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ESSENTIAL READING FOR BARRISTERS

Est. 1999

15th june 2007 - 31st july 2007 TRINITY TERM ISSUE

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The Future of the Criminal Bar There is a growing sense of anger and despair amongst self-employed barristers at the publicly funded Criminal Bar. They feel that the very existence of a specialist referral profession of advocates is under threat. There is good cause to do so. We have long been sceptical about reassurances from Ministers about support for our work and vocation. Such words count for little when set against the political and economic realities the profession must face if it hopes to survive in anything like its current form. Those realities are that the legal aid system is hopelessly under-funded, but that access to justice is a low political priority. For the last decade, the Government has pursued a radical law and order agenda, with a heavy legislative programme. This has driven significant changes in substantive and procedural areas leading to greater complexity, coupled with targets for bringing increasing numbers of offenders before the courts. The scale

It was, therefore, obviously sensible for the Solicitors Regulatory Authority, the solicitors’ equivalent of the Bar Standards Board, to look at the requirements for solicitors exercising rights in the higher courts. Earlier this year, it issued a consultation paper on whether those requirements should be changed. At present, solicitors automatically gain rights of audience in the county courts and below on qualification. If they wish to appear in the higher courts then they need to obtain an appropriate qualification which may be simply in respect of crime or civil, or of both. Typically

ISSN 1468-926X

Features

and complexity of investigations, and increasingly technical and scientific nature of evidence, have added considerably to the burden and cost of litigation. Spending on legal aid has simply not kept ANDREW HALL QC pace with vastly Chairman increased budgets Crimial Bar Association for the police and prosecution agencies, and the prisons. A dismal settlement was achieved by the Department for Constitutional Affairs in the recent Comprehensive Spending Review. p.6 The net effect is a year on year cut of

ANNUAL IBA BAR 3 SECOND LEADERS’ CONFERENCE 16th MAY 2007, ZAGREB, CROATIA - The Benefits and Burdens of Self-Regulation By Geoffrey Vos QC, Chairman, Bar Council

10 LEGAL SERVICES REFORM In March, I delivered my Inaugural Speech as Professor of Strategy and Director of the Legal Services Policy Institute at The College of Law. The Institute is a new ‘think tank’ looking at the impact of regulatory and competitive changes in the legal services market. This article is based on extracts from that speech, and addresses some of the possible implications for firms of solicitors – the Bar’s main suppliers of work. By Stephen Mayson , Professor of Strategy and Director of the Legal Services Policy Institute at The College of Law

QUICK FIX TO TACKLING 12 NO STREET CRIME

Higher Rights of Audience – the SRA’s Consultation and the BSB’s Response It is almost 20 years since the then Government set out its proposals for permitting solicitors to exercise rights of audience in the higher courts and almost 15 since the first higher court advocates gained their qualifications. The campaigns surrounding that are now in history. The dire predictions have not come to pass: the Bar has grown and advocacy standards have not obviously declined.

PRICE 3.00

solicitors are required to demonstrate a track record of advocacy appearances in the lower courts and to attend a training course. If they gain their higher rights, they are able to carry them over to the Bar if they wish to practise as barristers and the BSB is not able to impose additional qualifications – hence the BSB’s interest in the subject.

By Enver Solomon, Deputy Director of the Centre for Crime and Justice Studies at King’s College London

News p.18 Chairs appointed to new BSB Committees

Times have changed. The BSB’s remit is to look at the public interest. Its role is not to protect the Bar from competition and we approached the paper in that light. Even so, there were a number of matters in it which caused us considerable concern.

p.19 Law Society defends minority solicitors

The SRA suggested that the existing requirements were too onerous and that alternative methods would be suitable. These included:

Editor: Nigel Simmonds 0870 766 2715 email: info@barristermagazine.com Publishers: Media Management Corporation Ltd

• Modifications to the existing It is almost 20 years since the then Government set out its proposals for permitting solicitors to exercise rights

Publishing Director: Derek Payne

p.38

Design and Production: Alan Pritchard Cambridge Printing Park Tel: 01223 423000


After 20 years we’re still private. Just a little less secret.

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the barrister

03

Second Annual IBA Bar Leaders’ Conference 16th May 2007, Zagreb, Croatia- The Benefits and Burdens of Self-Regulation  By Geoffrey Vos QC, Chairman, Bar Council Introduction

5.

1

We need to understand the different

over lay people in both the Bar Standards

ways in which the term ‘self-regulation’ is

Board

are on the changes to the

used.

Authority.

regulatory structure of the

connotations in this context:-

.

The eyes of the world

It has at least three quite separate

and

the

Solicitors’

Regulatory

Non-lawyers will, however, be

in the majority in the ultimate oversight regulator, the Legal Services Board.

legal profession in England

Thus,

Regulatory bodies can be populated

true self-regulation with lawyers being in total

by lay people rather than lawyers in any

control will disappear under the Bill. This is,

European lawyers regard the Clementi report

combination or balance.

Presumably self-

however, only one aspect of self-regulation as

and the now well advanced Legal Services

regulation is lost when the majority of the

I have sought to make clear. And lawyers will

Bill with great trepidation. They believe that

ultimate regulatory body is composed of

continue to be highly influential in their own

they represent the thin end of the wedge

non-lawyers rather than lawyers. But there

regulation at both the front line and oversight

– the end of self-regulation for the legal

are many possible stages between that and

regulator levels.

profession. And they believe that the English

full blown self-regulation in this sense (i.e.

legal profession has sold the pass; that it has

regulation without any influence from non-

(2)

With regard to Government regulation,

failed to fight the changes with the requisite

lawyers).

the

Legal

vigour.

regulation’.

and Wales. surprising,

This is not because

many

(1)

I will call this distinction: ‘lay

Services

Board

will

not

be

a Government body. It will, however, as presently envisaged by the Bill, be appointed

2.

I would like briefly to explore whether

Regulation of the legal profession can

by the Lord Chancellor, the Government

also be undertaken by Government rather

minister statutorily charged with upholding

than members of the profession.

This is

the rule of law. I believe that there should be

It is necessary at the outset to explain

a separate distinction from that between

some check on the Lord Chancellor’s power

the structure of the Legal Services Bill

regulation by lawyers on the one hand and by

of appointment to remove the perception of

model.

The Bill envisages that the front

independent non-governmental non-lawyers

Government influence on the Legal Services

line regulators (the Law Society and the

on the other hand. I will call this concept:

Board. For that reason, the Bar Council has

Bar Council) will undertake rule making and

“Government regulation”.

proposed that the appointment should be ‘by

these views are justified. 3.

(2)

disciplinary functions through ring-fenced

the Lord Chancellor with the concurrence

regulatory bodies (now called the Solicitors

(3)

Thirdly, regulation can be undertaken

Regulatory Authority and the Bar Standards

by the very same lawyers who represent the

Board respectively). The front line regulators

interests of the profession, or by different

will be responsible to an oversight regulator

lawyers who, as regulators, are set apart

(3)

to be called the Legal Services Board. But

from the representative institutions of the

regulation. Clause 29 provides that the Legal

the intention is that the Legal Services Board

profession. I will call this distinction: “ring-

Services Board must make rules to ensure

will not itself become involved in day-to-day

fenced regulation”.

that regulatory decisions by the front line

regulatory issues. Instead, it will make rules

of the Lord Chief Justice’, the most senior judge. The

Bill

requires

ring-fenced

regulators are required “so far as reasonably

as to how the front line regulators must

practicable [to be] taken independently from”

comply with the policy of the legislation, and

Does the English Legal Services Bill spell the

representative decisions.

enforce those rules where necessary.

end of self-regulation?

lawyers representing the interests of the

This means that

4.

6.

profession will not be able to be involved in In addition, consumer complaints will

Taking each of these three types of self-

regulation in turn, the blueprint envisaged by

be named the Office for Legal Complaints.

Clementi and the Legal Services Bill provides

7.

