to maintain an

to reach a settlement before taking up the

adequate record of discussions at meetings

courts’ time. It is, of course, also due to the

that are critical to the matters pleaded; or

high cost of funding the litigation process

their mechanical and thoughtless completion

current regime.

and the inescapable risk of a “freak” result

of their own audit working papers, betraying

– i.e. that, contrary to all expectation and

a lack of attention to detail.

The term “forensic” means “pertaining to

advice, one might actually lose!

In practice admissions of this nature, taken

at which the progress of the litigation is both

valuation or measurement of loss and damage is a feature the potential for constructive input from accountancy experts has been immeasurably enhanced by the

courts of law” and this is a useful reminder to all who seek to take on a litigation support role by calling themselves forensic accountants. The application of accountancy

individually or collectively, may not be fatal Far from diminishing the need for

to the defendants’ case as their impact

accountancy expertise, mediation has

may be ameliorated by factors pertaining

accentuated the accountant’s role in

to causation or reliance. In one reported

22

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“loss of chance” action earlier this year

Mediation’s advantages

in which I was retained by the claimant it

into a damages template updated to reflect the latest potential concession of one party

was, for example, argued on behalf of the

Mediation takes place in a “micro-climate”

or grudging compromise agreed by the

defendants that the accountants’ alleged

which is quite unique. Factors enter

other.

recommendation to the claimant to proceed

the arena that would have no place in

with the acquisition of a business on the

a court of law. Most litigants find court

This enhanced possibility of settlement

basis of fundamentally flawed profit and

proceedings not only insensitive to their

applies to virtually any dispute in which

cash flow projections was not the cause

most basic instincts and feelings, but

financial measurement plays a part

of her losses since she, according to their

usually incomprehensible and, ultimately,

– whether it involves one joint venturer’s

evidence, was determined to go ahead with

unjust. Mediation can find that intersection

alleged failure to account properly to the

the purchase whatever their advice.

between feelings of burning resentment,

other; loss of investment potential and

however perceived to have been caused;

goodwill following breach of a trading

Although this argument proved to be

vague notions of adequate compensation;

agreement; or the dire consequences of

unsuccessful at trial (and on appeal) it

and an abiding awareness of the financial

transferring, for tax reasons, privately held

highlights the distinction between matters

uncertainty of potentially ruinous litigation.

property companies into a trading company,

on which expert accountancy evidence may

all under common control, when the latter

assist and matters of factual evidence for the

Accountancy expertise can have a sobering

court’s determination.

effect, particularly when respective side’s

becomes insolvent.

experts, acting in the spirit of professional

The forensic accountant does not pretend

For whatever reason, the parties involved

colleagues, are able realistically to advise

to tell the parties what to do – that is for

chose not to try mediation first: had they

the litigants at each turn of the negotiating

the advisers. But he can alert them to the

done so, the input of the accountancy

wheel on the strengths and weaknesses of

probable financial effect of any potential

experts may well have served to narrow the

the remaining arguments. I have many

settlement matrix.

arguments to the point at which settlement

times spent a private hour with my opposite

could have been achieved.

number and a laptop computer feeding data

www.kingstonsmith.co.uk

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23

Tough Love Where do we draw the line between helping and interfering in another person’s life?

Quite simply put, what can we do to help a person accept help?

By Mark Hepburn Substance Abuse Counsellor, LawCare

O

ne of the hardest things

The answer may well be to organise an

is imperative in conducting a successful

to do, either in a personal

intervention. Interventions can be very

intervention and for this reason, the

or professional capacity,

effective, if carried out properly, and have

workplace is unlikely to be chosen.

is to sit and watch as

been used for many years, particularly

someone you care about,

where unacknowledged alcohol abuse is

Interventions work best when the person

know and respect,

concerned. An intervention is a simple

concerned does not know about them in

becomes engaged in a self-destructive

way by which the affected person’s family

advance, but sometimes this is not possible.

pattern of behaviour. This is usually quite

and colleagues confront the person and

The risks of prior knowledge are that the

obvious when the behaviour is something

help them to see the consequences of their

person will avoid the situation, or refuse to

such as drinking too much, abusing drugs

behaviour.

attend, but usually, with the help of family,

or nicotine, or bingeing on food. However,

this will not happen. On the day of the

it is not quite so simple if you widen the

A common scenario might go as follows.

intervention, the person must hear from the

perspective to encompass reacting stressfully

An individual is identified as suffering the

assembled group about how valued he/she is

to various situations over so long a period

consequences of stress to an unacceptable

as an individual by all of those present, but

that the individual begins to suffer emotional

level and seems to be ignoring, or rejecting,

must also hear what he/she is like to live,

and physical consequences as a direct result

all attempts to help or to discuss the matter.

work and associate with and how stressed

of that stress.