That body will be able to award redress to

as follows:-

Services Bill will, in some senses bring an end

With regard to lay regulation, at the

non-lawyer element into the process; it

moment there is a bare majority of lawyers

will keep the representative lawyers out of

(1) The different meanings of self-regulation

Thus it can be seen that the Legal

to self-regulation. It will bring a significant

consumers.

WZZh[ii0

any way in taking regulatory decisions.

be handled by a single independent body, to


04

the barrister

regulation, but it should, at least, mean that

clear view that separating representation

the Government is not itself regulating the

from regulation is a positive and important

legal profession.

step forward. Conflicts of interest between the

15.

public interest and the interests of the legal

regard the Legal Services Bill with trepidation?

Has the Legal Services Bill got the balance

profession are unavoidable, and the public

If independence from Government is assured

right?

cannot be expected to have confidence in

(and it is a real ‘if’), I believe that such

a legal profession that is regulated by the

trepidation is unjustified.

8.

In all probability it is too early to answer

this question.

But taking each of my three

abuses of power by the State. Are European lawyers right, therefore to

same people who represent its own sectional interests.

Many examples could be given.

16.

Is it right to say that the Legal Services

kinds of self-regulation issues in turn, I think

But I will confine myself to one.

I was

Bill is the thin end of the wedge? I don’t think

the legislation will be reasonably successful,

Chair of the Bar’s rule-making regulatory

so. The Bill establishes a regime for the next

provided that certain safeguards are applied.

committee at a time when I also sat on

generation. Governments are not enthusiastic

its main representative committee. Criminal

about finding time for lawyers’ legislation, and

I believe that self-regulation by lawyers

barristers at that time had a major dispute

I would not expect this Bill to change for much

alone must be a thing of the past, as is already

9.

with Government over fees, and asked the

for 20 years.

the case in most other professions. The public

regulatory committee to change the rules so

interest demands that outsiders are involved

they could refuse work in order to further their

17.

in disciplinary processes, complaints and rule-

fee negotiations.

The regulatory committee

sold the pass? I think not. We have fought to

making, so as to ensure transparency, and to

rightly refused, but the conflict was obvious.

improve the Bill, to make it less costly, and to

prevent abuse, to the detriment of the justice

The public is entitled to expect that justice is

make sure that it gives the public confidence

system. The Bill will achieve this objective

not only done, but that it is also seen to be

in the independence of the regulation of

Have we in the English legal profession

done. Separation of decision making is both

the profession. Whether our fight has been

But I believe equally strongly that

necessary and desirable. Indeed, I would go

entirely successful remains to be seen.

regulation should be entirely independent

so far as to say that this kind of ring-fencing

of Government.

strengthens self-regulation, using that term in

10.

There are three simple

reasons:-

the sense of lawyers being involved in their

Geoffrey Vos Q.C.

own regulation. (1)

First, the legal profession defends the

Chairman of the Bar Council of England and

citizen against any abuses of power by the

Conclusions

State.

12.

The Government cannot justifiably

Wales

For the reasons I have given, the Legal

regulate the profession, which represents its

Services Bill will affect self-regulation in some,

opponents.

but not all, senses. But this does not mean

14th May 2007

that it is a bad thing. (2)

Secondly, the Government has a conflict

of interest: it is the largest consumer of legal

13.

services, and, as such, will have its own

front line regulatory bodies and the oversight

Lawyers will still be involved in both the

interest in how the profession might be

regulator, the Legal Services Board.

regulated.

will not be in the majority in the oversight

(3)

Thirdly, if the Government appears to

body, but, in my view, this is not necessary

control the regulation of the legal profession,

provided they have a significant influence.

it will destroy the confidence of overseas legal

They will remain in control of the ring-fenced

professions in their English counterparts.

front line regulators, subject to significant lay

The Legal Services Bill, as presented by the

involvement. Such lay involvement gives the

UK Government, did not contain adequate

public and the consumer confidence in the

safeguards to ensure that there was both

regulatory system.

They

actual and perceived independence from the Government in the appointment of the ultimate

14.

oversight regulator. Fortunately, however, the

free from State control. Even the appearance

House of Lords recently passed an amendment

or perception of Government interference is

providing for such independence during the

to be condemned. The independence of the

Report Stage of the Bill. It remains to be seen

legal profession is a major element in the

whether the amendment survives the Bill’s

rule of law. Only in that way, can the public

passage through the House of Commons.

be assured that they will be able to obtain

It is crucial that the legal profession is

independent representation against the State, 11.

In relation to ring-fencing, I take the

so that they can be properly defended against

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


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06

the barrister

3.5% in legal aid spending for the foreseeable future. This is at the very time when existing funding has proved inadequate properly to fund existing criminal justice requirements without causing advice deserts in relation to civil work.

p.1

Against this background, the Department and the Commission are determined to make significant cuts in the cost of provision for legally aided criminal defendants. The talk may be of “sustainability” and “best value”, but the reality is financial crisis and the need for deep cost cutting. Reducing the level of lawyers’ fees is the starting point, but in itself is not seen as the end point. What is seen to be necessary is the wholesale re-structuring of procurement so that price can be driven down to rock bottom. Small, specialist and niche providers are to be driven out of the market by large conglomerates prepared to offer minimum prices in exchange for the guarantee of bulk work. The added expense of client choice, and high quality, are simply unaffordable in this vision of public legal services. Of course, Government has a monopoly over the purchase of our services – both prosecution and defence- and complete control over the market. It is trite to say that monopolies always abuse their market position. The “market forces” to be introduced by the Carter reforms are intended to drive prices down, and will not be permitted to allow them to rise. In that sense, the “market” is illusory and simply disguises an arbitrary fixing of prices by means of a low ceiling on fees. Moreover, the balance between quality, choice and price proposed by Carter has now been firmly weighted towards price alone. It seems that legal services provided at public expense, with the notable exception of those provided to Government itself, need only be adequate as opposed to excellent; and the notion of client choice is a poor fit with the vision of one stop shops, holding bulk contracts for work, awarded by means of a Dutch auction. Within this vision there is little room for specialist referral advocates providing high quality, independent advice and representation. If it can be done more cheaply by others, even at a significant cost in quality and choice, the view from the DCA and the Commission appears to be “so much

the better”. Thus we arrive at the two policy aims which are being pursued with such vigour by the Legal Services Commission: the deployment of in-house advocates, and the move towards the consolidated case fee.

Higher Courts Advocates The growing amount of Crown Court advocacy being undertaken by solicitor advocates is but one effect of this policy stream. Enormous commercial pressure is being placed on firms to deploy HCAs into this work as a result of the new General Criminal Contract recently imposed upon them. It has been made clear by the Legal Aid Minister, at meetings throughout the country, that this will be essential for legal aid firms with a fragile profit base to remain viable. Encouraging them to take this work in-house is seen as an important step in the drive towards fixed price contracting. Solicitors are in an impossible position. Despite their excellence as criminal litigators, the vast majority did not choose to be advocates in the Crown Court. Few have the experience, skills or aptitude for this work. The vast majority recognise that the quality of representation they are able to offer their clients may suffer if they are unable to provide the choice of a specialist and experienced trial advocate. They also appreciate that case preparation and management, and services to clients at the police station or in custody, will suffer. The unscrupulous few, view this as an opportunity to cherry-pick easy appearances, and to appear as “straw juniors” in cases they are not competent to handle as advocates. In addition, we see an increasing

willingness by some solicitor advocates to offer their services in ways which directly compete with the low overhead structure of chambers but without the quality safeguards. For example, solicitor advocates increasingly operate as “consultants” within the partnership structure to form a low-risk association with the firm in which advocacy fees are shared, or the firm receives a commission on the fee. Consultants are increasingly offering their services to a number of firms in a loose association, and quid pro quo arrangements are made to cover local hearings. Other advocates are developing “HCA chambers”, some of which are “virtual”. The overall effect is to undercut the Bar by reducing travel and overhead expenses, to offer a lower quality and unregulated service to clients, and to operate on a form of “commission basis” which undermines the integrity of the GFS payment structure. The recent SRA Consultation on Solicitors’ Rights of Audience (which suggests the abolition of HCA accreditation in favour of an automatic right of audience, subject to continuing quality monitoring) reflects the extent of the

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08 p.6

the barrister

Law Society’s ambition in relation to advocacy work, and will do little to reassure the public of quality standards.