Family and work colleagues cannot cope

behaviour is affecting relationships, work

with the side effects any longer. The idea

and the general well-being not only of him/

Such long-term stress can cause the

of an intervention is raised and this may

herself, but also those present. The person

destruction of personal relationships,

initially leave family, friends and colleagues

is asked to accept help immediately and

excessive mood swings and irritability,

rather apprehensive and confused. They

arrangements to do this may already have

loss of confidence and self esteem, lack of

may be ambivalent about whether to

been identified and put in place. The tone is

creativity and productivity, poor decisions,

participate, some may be afraid of this

warm, respectful and supportive, but firm;

deteriorating public relations and expensive

person, and some may be angry about

there is no debate. With such an atmosphere

mistakes. It is emotionally demanding and

his/her behaviour. However, the importance

of unity and support it is difficult for the

negatively affects not just the individual

of family and colleagues must not be

individual to deny help, although always

concerned but their family, home life and

underestimated, as together they form a

possible.

workplace environment as well. From both

powerful emotional lever.

a personal and a career viewpoint, it can

An intervention of this type is appropriate

be traumatic to have to end an intimate,

A focal person would be identified as

when someone needs help, but refuses to

familial or working relationship. Perhaps

the leader of the intervention. This

accept that it is needed. It is not interfering.

this is a valued relation, a friend, or a

would most likely be the individual’s

Even if it were, it would be done with the

colleague who has worked well with you for

wife/husband or partner. It would be this

individual’s best interests at heart. This kind

many years? It would surely be far better

person’s responsibility to co-ordinate the

of interfering can save lives and it is called

to correct the problem and restore the

intervention, identify others who could be

a simple intervention. It is far preferable to

individual concerned to a proper work / life

involved, including other family members

the other type that many of you may have

balance?

and concerned parties if possible, or

heard of ie. crisis intervention. It is always

appropriate. This focal person would explore

preferable to deal with a situation before it

Are we truly helpless? Is there nothing that

the possibilities and options and prepare

becomes a crisis.

we can do in these situations to help the

what is going to be said. This preparation

individual see what is happening around

would be likely to involve several meetings

In addition, LawCare offers a free,

and to them? Where do we draw the line

and telephone calls with the others involved

independent and entirely confidential

between helping and interfering in another

and may culminate in a practice session,

advisory service to help Barristers, their

person’s life? Quite simply put, what can we

prior to the intervention day. A comfortable,

immediate families and their staff to deal

do to help a person accept help?

friendly and non-threatening location

with addiction, health problems and related

24

the barrister

emotional difficulties.

Help and support is available to those who are suffering stress or depression as a result of work, family or financial problems, or who have an alcohol, drug or other misuse or dependency problem.

Ignoring a problem and hoping it will go away is not the solution. The first step is to recognise the existence of the problem.

The second is to seek objective and nonjudgemental expert assistance in dealing with it. That is where LawCare comes in.

Our service : ·Is strictly confidential. ·Takes the form of initial telephone advice and / or referral where necessary. ·Is available to all Barristers their immediate families and staff. ·Is provided free (although any subsequent professional counselling or treatment will normally have to be paid for unless available on the National Health Service or covered by private health insurance). ·Offers free (except for travelling expenses) CPD accredited stress recognition and management training to Chambers, Circuits or special interest groups.

If you need help, or know someone who does, please phone our confidential freephone helpline on 0800 018 4299 or visit our website at www.lawcare.org.uk For education courses please phone 01273 461861 Law Care Health Support and Advice for Lawyers President: The Rt. Hon. Lord Woolf, Lord Chief Justice

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25

Do we know the way to go?

Britain’s Transport Crisis

By Tony Bosworth, Senior Transport Campaigner, Friends of the Earth

L

abour came to power in 1997 promising great things in many areas. Transport was no exception. A month after the election, John Prescott said “I will have failed if in five years time there are not many more people using public transport and far fewer journeys by car. It's a tall order, but I urge you to hold me to it”.

Initial high hopes of a much-needed change in direction carried on to the 1998 Transport White Paper, but faded as the Government got cold feet. Labour’s ten year transport plan, published in 2000, marked a substantial step backwards and the fuel tax protests in the autumn of that year saw the Government in full retreat.

Seven years on, transport is one of the Government’s greatest failures. Traffic levels have gone up by over ten per cent. Public transport use has risen, but rail punctuality has still not recovered from the aftermath of the Hatfield crash. Congestion remains a huge problem. Transport is responsible for around a quarter of all UK emissions of carbon dioxide, the main contributor to climate change, and the biggest threat the planet faces.

Friends of the Earth believes that there is simply too much traffic on Britain’s roads.

The problems this creates are not just environmental, but also economic and social. Rising traffic levels are severely hampering efforts to meet the Government’s targets to reduce carbon dioxide emissions to 20% below 1990 levels by the end of the decade. Congestion costs the UK economy billions of pounds every year. And those without cars, well over half of the poorest households in the country, face growing problems in an increasingly car-dependent society – access to work, shops and leisure facilities can be very difficult.

The most recent White Paper ‘The Future of Transport’, published in July this year, was the Government’s latest, and possibly last, opportunity to get its transport policy right.

Friends of the Earth was one of the founder members of the Way to Go campaign, a broad coalition of nearly 30 environment, transport and social justice groups including the National Federation of Women’s Institutes, Age Concern, the RNIB and the trade union UNISON. In the months before the White Paper, the Way to Go campaign lobbied the Government to prioritise high quality alternatives to car-use through increasing investment in public transport and making streets safer for cycling and walking, rather than road-building and

motorway-widening. Such measures would be extremely popular. Opinion polling showed that investment in public transport was a top priority by twice as many people as road-building and motorway-widening.

There were some welcome elements in the White Paper, notably the continuing support for road-user charging and making it easier for councils to take action to improve bus services. But overall it was a huge disappointment, with no strategy to cut traffic levels or tackle climate change. The Department for Transport has assumed joint responsibility for the Government’s climate change target, but there was little evidence of policies to meet these commitments.

The messages on road-building, another key area, were very mixed. In his statement to the House of Commons, Transport Secretary Alistair Darling said “car use has increased and is likely to increase more ... we cannot try to build our way out of the problem—the cost, environmentally and financially, is unacceptable” but wrote in the White Paper that “we need to be in a position where ... we identify, fund and deliver promptly additional road capacity where this is justified”. Is road-building on the agenda or not? Decisions in the next few months on highly-damaging proposals such as the Bexhill – Hastings Link Road (one of the highly controversial Hastings bypasses, rejected three years ago but now proposed again) and the A303 through the Blackdown Hills on the Somerset/Devon border will be tests of the Government’s environmental credibility.

The global impact of the way we travel has gained a higher profile in recent months.

Rising oil prices have led to higher petrol prices, which in turn provoked threats of further protests from hauliers and farmers who had been active in the autumn 2000 protests. They demanded that the Chancellor abandon the fuel tax rise announced in the Budget in March. But the protesters were missing the real issues of climate change: the need to reduce Britain’s dependence on oil. Reducing our dependency on oil would make the UK less vulnerable to oil insecurity and global price increases. It would also help us meet our targets for tackling climate change and stimulate economic activity in new technologies to aid action on climate change.

This issue further illustrates the lack of joined-up thinking in Government. ‘The Future of Transport’ states that “measures affecting the cost of fuel” are one of “the most cost effective ways of reducing total CO2 emissions from the transport sector”.

But within hours of this being published, the Chancellor postponed his proposed fuel tax rise.

Compounding the problems of climate and transport is the projected growth in aviation.

Government forecasts estimate that air passenger numbers will rise from around 200 million a year at present, to up to 500 million a year by 2030. Growth on this scale would hugely increase aviation’s contribution to climate change and pose real problems for the Government’s longer-term commitment to reduce carbon dioxide emissions by 60% by 2050. This growth has been criticised as unsustainable by the Royal Commission on Environmental Pollution, the Sustainable Development Commission and the House of Commons Environmental Audit Committee.