In meeting these new developments, it is important for the Bar not to lose sight of those features of our practice which have always sustained us and which, in my judgement, will secure our future. Firstly, we trade on our training, specialist experience and high standards. Whilst those are maintained, the public interest will demand that barristers continue to be instructed to prosecute and defend more serious criminal cases. Responsible solicitors will demand that too, in order to offer a high quality and flexible service to their clients. Secondly, whilst it is difficult to put a price on the quality of justice, it is easier to calculate that better advocates are more efficient, secure earlier proper pleas of guilty, shorten and simplify trials, avoid mistakes which lead to costly re-trials and appeals. Thirdly, the existence of the Bar in Chambers provides client choice and fairness, and the flexibility and even coverage which our justice system requires to operate efficiently. Fourthly, the low overhead structure of chambers allows us to operate cheaply, but in an environment where standards are maintained, monitored and highly regulated. Finally, that the referral system has developed to meet the need to use legal resources efficiently and is a commercial model which works for both branches of the profession. Those who have the aptitude, and wish to develop their careers as specialist advocates, bear the commercial risks of self-employment in the hope of greater reward. The commercial risk of employing specialist advocates is a significant one for a firm of solicitors. They will carry the burden of providing them with administrative and secretarial support, library and professional development resources, transport, professional indemnity insurance, holiday and sickness entitlement, pension provision as well as a competitive salary package. More importantly, they will need to keep them in work, since they will be paying them whether they are engaged in fee earning or not. There is no prohibition on solicitors’ firms employing barristers of every rank, but few have chosen to do so over the last decade. In my judgement, that is the result of a simple commercial risk/benefit calculation. If that is right, then the pressure

to recruit in-house advocates may run into the hard commercial realities of risk and the need for significant investment. In a low profit environment, with all of the attendant risks of price bidding to obtain a contract, the economics simply do not work. The Response of the Bar Against this background, the Bar can only succeed if can demonstrate that the high quality of its advocacy service is necessary in the public interest, and that experienced and specialist advocates save rather than increase costs. That may, in the longer term, encourage Government not to further undermine the position of the Bar in the market for specialist advocacy services. In the short to medium term, we must face a current expansion of the ambitions of solicitors to undertake advocacy work inhouse. Competition in itself is a driver of quality and on this basis there is nothing to fear from high quality HCAs. However, we must recognise that solicitors’ firms are the gatekeepers who allocate work and that a level playing field must be created to avoid abuses. The majority of our solicitor colleagues want to do the very best for their clients and will resist the pressure to choose advocates on commercial grounds, rather than selecting the right advocate for the client and the case. However, we must work with them to ensure that satisfactory quality controls are put in place to guarantee that HCAs are providing an equivalent high quality service. The Bar can justifiably resist competition from low quality or inexperienced HCAs, prosecution and defence. Their use can only depreciate the fairness and efficiency of the justice system within which we operate. It would be scandalous if the Department and the Commission did not support the principles of client choice and fair competition on quality. In particular, the Bar should insist on comprehensive application of the CPS statement of principle in relation to the use of employed advocates. The Bar should agree, with the Solicitors Regulatory Authority, guidance to practitioners to remind them of the professional misconduct issues which arise from brief switching and impropriety. Thereafter, the Bar Council should seek to negotiate with the Law Society a statement of principles, similar to that with the CPS, to ensure good practice in the use of solicitor advocates, and in the briefing of self-employed

barristers. It should be remembered that it is professional misconduct for a solicitor to make it a condition of a retainer to use in house advocacy (SPR 1990 Rule 16B). Indeed such conduct is unlawful. The Solicitor must act in the best interest of the client, and must therefore choose the most capable advocate for the job (see SPR Rule 1). Solicitors must choose the best advocate for the case, without regard to whether he/ she is in-house or self-employed. Regard must be had to lay client choice where the terms of legal aid representation allow for counsel to be instructed. The choice must be made meaningful by information being provided to the client as to this entitlement. Solicitors must brief counsel properly in advance, and must not remove briefs from counsel to undertake them in-house if the case pleads or for some other commercially orientated reason. The Fees Protocol, upon which basis members of the Bar will accepts instructions, reminds advocates that the interests of the client are paramount and include having the appropriate level of representation, and not changing the advocate without proper justification. Finally, the Bar should do everything possible to make the new Revised Advocacy Graduated Fee Scheme (RAGFS) work. This involves accepting the principles of case ownership and continuing the campaign to ensure that courts reduce mention hearings, and list cases so that the instructed advocate is available to appear when his/ her cases are tried. We are presently engaged in briefing Resident Judges and the Council of Circuit Judges on the culture changes required to make the RAGFS work, and encouraging the rapid and widespread use of electronic and telephonic hearings. If the RAGFS is seen to work well to encourage the efficient and cost effective disposal of criminal cases, there will be no reason to introduce either ‘one case one fee’ or price competitive tendering for advocacy fees. The Bar must campaign to explain why those developments are unnecessary to control costs, and likely to lead to a reduction in the availability of an independent pool of referral advocates, which operates transparently in the public interest.

Andrew Hall Q.C Chairman of the Criminal Bar Association


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Legal Services Reforms In March, I delivered my Inaugural Speech as Professor of Strategy and Director of the Legal Services Policy Institute at The College of Law. The Institute is a new ‘think tank’ looking at the impact of regulatory and competitive changes in the legal services market. This article is based on extracts from that speech, and addresses some of the possible implications for firms of solicitors – the Bar’s main suppliers of work.

By Stephen Mayson, Professor of Strategy and Director of the Legal Services Policy Institute at The College of Law Why is the market ripe for reform?

T

he

marketplace

for

legal

services is large, valuable and growing.

It is worth

around £20 billion a year (about 2% of GDP), of which about 10% is exported and

a further 10% is legal aid.

There is no

reason to believe that its value will not continue to rise.

At the same time, the

number of lawyers has increased.

The

number of solicitors in practice in England & Wales has more than doubled in the past 20 years, in part driven by the admission of increasing numbers of women. In total, the ratio of lawyers per head of population has increased from around 1:1,000 twenty years ago to about 1:400 today. This gives rise to a related problem. If the volume of ‘qualified lawyer’ work has not doubled (and given the

as fewer opportunities for the admission of

power from the lawyer to the client. But the

new owners.

public interest does not require the balance of power, whether through competition or

The challenge of managing costs, responding to pressure on fees, and investing in new approaches to the delivery of legal services has slowly but surely driven mergers and the

The public interest is not the same thing as the client interest or the consumer interest.

tenth in the past ten years. But there are

Public interest must protect the rule of law

still almost 9,000 private practice firms, and

and promote the effective and efficient

this represents a substantially fragmented

administration of justice. I accept that this

supplier base. Every one of those firms has

gives a legitimate interest in the efficiency

an unavoidable level of establishment costs

of the legal services market and so in the

just to be in business. Viewing the market

business arrangements of lawyers. But then

as a whole, therefore, there are inevitably

there might also be a conflict.

duplicated costs which are ultimately either

private market for legal services, and a public

borne by clients in higher fees or by partners

one. When the State pays for legal services, it

as lower profits than might prevail in a less

has an interest not just as representative and

fragmented market.

guardian of the public interest, but also as a

has), then we now have too many qualified

law firms, and too many equity partners;

lawyers for the work available.

but we’re in a market that is still growing in value.

Opportunities for further growth

in a market characterised by over-supply and inefficient business practices certainly

interest in the efficiency of the market for legal services. So we must examine closely the Government’s wish to see ‘market-based’ reforms – particularly in the provision of legally aided services. What sort of ‘market’ are we talking about? A truly competitive market would encourage independently contracting parties, each with

that competition for work drives down effects of price competition, for example, on

on public expenditure gives rise to a different

exemplify a market that is ripe for reform.

than they are willing to pay) and, second, fees (and we have seen only too clearly the

There is a

buyer. The public interest in keeping a cap have too many qualified lawyers, too many

know that the price to clients is often more

of those interests.

England & Wales has declined by around a

and commoditisation, I don’t believe that it

of legal services becomes too high (and we

in very different circumstances – is a balance

statistics show, the number of law firms in

My diagnosis so far, therefore, is that we

qualified people are, first, that the cost base

or clients’ interests: what it requires – often

consolidation of law firms. As Law Society

accelerating trends towards standardisation

The consequences of an over-supply of

regulation, to favour either lawyers’ interests

Reform has interests

to

balance

different

sufficient knowledge of the other and with equality of bargaining power.

This would

promote supply and demand at a price that

residential conveyancing work). Rising costs and declining fee levels result in a squeeze

In a marketplace for legal services, there

satisfied a volume of demand for value for

on profitability.

That, quite rightly, then

are three principal interests that must be

money from clients and an equivalent volume

turns the spotlight on the people who are

balanced: lawyers, clients, and the public.

of supply that secured an acceptable return

responsible for generating the profit and are

The ‘mood music’ of public opinion during

to lawyers. But there is more than one supply

entitled to share in it – in the traditional firm,

the last quarter-century has been supporting

at issue in relation to legal aid.

the equity partners. Not surprisingly, some

Government initiatives to remove restrictive

simply the provision of legal services by law-

of them (but not yet enough, in my view) have

practices and anti-competitive protection

firm suppliers paid for out of public funds.

been found wanting, and there have been

from the professions.

We have therefore

The demand from clients for the services of

bouts of ‘de-equitisation’ of partners as well

seen an inexorable shift in the balance of

these firms is also influenced by the ‘supply’

It is not


11

the barrister

of legal rights through legislation.

Here is

According to Law Society data, for example,

their own law firms.

another area where supply and demand are

the number of firms with more than ten

institutional relationships (achieved through

out of kilter. The Government is responsible

partners fell by 30% from 522 to 366 in the

consolidation), many smaller law firms will

both for the creation of legal rights in respect

five years to 2006; but those 366 firms (just

find themselves disenfranchised from access

of which legal aid for enforcement might be

4% of the total) accounted for more than half

to these sources of work.

required, and for the financial wherewithal

of all solicitors in private practice. Indeed,

for many of those affected to be able to

the largest 100 firms (barely 1% of the total)

pursue their rights. The supply and cost of

accounted for just over one-third of solicitors

publicly funded legal services is not driven

in private practice, but for about half of the

entirely by the expectations of a rapacious

£20 billion turnover in legal services.

Without significant

In towns and cities, law firms tend to be less concentrated than in rural areas. This might initially make the rural law firms more vulnerable to new entrants, on the basis that they are easier to ‘pick off’. Their current

legal profession; the Government itself has But the ‘retail’ legal market largely has not

competitive advantage of relationship and

felt these forces. With greater volume and

community provision might be lost over

processing in the conveyancing and personal

time (and profitability with it) to the scale,

injury markets, the need to scale up has

standard pricing, efficiency and technology of

been recognised.

But the potential entry

new entrants. These forms of consolidation

The current situation of a fragmented

of High Street and institutional brands into

have already changed the retail world of

supplier base inevitably builds in duplicated

the consumer market will drive further

corner shops, pharmacies and optometrists.

overheads at some cost to the system as

consolidation.

Co-operative Legal Services,

Consumers might bemoan the loss of local

a whole; and it clearly drives up the Legal

Halifax Legal Solutions, the AA, DAS, and

facilities, but they buy based on convenience

Services Commission’s administration costs

Capita, to name some of those who wish

and price.

in having to deal with so many suppliers. I

to participate in the emerging market for

therefore see the logic of seeking larger-scale

consumer legal services, will be impossible

providers.

But scale does not inevitably

to beat at the current levels of scale and

lead to economies of scale. Some aspects of

investment that characterise typical law firm

legally aided services are highly knowledge-

presence in this market.

to bear much of the responsibility for supply of need into the system.

It is not just the

financial tap that needs managing in order to match levels of demand with budgets.

to the client’s circumstances.

Examples

might be aspects of immigration and social welfare advice.

These do not inevitably

deliver economies of scale. An approach to legal aid funding that assumes a universal opportunity for scale and scale economies will fail to deliver the services and quality of service required.

But equally, current

suppliers refusing or resisting the invitation to consolidate and scale up where that can and should be achieved will result in a loss

proximity. In the emerging age of technological

aid firms might disappear as a result of

convergence, proximity to legal advice could

the proposed reforms.

mean proximity to a PC or even a TV screen

commissioned

The Law Society

research

that

suggested

in one’s home. A large, fragmented lawyer

that the figure might be twice that. In the

base cannot hope to invest in the technology

context of the market reforms as a whole,

to supply and compete in that market.

however, even 800 might be a significant underestimate. In the 7,500 or so law firms that have fewer than five partners (87% of the total), there is on average just three solicitors in each firm. This is not a sustainable, costefficient distribution of capacity. In fact, it

We therefore have to accept that consolidation

number is the group of sole principals. There

is required in the legal aid market just as

is a clear need for consolidation, and yet

much as it is needed in other parts of the

some practitioners are opting for increased fragmentation.

equate the legal services market with the legal professions.

Consolidation If there is one theme that comes through as we contemplate the future of the legal services The need to

reduce the number of firms is crystal clear, in the interests of quality, consistency, efficiency In the market for commercial

legal services, that need has been recognised through the natural forces of competition, and has been happening for a number of years.

fragmented

The market will grow

and prosper; the legal professions might not. We’d better start crediting clients with enough intelligence to decide for themselves what they want and how they want it. The message has been coming through loud and clear for too long now: lawyers generally are

not

perceived

alternatives. A

and cost.

We have to lose our current tendency to

to

understand

their

clients and consumers welcome affordable

consolidation?

market, it is consolidation.

In my view, such arguments

The Carter Review estimated that 400 legal

the only group of law firms that grew in total

legal services market. What will drive that

of the supplier base that consolidation dangerously confuse access with physical

intrigues me that in the five years to 2006,

of work.

threats to access to justice and the erosion could imply.

intensive, and require a considerable degree of technical legal input specifically tailored

I have heard all the counter-arguments about

supplier

base

could

be

Doing nothing simply gives

the new competition time and scope to offer

eaten alive in the core practice areas of

an alternative.

conveyancing, wills and probate, personal

a different approach to legal practice – to

injury, and employment. These areas of retail

composition, structure, methods of delivery,

consumer legal services will be determined

ownership, and financing.

by access to work. Home Information Packs will potentially remove solicitors’ customary access to residential conveyancing; legal expenses insurance and affiliation groups (such

as

trade

organisations)

unions

could

come

and

motoring

to

dominate

access to personal injury and employment work – even if they choose not to set up

Doing something requires


12

the barrister

No quick fix to tackling street crime By Enver Solomon, Deputy Director of the Centre for Crime and Justice Studies at King’s College London