Much of this growth is predicted to result from a continuing rise in the number of cheap flights. Passengers are able to fly to the sun for a few pounds because of the economics of the aviation industry. Airlines in the UK don’t pay tax on the fuel they use and virtually no VAT on any aspect of their operations. This amounts to an effective ‘subsidy’ of over £8 billion a year (calculated on the basis that airline fuel was taxed at the same rate as unleaded petrol).

The Government’s stance on aviation is ‘predict and promote’, supporting the expansion of airports around the country, despite the environmental impact. It has pledged to make progress on tackling aviation emissions a priority for the UK’s presidency of the EU next year, but action is likely to be resisted by many of our European partners.

So where do we go now? The prospects are not promising. Government transport policy is far from sustainable. But the way forward remains clear. A wholly different approach is needed: one which weans us off our dependency on fossil fuels, cuts carbon dioxide emissions and tackles the social and economic problems transport poses. This should be delivered through legal requirements on the car industry to insure that new vehicles are significantly more fuelefficient, financial and legal incentives to increase the production and use of sustainably-produced biofuels; greater investment in alternatives to the car with financial incentives to encourage motorists to use them, such as increases in fuel tax and the introduction of road-user charging and demand management measures, including fair taxation for aviation. What is lacking is not policies that will work, but the political will to introduce them.

26

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PD’s call to ARMS – new conflicts ahead?

By Michael Cohen who is Chairman Emeritus of The Academy of Experts, Past President of EuroExpert (the Organisation for European Union Expert Associations), a practising insurance expert, a Qualified Mediator and a Chartered Arbitrator.

C

ynics could be forgiven for believing that ADR – the non-confrontational settling of disputes – is creating more disputes. When Lord Woolf’s approach to access to justice later embodied in CPR seemed to be advocating the use of ADR rather than litigation many lawyers were concerned at the impending erosion of the citizen’s right to have his disputes settled by the court. The possibility that this might have a knock-on effect for the legal professions probably did not even occur to those earning their daily crust in the courts and at arbitration. Nevertheless in the years since the introduction of CPR, ADR and mediation in particular, has been paraded as the panacea. The Government’s much publicised pledge to settling its disputes

by ADR was seen by some as a cost saving exercise and by others as more words. The threat of costs sanctions for the recalcitrant litigant appeared to be largely ignored.

refusal to mediate should deprive them of costs that had been allowed at first instance.

In the second case the dispute was essentially between the First and Second Defendants the latter having rejected the formers offer of mediation, about the effect of this refusal on costs. As with Halsey the court at first instance applied the normal costs follow the event principle.

Using the normal author’s licence, the simple question for the Court of Appeal was should a party be punished for its refusal (obviously unreasonably!) to mediate. As might be expected their lordships took the opportunity to give their guidance on this and related maters. They were no doubt given considerable assistance by the formidable array of counsel. In addition to 3 silks and 3 counsel for the parties, there were Lord Lester of Herne Hill QC for The Law Society and Mr Michel Kallipetis QC and Mr Philip Bartle QC for The ADR Group both as Interested Parties, prompting a fleeting thought about the cost benefits of ADR!

And then came Dunnett –v- Railtrack plc.

This when coupled with Cowl –v- Plymouth City Council made litigators stop and think (or rethink). Depriving a party of costs for the failure to mediate was a whole new ballpark. ‘Reasonableness’ became rather more important. Not unreasonably the bar recognised the potential value of this new tactical weapon. A new culture started to emerge – “... if you do not accede to our demonstrably reasonable request for mediation, we reserve the right to show this letter to the court at trial on the question of costs.” Mediation started to become used more frequently and it often succeeded when the lawyers predicted that it would not.

In a nutshell the court decided that the principle of costs follow the event should be applied in these cases. In other words despite refusing to mediate the successful party was able to recover costs in the normal manner. This does not sound like good news to those attempting to increase the use of mediation and other forms of ADR. Indeed many think it may well bring about a reversal of the laborious task of educating and persuading litigants and their legal advisers that the parties interests (and the courts’ targets for mediation) would be best served by them adopting ADR.

This then is the backdrop for the Court of Appeal in Halsey –v- Milton Keynes General NHS Trust; Steel –v- Joy and another [2004] EWCA Civ 576. In the first case the Defendant, Milton Keynes General NHS Trust, were successful at trial and the question for the court was whether their

The court continued by giving general guidance on the subject of costs. The thrust of this is that the costs principle applies to litigation whether or not mediation is offered, rejected or attempted. They went on to explain the principles that would be used to deprive a successful party of their

‘entitlement’ to costs. This deprivation should be regarded as an exception to the rule, which hardly seems to be encouraging the pressure to try mediation. To make matters worse the burden is on the unsuccessful party to demonstrate that the successful party acted unreasonably in refusing to mediate (or use an ADR process).

What the effect will be of this negative approach to ‘persuasion to mediate’ remains to be seen although it should make those lawyers who are positively anti ADR more resolute even if it is their client who has to pay the priCe of the dogma.

Had this have been the sum total of Halsey it might have been regarded as unfortunate and possibly not in keeping with what we now call the spirit of Woolf.

However the court also took the opportunity to consider what we might term ‘compulsory mediation’. Rather than paraphrase such an important concept I use the words of the court on the old fashioned basis that res ipsa loquiter.

“We heard argument on the question whether the court has power to order parties to submit their disputes to mediation against their will. It is one thing to encourage the parties to agree to mediation, even to encourage them in the strongest terms. It is another to order them to do so.

It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court. The court in Strasbourg has said in relation to article 6 of the European Convention on Human Rights that the right of access to a court may be waived, for example by means of an arbitration agreement, but such waiver should be subjected to “particularly careful review” to ensure that the claimant is not subject to “constraint”: see Deweer v Belgium (1980) 2 EHRR 439, para 49. If that is the approach

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of the ECtHR to an agreement to arbitrate, it seems to us likely that compulsion of ADR would be regarded as an unacceptable constraint on the right of access to the court and, therefore, a violation of article 6. Even if (contrary to our view) the court does have jurisdiction to order unwilling parties to refer their disputes to mediation, we find it difficult to conceive of circumstances in which it would be appropriate to exercise it.”

Be the Court of Appeal right or wrong, this article would have not have been written if it were not for the new Practice Direction 26b which includes: “This practice direction enables the Central London County Court to – (1) require the parties ... to attend a mediation appointment or to give reasons for objecting to doing so; and (2) stay the claim until such appointment takes place.”It continues: “If one ...of the parties ...objects to mediation, the case will be referred to a district judge who may ...direct that a mediation appointment should proceed”

Somehow the fact that a district judge may “direct that a mediation appointment should proceed” despite objections, looks uncannily like ‘obliging a truly unwilling party to refer their dispute to mediation’ which in the words of Dyson LJ “... would be to impose an unacceptable obstruction on their right of access to the court.”

Could this I wonder be an A P Herbert type situation where the Court of Appeal hear the cases on 30th and 31st March which resulted in the ‘no compulsion to use ADR’ headlines and when on the very next day (unfortunately designated 1st April) the Practice Direction comes into force giving the court the right to compel the unwilling party to mediate.

Psychologists tell us this is ‘mixed messages’.

But where does it leave the poor lawyer having to advise his unfortunate client on his choices? Possibly he should remind his client of the wonderful attractions including excellent food and fine wine that are on offer in Strasbourg.

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Introducing Pre-paid cards into the United Kingdom “Overcoming the legal and regulatory hurdles”

By Robert Courtneidge, Partner, Osborne Clarke Solicitors As the UK consumer credit market braces itself for the latest changes I am taking a look across the pond at the latest payment phenomenon in the USA the “Pre-Paid Card”. At its current rate of growth it is predicted to have more than 50% of the payments market within 10 years - so what is it?... and what are the legal and regulatory challenges it faces?

on a card. The implementation of two European Directives (“the Directive”) by the Financial Services and Markets 2000 (Regulated Activities) (Amendment) Order 2002 (“the Order”) which came into force in the UK on 27 April 2002 and which amend the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 are the way in which this area is regulated

area (for example, less than 4 km2) or who have a close business/financial relationship with the EMI.

in the UK at present.

to provide the FSA with information on request and is still subject to other regulations including the Money Laundering Regulations 2001. Furthermore, the FSA has the power to revoke the certificate where the relevant conditions are not met.

What is a pre-paid card?

With a credit card consumers purchase the goods or services today with a view to paying back the credit card company with interest at some point in the future – this can be summed up as “buy now – pay later”.