U

nlike any other perceived crime problem, robbery has been the focus of unprecedented attention by New Labour, at one point being elevated to the status of a national emergency. Successive Home Secretaries and Tony Blair have made it a key priority in the fight against crime. Whilst overall crime, as measured by the British Crime Survey, has fallen by 35 per cent since Labour was elected in 1997, police recorded robbery has been on an upward trend. Fuelled by media stories claiming that the ‘forces of law and order are losing control of the streets’ the government has felt compelled to respond playing up the problem rather than taking a more measured approach. Yet the government’s strategy has been far from effective and has failed to take account of the evidence. Home Office research shows that robbery is concentrated in just a few police areas which are predominantly urban. The research found that robbery disproportionately takes place in a small number of police Basic Command Units (BCUs). These areas are not

large conurbations, but localities within a city. Just seven per cent of BCUs in England and Wales accounted for 42 per cent of recorded robberies in 2001-2002. This is far in excess of other types of comparative crimes, such as car crime and burglary. It is important to note that these areas are also characterised by wide disparities in wealth. So for example, the borough of Islington in London which is one of the twenty highest BCUs for street robbery has pockets of low income households next to households with very high incomes. The same can also be said for South Manchester, another area in the top twenty BCUs. There are other important characteristics of street robbery that need to be recognised. A high proportion, two out every five incidents, involves young people under the age of 21, as victims and offenders. This represents a significant increase over the last ten years and highlights the predominance of street crime between school children. While cash is most likely to be stolen from the victim during personal robbery over two in every five personal robberies involve mobile phones

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being stolen or demanded from the victim. In addition, minority ethnic groups are over represented as victims and offenders in many of the areas which have high levels of street robbery. Over forty per cent of victims are employed at the time of the robbery. School children and students account for 35 per cent of victims. Analyses of police data and research by the Home Office, shows that contrary to media reports, a significant proportion of the recent increase in robbery is effectively an extension of traditional bullying. Whereas previously young victims who had ‘lost’ their bus fare or dinner money would never have featured in the crime statistics, they are being relieved of their new mobile phones or MP3 players and parents have been reporting these robberies to the police. A large number of robberies, of course, are never reported to the police. It is important to acknowledge therefore that police recorded data only provides a partial picture of the total amount of robbery. This inevitably raises questions about relying on the criminal

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the barrister

justice agencies, particularly the police, to be the main focus of a strategy to tackle robbery. Nonetheless the New Labour government made robbery, and later street crime, a key target for police forces as soon as it entered government. The initial target was to reduce robbery by 14 per cent in the five police force areas where it was most common in the five years to 2002-2003. However from early in Labour’s first term robbery started rising. An overall increase of 26 per cent between 1998-1999 and 1999-2000 was followed by a 13 per cent rise in the following year, driven almost entirely by the rise in personal rather than commercial robberies. Three years into office, New Labour was faced with what the media was describing as ‘civilized society under siege’. The government chose to respond as though it were a national emergency. In March 2002 the then, Home Secretary, David Blunkett, announced a major Street Crime Initiative. In terms which echoed the media stories, he referred to the need ‘to reclaim our streets for the decent law-abiding public … to live peacefully and to go about their business freely, untroubled by the fear of attack’. The Prime Minister took personal control convening a cross departmental body that included nine cabinet ministers. The initiative was driven by two-weekly meetings held in the Cabinet Office Briefing Room (COBR), which is normally used for co-ordinating the response to terrorism or civil emergency. The number of police forces covered by the initiative was doubled to the ten forces which, in total, accounted for 80 per cent of all robberies. Just under £70m was allocated to them, although this was often accompanied by expectations of matched funding from local sources. There were numerous, different strands to the Street Crime Initiative from work with mobile phone companies to make stolen handsets unusable to a major new programme to put police officers back into designated secondary schools with an explicit emphasis on their operational rather than any educational role. The term ‘street crime’ was progressively expanded to include ’carjackings’ and firearms offences, although it continued to be presented both in the media and by politicians themselves largely in terms of ‘muggings’. So did the initiative work? Not surprisingly the government was eager to show the impact of its endeavours had been almost instant, not least because Tony Blair had promised to have the problem ‘under control’ within six months. On the basis of interim results published at the six month point the Home Office claimed the initiative had been a resounding success. In his subsequent New Year’s message Tony Blair urged the county to have the courage to rise to challenges at home and abroad arguing that ‘the 16 per cent cut in street crime following the Street Crime Initiative shows what can be done’. The Prime Minister did not know at the time, however, that the decline was not going to be sustained.

The latest Home Office figures show that police recorded robberies have been rising steadily over the last two years. Between October and December 2006 robberies were 8 per cent up on the same period in the previous year. When the annual crime figures are published in July robberies will have most probably topped 100,000 again for 2006-2007. Previously there had been a decline from a high of 121,000 in 2001-2002 to just under 90,000 in 2004/2005. The recent rise means that the Home Office has failed to meet its target to reduce robbery in the ten street crime areas by 14 per cent in the five years to 2004-2005. Despite missing this target the Street Crime Initiative clearly did have a short term impact. All the resources and effort concentrated on the problem undoubtedly delivered a reduction in police recorded robberies. However, there are certainly questions over the initiatives sustainability and issues for the police in balancing the need to tackle robbery and street crime with other commitments and priorities. Attention was diverted away from what are arguably more harmful crimes, such as domestic violence which in England and Wales accounts for the murder of one woman every three days. Also, given that a lot of street crime will never be reported to the police the impact of the initiative on the total amount of robbery will have been more limited than the official data suggests.

13

determined by criminal justice polices but are related to underlying social and economic developments. This was highlighted in a recent analysis by the Prime Minister’s Strategy Unit which concluded that 80 per cent of the reduction in the official crime rate since 1997 was the result of economic, not criminal justice factors. So as long as young people continue to live in an economically polarized society where they are excluded from sharing equally in the nation’s wealth and their self worth is over dependent on possessing the latest and most fashionable consumer good the problem of street crime will not go away. The next time the government is faced with newspapers warning of a mugging epidemic and the police losing control of the streets it would be wise to resist the temptation to turn to short term police led initiatives and develop a more evidence based response that looks beyond the criminal justice agencies for solutions. Enver Solomon is Deputy Director of the Centre for Crime and Justice Studies at King’s College London. With colleagues at the Centre he recently wrote ‘Ten years of criminal justice under Labour: An independent audit’ which is available to download at www.kcl.ac.uk/ccjs

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14

the barrister

The Probation Service and public protection By Harry Fletcher, assistant general secretary Napo

pilloried in the press and by Home

I

The criticism has continued remorselessly.

Office Ministers after the revelation

Late last year, yet another Government

that 2 offenders, Hanson and White,

report came out showing that: â&#x20AC;&#x153;1 in 5 of the

Hanson was released from prison in 2004

had murder Chelsea banker, John

most high risk offenders under supervision

and White was already on a DTTO.

Monckton, and that they had been on prison

in the community broke the terms of their

central allegation in the case was that a risk

licence and under a Treatment and Testing

freedom and committed a further serious

assessment was not done within the required

Order (DTTO) at the time of the offence. The

violent offence.

Overall the figures show

5 days. The assessment was either delayed

ferocity of the attack on the integrity of staff

that more than 60 serious offences defined

or was subsequently lost, depending on who

took even me by surprise.

as murder, attempted murder, rape, arson,

you talk to. Therefore supervision was less

manslaughter, kidnap, and armed robbery

intensive than it might have been. Allied to

During the next 12 months, the service and

were carried out by offenders under the

that it is also alleged that the Multi Agency

individual members of staff were criticised

supervision of the Probation Service and

Public Protection Arrangements were not as

over half a dozen cases where high profile

other agencies.â&#x20AC;?

strict as they could have been.

n December 2005, a number of

child abuse cases some 20 or 30 years ago.

individual probation officers were

sidelined and 4 individuals were suspended. Thankfully in the end the evidence was not

offenders committed serious offences while

sufficient to see them sacked.