With a debit card consumers link their bank account to the payment card so that monies are deducted from their current account at the time of the purchase – this can be summed up as “buy now – pay now”.

Turning now to a pre-paid card here, in the same way as with a mobile phone top up card, the consumer is required to pre load the card with cash in order to be able to use it to purchase goods and services up to the amount that has been loaded up onto the card - this can be summed up as a “pay now – buy later”.

The benefit of the pre-paid card is that consumers, rather than racking up too much debt are able to manage their finances properly and sensibly without spending more than they can afford. This is exactly what the OFT and the government want – sensible financial management by consumers and a reverse in the trend of rising consumer indebtedness.

So what are the legal and regulatory challenges in setting up and running a pre-paid card?

The core of the new thinking in this area is e-money, as the prep-paid card proposition is in effect e-money being money deposited

There are several objectives underlying the Directive. These include consumer protection and the promotion of consumer confidence in e-money by ensuring the financial integrity and stability of electronic money issuers (“EMIs”), the provision of a single passport so that EMIs authorised in one member state can issue e-money throughout the EU and ensuring that authorised credit institutions are not put at a competitive disadvantage by regulating all EMIs and restricting their activities and investments.

The Order begins by defining ‘electronic money’ as “monetary value, as represented by a claim on the issuer, which is (a) stored on an electronic device; (b) issued on receipt of funds; and (c) accepted as a means of payment by persons other than the issuer” – clearly this is a fitting description of a pre–paid card. The Order then provides that issuing e-money is a ‘specified kind of activity’ (which means that it is regulated under the Financial Services and Markets Act 2000 (“FSMA”) unless the EMI has a certificate of exemption. The exemption is available to small EMIs which can satisfy certain criteria – i.e. the EMI does not issue e-money on devices which store more than €150 and either (i) does not have liabilities usually exceeding €5 million and never exceeding €6 million or (ii) does not have liabilities exceeding €10 million and the e-money is only accepted by its related companies or (iii) does not have liabilities exceeding €10 million and the e-money is only accepted by no more than 100 persons who are either located within a limited local

The exemption does relieve small EMIs from most of the provisions of the FSMA (including the obligation to pay the full authorisation fee) but the EMI still has reporting obligations including the obligation

The Order departs from the Directive in several respects. For example, the definition of ‘electronic money’ in the Directive includes the criterion that e-money is issued on receipt of funds “of an amount not less in value than the monetary value issued”. The Treasury considers this to be a loophole in the Directive as the issue of e-money at a discount would therefore not be e-money and not fall to be a regulated activity. For this reason the Order deals with the issue of e-money at a discount in a separate article, which provides that the FSA may make rules prohibiting the issue of e-money at a discount. The Financial Services Act Compensation Scheme does not apply to EMIs because the Treasury has taken the view that consumers and merchants are unlikely to hold significant amounts of e-money at any one time and the costs of funding such a scheme might act as a barrier to new entrants. Furthermore, the Ombudsman Scheme (which applies to other regulated activities under the FSMA and which might have had a positive impact on consumer confidence) is not provided for in the Order, although it is not required by the Directive.

However, whilst becoming an EMI may seem like a good way to run a pre-paid card program in the UK, its limitations on amounts that can be stored on devices and maximum liabilities mean it can only

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be used for small programs. Therefore, in order to run a program which could properly be scaled to meet the demands that are predicted, it is again left for the banks to take up the mantle and run them as part of their retail banking proposition as a bank you will need not only to have a FSMA deposit taking permission but also permission to issue electronic money.

In addition to the banking requirements to achieve national acceptance in the UK market, the issuers will need to offer a VISA or Mastercard product and run the program off of their platforms. Both of these card associations have already geared up for the launch in the UK with terms, conditions and regulations already in place awaiting the first entrant in the market. However, to date only one company is issuing, non gift card, pre-paid cards in the UK and they are issuing in a “closed loop” environment outside the card association platforms. Why is this? Quite simply no UK bank has agreed to run a pre-paid card and, without a bank that is a member of a card association, you cannot issue the pre-paid card.