The

However,

even if supervision had been more intense it

on parole. They included the killers of Mary-

Hanson and White was the first case. Several

could never have been for more than a few

Ann Leneghan, the offenders Hazlewood,

months before the eventual conviction, union

hours a week. Probation is not and cannot

Boudaddou and Rice, and the report into the

officials were told that London Probation

be a 24 hours surveillance agency.

treatment of Michael Stone. The criticisms

would accept corporate responsibility for

that individuals received were not dissimilar

what happened, and individuals would not

Hanson was moved several times during

from those handed down to social workers in

be blamed. In the event that agreement was

the last few months of his sentence, which

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the barrister

15

clearly contributed to the so called inadequate

to be criticised at all in this case it was the

number of further serious offences committed

assessment. Prison overcrowding and lack

Health Authority. The issue of whether Stone

by persons in the top 2 categories fell from

of resources in London were also clearly

actually committed the murder is an issue for

2004 from 0.6 to 0.44. This clearly is a very

issues.

the legal process.

small percentage of those deemed dangerous.

Hanson did all of his offender

behaving courses well and was thought to

However, conversely, something like 75% of

have improved and he was refused parole at

There are numerous other case histories

all further serious offences are committed by

the first application.

where the processes are similar.

What

people in the lowest tier, Tier1. That is those

characterised all these cases was that

who are deemed to require the lowest level

The reality for London was that there were

politicians

of supervision.

serious organisational and financial problems

inadequate resources, and then blamed

at the time which had led to low morale.

individuals when further horrific offences

Government has made public protection its

Inexperienced staff were supervising high

occur. In adopting that approach the system

number one priority. It has set up a number

risk dangerous offenders.

they invented remains in tact.

of systems, including MAPPA, to try and

Indeed one of

set

up

systems,

provided

the highest risk offenders in prison at that

win public confidence, but it cannot deliver

time was being seen by an inexperienced,

Matters have come to a sorry pass.

untrained, Probation Service Officer.

months ago a sex offender absconded from a

resources.

secure bed hostel in Bradford. Several hours

few were put under 24 hour surveillance, to

Charles Clarke, who was the Home Secretary

later a young girl was seriously assaulted

thereby minimise the chance of any murders

at the time, pledged that everyone in prison

in Shipley and thrown into a canal.

The

or serious offences ever happening again,

and under supervision in the community

perpetrator jumped in after and tried to drown

some 15,600 police officers would be on

would have a named offender manager to

her.

surveillance at any one time, which is a

minimise the chance of further offences. Yet

however, was the principal suspect. He was

huge proportion of operational staff.

a typical London Borough has 50 to 60

caught in Somerset a day later. By that time

addition, the Probation Service has in total

lifers, 20 sex offenders and over 200 other

West Yorkshire Police had indicated they had

12, I believe, extra secure beds, all provided

individuals serving 4 years or more on their

arrested someone else in connection with

by a charity, for the whole country.

books. The vacancy rate was about a dozen

the canal incident and no longer wanted the

in each London Borough.

hostel resident.

He thankfully failed.

Two

The absconder,

public protection because it has inadequate If, for example, all the critical

In

I rang the Head of Public

What Ministers demand, therefore, and what

Protection on the Saturday afternoon to tell

we can deliver is clearly impossible. When

There was also the case of case of Michael

him what had happened. He said it was the

the Government set up MAPPA in 2001 it

Stone.

Despite early press reports, the

best news he’d heard for months. That is

was an add-on. No additional resources were

probation officer in this case was not directly

what we’ve come to enormous relieve when

made available. Police and Probation had to

blamed. She was just made to feel that it was

the assault wasn’t ‘one of ours’.

second people to MAPPA work from within

her fault. Michael Stone was a chronic drug

their existing budgets.

Nevertheless, the

addict and had undiagnosed mental health

In 1997 Ministers set up a unit in the Home

figures outlined would suggest that Probation

problems. According to the probation officer

Office to put in place plans to deal with

and Police working together are actually

it was unclear whether he was psychotic,

parolees or others released from prison

doing pretty well keeping the number of

schizophrenic or had a personality disorder.

who were still thought dangerous. A small

further offences down to less than half a

The absence of a diagnosis may have meant

number of staff including probation and

percent, especially given the characteristics

that he fell between various therapeutic

police officers were seconded into the unit.

of the group.

programmes.

The number of cases per month started

He was only seen on an

exceptional basis. He was on a methadone

of at 10 to 15.

However, within a year it

The main priority for organisations like Napo

community reduction programme and topped

had grown to 25 and 30 as our ability to

is to argue continuously for further resources

up with whatever he could get hold of, usually

assess dangerousness got better.

In each

for MAPPA, for energy to go into developing

heroin. He was described by his probation

case Ministers had to approve the plans.

our ability to assess dangerousness and for

officer as unstable and potentially dangerous

On one occasion the Minister at the time

surveillance to be provided where needed.

in the months leading up the murder.

was horrified at the probable release of a particularly dangerous man.

Staff trawled

His probation order expired two months before

through his file and found an unprosecuted

the murder. The probation officer involved

assault which was duly dealt with and he

described how it was virtually impossible to

ended up getting four more years. Gradually

deal with the offending behaviour because

it became apparent that this system was

of the dual diagnosis of drug addiction and

inadequate and it led to the establishment of

mental health difficulties. Clearly probation

MAPPA, put on a statutory basis in 2001.

was of assistance.

Stone asked for it to

continue beyond the termination of the

Assessment tools are now more sophisticated

order, but of course it couldn’t. When the

and the dangerous offenders are now tiered.

report was finally digested, if anyone was

The latest figurers actually show is that the


16

the barrister


the barrister

17

Entry to the Bar: Lord Neuberger’s Interim Report, April 2007 The Interim Report suggests the possibility of chambers selecting their pupils before students start the BVC. If this is done under the OLPAS system, it will mean that (except for CPE/GDL students) pupillage selection will happen before graduation, so decisions will have to be made without the benefit of knowing degree results By Stuart Sime, BVC Course Director,The City Law School

L

ord Neuberger of Abbotsbury’s Working Party produced its Interim Report on Entry to the Bar in April 2007, the consultation date for which was 31 May 2007. The Interim report is the first phase in the Bar’s response to the Government’s Report on “Increasing Diversity in the Legal Profession” (November 2005). In the foreword to the Government’s Report the Parliamentary Under Secretary of State for the Department for Constitutional Affairs said: “In order to create a more diverse legal profession, talent must be drawn from all quarters of our society. I strongly support a profession that is open to the most talented people in our society, regardless of social or educational background.” Lord Neuberger’s Working Party is looking at two things: (a) improving funding for new entrants to the Bar; and (b) identifying and removing barriers to entry for minority and socially and economically disadvantaged students. Before going any further I had better make a declaration of interest. My father was a shipwright, and although I passed the 11 plus I went to a state school which was converted into a comprehensive when I was 14. I was awarded a LL.B. by the University of Newcastle-upon-Tyne, did my pupillage at 11 Stone Buildings and 169 Temple Chambers, and after 13 years as a tenant am now the Course Director of the BVC at The City Law School.

Pupillage and tenancy numbers Back in the 1980s and 1990s, when I was seeking to enter the profession, students saw pupillage as a minor hurdle, but obtaining a tenancy as the main barrier to be overcome. This is borne out by the figures. In 1989 to 1991, 70 to 75% of BVC students secured pupillage (“Studying for the Bar”, Shapland, Johnson and Wild, 1993), but only 41% of those starting the BVC ended up as tenants (“Starting Practice: Work and Training at the Junior Bar”, Shapland and Sorsby, 1995). At that time the BVC was open only to students intending to join the Bar of England and

Wales. Part of the loss was through students failing the BVC (20% in 1989-90), but the main problem was moving from pupillage to tenancy. Today, passing the BVC has approximately the same level of difficulty as 17 years ago. About 80 to 85% of students pass the BVC either first time or after the resits. Table 1 shows the numbers in recent years enrolled on the BVC, registering their second six months’ pupillage, and becoming tenants (statistics from the Bar Council’s website). Now, the main problem is obtaining pupillage. Pupillage numbers are down, probably as a result of compulsory funding. The big fall, from 700 to about 550, corresponds with the implementation of compulsory funded pupillages. Pupillage numbers are now closely linked to the number of tenancies each year. Chambers seem to have abandoned the ageold idea of offering pupillage as a matter of social conscience. The feeling is that, having invested in funded pupillages, chambers want to keep their pupils as tenants, but will only invest in those likely to be taken on as tenants.