However, the UK’s gift card market is growing rapidly with closed loop EMI’s issuing pre-paid gift cards and so it is unlikely that the banks will not see the opportunity and look for partners to launch with in the next year. In the US the Starbucks’ prepaid card pioneered a trend that leads Pelorus to predict US consumers to buy 400 million convenience (prepaid/ stored-value) cards in 2004, rather than wait in line to pay for a coffee or food. With about 30 million US households (almost one in three) lacking a credit card, Pelorus identifies this group, together with the 25 million-plus teenagers, as “a prime target for stored value alternatives”. It is predicted that within three to five years, almost every retailer in the UK will offer gift cards to boost overall sales and foot traffic. Some UK retailers are beginning to implement the gift card as a profitable, achievable entry point in a comprehensive payments strategy that can easily encompass store cards, and later, scheme-branded cards. Gift-card holders typically spend about 18 per cent more than the value of a card at a retailer, and visit the store at least twice more to spend the total balance on the card, according to research

by TSYS. Furthermore, gift cardholders not fully spending the value on their card, tend to leave 10 per cent of its value unspent,

which is an excellent additional source of income for retailers provided the retailer has terms and conditions for dormant cards which allow them to collect the balance if it not spent within a certain time.

So what are the key lessons to be learned?

The banks and retailers that move into this market will make a high bounty.

The key markets for the product will be: Youth market – 15-19 year olds (7.2 million consumers with a market size of approx £25 billion) Non-Standard – 18 year old + (non status, non conforming, credit impaired, sub prime – 7.3 million consumers with a market size of approx £27 billion) Migrant workers requiring a simple and cheap means of sending money to their families abroad (size of market unknown for UK) Gift card market (size of UK market unknown) The Government and OFT will be in favour of the product as it will encourage sensible spending within the consumers means.

With the additional regulation hitting the consumer credit market pre-paid cards will be the easier option for banks to issue.

Set out in the White Paper published by the Department for Trade and Industry on 8th December 2003 setting out proposals for reform and amendment of the Consumer Credit Act 1974 (the target date for effecting the majority of the proposals, including the provisions in respect of on-line agreements, is 31st October 2004) Over 22 million prepaid debit cards will be issued in 2004, and within five years, more than 50 million will be in use, according to the Pelorus Group’s latest study, “Stored Value: Transforming The Payments Industry”. Increasing stored-value card usage in the US “virtually mandates a re-examination of traditional credit/debit models”, Pelorus advises in its report, and banks will need to rethink their market strategies.

Directive 2000/46/EC (18 Sep 2000) on the taking up, pursuit of prudential supervision of the business of electronic money institutions and Directive 2000/28/EC (18 Sep 2000) amending Directive 2000/12/EC relating to the taking up and pursuit of the business of credit institutions.

SI 2002 No 682

29

SI 2001 No 544 A reference to euros in the Order corresponds to an equivalent amount in sterling.

2001 No 3641 FSMA (Regulated Activities) Order 2001, s. 5 “closed loop” refers to the fact that these are proprietary payment systems which do not run on any third party payment platform and hence do not have additional costs associated with card association membership and equally do not require participation in any card association.

Pelorus Group’s 2004 study entitled “Stored Value: Transforming The Payments Industry”.

Lafferty Group’s Cards International 2004 A large chain store retailer could see third-party gift card sales surpassing $100 Million a year. At an average commission of 10%, that would be over $10 Million of new gross profit dollars to the bottom line with no product cost, no inventory and no shrinkage. Tefisto Partners Youth Data, population statistics, 2001 Non-standard data report, Datamonitor 2003 Bain & Co estimated stored-value gift card sales for 2002 at USD 36 to USD 38 billion, a 20 per cent increase on 2001 Salomon Smith Barney believes gift cards to account for 5 per cent of total sales at major US retailers

NEWS ROUND UP

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Sir Peter Middleton to chair CEDR Sir Peter Middleton, former Chairman of Barclays Bank, has been appointed Chairman of Europe’s leading mediation service, CEDR (The Centre for Effective Dispute Resolution). He takes over from Lord Hurd, who has been Chairman since 2000 and who now chairs CEDR’s Advisory Council.

Sir Peter has a particular interest in cutting the cost of conflict within organisations. His experience in corporate governance issues and history of senior roles in the public and private sectors will be an important asset to CEDR’s mission of getting mediation processes into best practice in management.

Commenting on his new role, Sir Peter says: “I once said when at Barclays: ‘One of the roles a chairman can play ... much as I used to do with ministers, is to make sure conflicts are minimised’. As Chairman of Europe’s leading dispute resolution body, this has turned out to be somewhat prophetic!”