Table 1

BVC students, Second Six

Year

BVC students

2nd six pupils

New Tenants

2000-01 2001-02 2002-03 2003-04 2004-05 2005-06

1,403 1,379 1,332 1,406 1,697 1,745

700 724 702 557 598 552

535 541 698 601 544

Pupils and new Tenants

Not available

(b)

Two more BVC Providers have been validated in recent months, so the number of BVC students is likely to increase to about 1,900 in the near future.

Social Barriers to Joining the Bar In the days when 94% of those who passed the BVC entered chambers as pupils, there should have been few restrictions based on socio-economic grounds for becoming a pupil. The main problems at that time were access to the profession for female and ethnic minority applicants. Table 2 sets out figures for female and ethnic minority respondents to surveys from 1987-91 from “Starting Practice: Work and Training at the Junior Bar”, Shapland and Sorsby 1995.

Table 2 Female and Ethnic Minority Survey Respondents 1987-91 Stage

Female Ethnic Minority respondents respondents

BVC 1989-90 39% Pupils 1990-91 44% Tenants up to 29% 4 years’ call 1987-88

14% 5% 1%

By 2005-06 women had overtaken men in overall numbers being Called to the Bar (51.5%). As time has progressed women and ethnic minorities have become better represented at the Bar, as the figures for the position in 2006 (Bar Council) in Table 3 show.

Table 3 Self-Employed Barristers December 2006

The overall result is that in 198991 almost everyone who passed Total No. with ethnic Female Ethnic group data minority the BVC (about 80%) obtained 12,034 10,572 3,653 1,098 pupillage (about 75% of those Number 30.3% 10.4% starting the BVC, so about 94% Percentage of those passing), but only 50% of those passing became tenants. In 2004-05, about 80% passed the BVC Intensifying competition in recent years (say 1,360), but only 44% of those secured has meant that increasing numbers of wellpupillage, and 40% of those passing became qualified students are being unsuccessful tenants. in their search for pupillage. With the Two other factors have to be kept in mind: fragmentation of the BVC across a number (a) In some BVC Providers, up to 40% of Providers, there has been a lack of the students are from overseas, of recent research on how this has and have no intention of practising impacted on the ability of students p.20 in England and Wales; and across the range of socio-economic


NEWS ROUND UP

18

the barrister

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS CHAIRS APPOINTED NEW BSB COMMITTEES NEWS NEWS NEWS NEWSTO NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS On 24 May 2007 The Bar Standards Board (BSB) announced the appointment of Dr John Carrier as Chair of its Education and Training Committee NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS (E&TC) and Dr Vicki Harris as Chair of its Performance and Best Value Committee (PBVC). Dr Carrier and Dr Harris are both lay members of the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS BSB and bring a wealth of relevant experience to the posts. Dr John Carrier has had a long career in education and public service, previously a NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS JP and Vice-Chair of the Centre for Advancement of Inter-professional Education, he recently retired as Dean of Graduate Studies at the London NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS School of Economics (LSE). He taught and researched at the LSE for over forty years, focusing on health and social policy. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Dr Vicki Harris, is a Chartered Certified Accountant and has a worked extensively in professional regulation. She has held several senior civil NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS service posts in the Home Office and Department for International Development and also served on the Council of the Association of Chartered NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Certified Accountants (ACCA) for over eighteen years, chairing the Examination and Investigations Committees and the Appeal Committee. She NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS continues to be closely involved in the area of professional standards, and is currently Chairman of the Taxation Disciplinary Board, a member of NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the Disciplinary Panel of the Institute of Legal Executives, and serves for the ACCA on its Disciplinary and Regulatory Panel. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Ruth Evans, Chair of the Bar Standards Board said: "I am delighted that John and Vicki are to be chairing these two critically important NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Committees." “Both will play an invaluable role in delivering the BSB’s regulatory objectives and will provide a dynamic partnership with our NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS professional members to ensure the primacy of the public interest in our work." NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Government proposals collapsing under Attorney General announces new justice NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS network to give legal assistance abroad weight of informed criticism NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSa NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS On 16 May 2007 the Attorney General announced new initiative; theNEWS NEWS The Law Society has warned that the government must not ignore NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Justice Assistance Network (JAN),NEWS whose core responsibility will be toNEWS NEWS the latest damning report on the reform of the legal aid system NEWS NEWSlegal NEWS NEWSmore NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS make overseas assistance effective. which was published on Tuesday 01 May 2007 by a group of NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS highly respected MPs. The Constitutional Affairs Select Committee NEWS NEWS NEWS NEWSwill NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The Justice Assistance Network (CASC) report says the government's legal aid reform programme NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS is taking an overwhelming risk, without adequate research or a NEWS NEWS NEWS NEWS NEWS NEWSassistance NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS • IdentifyNEWS the areas of greatest priority for overseas proper timetable. The report mirrors the grave concerns raised by in the legal and NEWS justice fields, are targeted NEWS NEWS NEWSensuring NEWS resources NEWS NEWS NEWSonNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the Law Society over many months, and calls on the government those areas NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS to halt proposals to apply fixed fees for legal aid work. It says NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS that their plans to impose fixed fees, followed rapidly by price • Allow the UK to provide consistent, timely and NEWS strategicNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS competitive tendering across the entire legal aid system is a legal assistance to developing countries NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS "breathtaking risk". NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Des Hudson, Law Society chief executive, says this report backs • Provide a conduit to an extended pool of resources, where NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS up the Society's concerns that the government hasn't thought public and privateNEWS sector will workNEWS alongside each other in aNEWS targetedNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the reforms through:"The findings of this group of cross party approach – providing legal structure and governance to those who NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS MPs is a damning indictment of the government's ill-thought out need it most NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS and disastrous reforms. The government cannot possibly ignore NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS this evidence from a committee with a majority of government • Enable the government to ‘work smarter’. The new approach NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS members, which highlights the risks these proposals pose to the will underpin the wider aims of reducing poverty, promoting the rule of law, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS which contributes to promoting good governance, preventing conflict most vulnerable in society. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS and fighting international crime "The government's failure to do its own research was cavalier, but NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS to ignore the findings of this report and the numerous responses NEWS NEWSsaid, NEWS NEWSthis NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Lord Goldsmith “In putting network in place we areNEWS ensuringNEWS NEWS the Law Society and others have made would be nothing short NEWS NEWS NEWS NEWSpoverty NEWShistory. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS that justice is atNEWS the heart of making The JusticeNEWS NEWS of irresponsible. Is the government at last going to listen to this NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Assistance Network marks an essential step forward in NEWS providingNEWS NEWS message, or will it arrogantly bulldoze through its proposals?" NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS assistance and intervention overseas. We have a duty to provide legalNEWS NEWS The committee of MPs also noted that there had been a NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS assistance to theNEWS places NEWS that need it mostNEWS and in NEWS doing this we areNEWS NEWS "catastrophic deterioration" in relations between practitioners, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS making itNEWS a priority to address poverty and NEWS humanitarian causes. their representative organisations and the LSC. "The Law Society NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS has asked on numerous occasions for the establishment of a NEWS NEWS NEWS NEWS NEWSbeNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The importance of helping to NEWS restore NEWS rule ofNEWS law cannot proper negotiation process but our concerns have been ignored", NEWS NEWS NEWS NEWS NEWSvisit NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS underestimated. I saw thisNEWS first hand on a recent to Afghanistan. said Mr Hudson. He added: "This report by the CASC and our own NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS independent economic analysis (PDF, 407kb) reinforces the fact By pooling publicNEWS and private sector resources, JusticeNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSthrough NEWSthe NEWS that these reforms must be reconsidered. We are calling for a Assistance Network and the International Pro Bono unit we are NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS halt to these reforms until proper scrutiny of the risks has been making better of resources, responding NEWS NEWSuse NEWS NEWSworking NEWS smarter NEWS and NEWS NEWStoNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS done." specific needs”. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS On the key government reform - price competitive tendering - the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS committee said the government would be "reckless" if it did not The Justice Assistance Network is the result of several years work NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS pilot it carefully first, on a limited geographical basis. undertaken by the Attorney General’s office, by the Department NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSforNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The committee also expressed concern that some of the reform International Development, the Foreign and Commonwealth Office NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS proposals may contravene race relations legislation. The report and the NEWS Ministry NEWS of Justice. The Attorney General,NEWS a keen NEWS advocateNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS points out that "it is imperative that reforms that potentially affect of international pro bono work, has paved the way for this new coNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS BME clients disproportionately should be robustly assessed on the coordinated approach to international legal assistance. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS basis of comprehensive and reliable statistical information."* NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Gareth Thomas, International Development Minister, said: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The Law Society's What Price Justice? campaign was launched NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS “One in five of the world’sNEWS population livesNEWS in extreme poverty, and itNEWS NEWS in November. The Law Society is backed by campaign partners NEWS NEWS NEWS NEWS NEWS NEWS NEWSwomen NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS is often the poorest and most excluded people, including andNEWS NEWS including Mind, Shelter, NSPCC and the Refugee Council in the NEWS NEWStoNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS children,NEWS that areNEWS denied access justice. NEWS NEWS NEWS NEWS NEWS fight to get adequate legal representation for those who are most NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS in need of it.