Commenting on his former colleague and successor, Lord Hurd says: “With a background in both the public and private sectors, Sir Peter will undoubtedly bring astute insights into the inner workings of both sectors which will be of enormous benefit to CEDR”.

Karl Mackie, Chief Executive of CEDR, says: “To have such a heavy hitter from the business world join CEDR is strong endorsement of the role mediation is now playing in major corporates. Mediation is a rapidly evolving phenomenon. Having established itself in the fabric of litigious activity it is now fast becoming accepted as a way of avoiding conflict. With Sir Peter’s experience of corporate governance partnered with his healthy distaste for over-regulation, we look forward to the future with relish!”

Zimbabwe: NGO Bill Harbours Grave Consequences for the People The International Bar Association (IBA) on Tuesday, August 24, 2004 has published its full analysis of the Non-Governmental Organisations Bill (NGO Bill) of Zimbabwe that, the Government of Zimbabwe gazetted on 20 August 2004. The Bill will soon be presented to the Parliament of Zimbabwe for enactment.The 17 page document: Analysis of the Zimbabwean Non-Governmental Organisations Bill, 2004, details the IBA’s concern that the proposed legislation will be farreaching with grave consequence for ordinary Zimbabweans. ‘The Bill is in flagrant violation of international and regional human rights standards and norms,

it also represents a decisive rejection of the terms of the Constitution of Zimbabwe, which provide for the right of freedom of expression, association and assembly. This attitude can only be described as contemptuous of the rule of law and of standards of governance and human rights protection to which the Zimbabwean government has formally subscribed’, the IBA concludes.‘The fear is that the NGO Bill will do to NGOs what the Access to Information and Protection of Privacy Act (AIPPA) did to the media in Zimbabwe. It will close many of them down.

Government seeks views on warrant enforcements success rate New ways to measure the success of civil warrant enforcement were unveiled by the Department for Constitutional Affairs (DCA) on 10 September 2004 A consultation paper, Civil warrant performance indicator - information for customers, asks for comments on the proposals and for information that would be useful to customers of the county courts that enforce judgments. The paper suggests a new method for evaluating how effectively warrants are executed by the county courts.

Currently, the Court Service measures and reports on the effectiveness of warrants in four ways - value of correctly directed warrants of execution recovered, value of all warrants recovered, and percentage and value of correctly directed warrants of

execution executed within six to 12 weeks.

It is proposed that warrants should be reported within different, detailed value bands and that those issued in Consumer Credit Act cases are identified separately within value bands below and above £5,000.

Constitutional Affairs Minister Christopher Leslie said: “This Government is committed to providing excellent public services in the county courts. In an increasingly consumer conscious environment, we need to ensure those who use the county courts are given the information they need to help them make informed choices and comparisons between the services that are on offer for enforcing their claims.

Bar Council welcomes appointment of Linda Dobbs QC to High Court Bench Commenting on the recent announcement that Linda Dobbs QC is to become the first black High Court judge, Niall Morison, Chief Executive of the Bar Council said: ‘The Bar strongly welcomes the news that Linda is to become a High Court judge. She has made significant contributions to the profession on diversity and criminal justice both as a practitioner and more recently as Chairman of the Criminal Bar. She is an individual of the highest integrity and ability. Linda is very well respected throughout the profession and will enhance the High Court bench.

‘Barristers play a vital role in the justice system, and many go on to become judges. This is why it is vital they reflect the society they serve.

‘The Bar continues to lead by example when is comes to promoting diversity in the legal profession and the overall justice system.’

Grave injustice at Guantanamo Bay says Law Society The Law Society deplores the fact that military tribunals have started at Guantanamo Bay despite detainees not having access to a lawyer of their choice.

It is reported that four detainees are facing military trials this week. Military trials are similar to criminal trials but there is no right of appeal to an independent civilian court.

Commenting on the news, Edward Nally, Law Society President, says; “The Law Society believes everyone

has the right to independent legal advice no matter what crime they allegedly committed. Many detainees at the American base have been held in degrading conditions, unaware of the charges against them.

“Even if these defendants are acquitted, Military Orders mean their release is not guaranteed. We are pleased that observers will be allowed to witness these trials. We must not forget, however, that throughout this deplorable process the detainees have been denied their fundamental human rights.”

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