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19

NEWS ROUND UP

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS QUALITY AND ACCESS CRUCIAL ISSUES IN NEWS EXAMINING ENTRY THENEWS BARNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSTO NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS On the 29 May 2007 The Bar Standards Board (BSB) submitted its comment on the interim report of the Bar Councilâ&#x20AC;&#x2122;s Entry to the Bar Working NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Group. The submission is aimed at advising the Working Group, which is chaired by Lord Neuberger of Abbottsbury, as to the likely approach of NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the BSB on the issues raised. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The BSB shares the view of the Working Group that equality of opportunity at entry is paramount to delivering a Bar that is diverse and NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS representative of the society it services. Financial constraints should not be the sole reason high-calibre candidates are unable to gain access to NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the profession. The BSB therefore supports all initiatives designed to make it easier for meritorious candidates from financially disadvantaged NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS backgrounds to become barristers. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS It does not however share the view of the Bar Council Working Group that "over-supply" of students on the Bar Vocational Course (BVC) is of NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS itself a cause for concern. Indeed, based on current evidence, the BSB does not see how limiting numbers on the BVC would bring any quality or NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS diversity benefits. Similarly, on quality, the BSB has some concerns regarding the proposals of the Working Group, in particular the proposal to NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS increase the standard of entry to the BVC to a 2:1 degree, in the absence of firm evidence as to the likely benefits. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Regarding pupillage, the BSB recognises the difficulties faced by those leaving the BVC and agrees with the Working Group that Chambers NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS should be encouraged to offer pupillages before students commit themselves to a course. The BSB is itself, currently examining ways of making NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS pupillages more accessible. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Mark Stobbs, Director of the BSB commented: "The BSB, through its newly established Education & Training Committee, is keen to consider NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the Working Group's proposals on quality and access to the profession. As we emphasise in our submission, we will do so through careful NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS examination of the evidence base for the proposals. We will then use this information to establish the potential nature and case for change." NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Law Society defends minority solicitors LAPGNEWS comment expansion of NEWS criminal NEWS NEWS on NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS defence service call centre scheme The Law Society has warned black and minority ethnic NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS that NEWS NEWS NEWS NEWS (BME) solicitors and communities couldNEWS be disproportionately NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The LSC announced on 22 May 2007 that it intends to proceed with disadvantaged the government's reforms of legal aid goNEWS ahead NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSifNEWS NEWS NEWS NEWS NEWS a scheme whereby all requests for advice in the police station will in their NEWS current form. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS be directed via the Duty Solicitor Call Centre, even where the client NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS has requested their own solicitor, and in less serious cases, the only AndrewNEWS Holroyd,NEWS vice president the LawNEWS Society NEWS said: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWS advice given will be telephone NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS advice from the centralised telephone service CDS Direct. "The government's ill thought proposals could block NEWS access NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSout NEWS NEWS NEWS to justice for thousands of peopleNEWS in minority ethnic communities. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS LAPG Director Richard Miller said, "This change will confuse These reforms, in theirNEWS currentNEWS form, disproportionately affect NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS vulnerable clients into forgoing legal advice in the police station, black and asianNEWS firms, many of NEWS which may be forced outNEWS of the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS which may well lead market.NEWS Eligibility to legal aid is meaningless there NEWS are no NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS ifNEWS to more miscarriages of justice. We do not see how this proposal can lawyersNEWS to represent theNEWS most vulnerable in society fromNEWS every NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS save anyone's time or money. It replaces a single phone call from the community." NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS police to the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS solicitor with a complex procedure that will involve numerous calls at NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the LSC's expense. The Black Solicitors and Society of NEWS Asian Lawyers NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSNetwork NEWS NEWS NEWS NEWS have jointly launched proceedings against the government on NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS "Diverting clients to CDS Direct when they have asked for their own the grounds that a full NEWS racial impact assessment of the NEWS reform NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS solicitor does not make sense from a purely human perspective. proposals has not been carried NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSout. NEWS NEWS NEWS NEWS Where a solicitor has an established relationship with the client, the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS solicitor may well be able to persuade the client to accept the situation Read more ourNEWS campaign at NEWS www.whatpricejustice. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSabout NEWS NEWS NEWS NEWS and co-operate as necessary. lawsociety.org.uk. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Conversely, a telephone call from a complete stranger may well For more information, theNEWS Law Society press office NEWS on 020 NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWScontact NEWS NEWS NEWS merely generate a stream of invective and a refusal to co-operate. We 7320 5811. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS therefore believe that the police will be significantly disadvantaged NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS by this scheme as well. "All in all, we believe there are many good NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS reasons for not going ahead, and NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS none for going ahead." NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS LAPG is an independent organisation representing over 500 firms NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS undertaking legal aid work, of whom over one half do criminal defence NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS work. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Richard Miller may be contacted on 020 7960 6843 NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS


20

the barrister

backgrounds to secure pupillage. The impression I have gained from my position in running the p.17 BVC at City University is that it is becoming disproportionately more difficult for students from more disadvantaged socio-economic backgrounds to obtain pupillage.

Neuberger Proposals The Interim Report sets out a number of provisional views on how to create a fairer system reducing the effects of disadvantage. Speaking to “Legal Week” (5 April 2007) Lord Neuberger says the Working Party is trying to cover the whole area from the beginning of education through to a career at the Bar, seeking to find practical ideas which together will make a positive change. Schools and universities Proposals are made in the Report for better information and placement programmes in schools, and better information on careers at the Bar in universities. At these stages other suggestions are for more mock trial competitions and lectures, together with individual mentoring, in schools, discussions with law faculty staff and more university visits by practitioners, and asking whether chambers could cast their net more widely when it comes to targeted recruitment. There is little reason to believe that the real problem lies at these stages. There is little evidence to suggest that potential applicants from disadvantaged backgrounds are put off applying to study law at university (5.8% of the UK student body study law, making it the one of the most popular subjects). While there is a higher than national average figure of public and state school educated students on the BVC, students from state schools form the majority (63.1%) on the BVC across the Providers (Bar Council “BVC Student Survey on Aspirations for Practice at the Bar”, 2006). Ethnic minority figures on the BVC are difficult to interpret because of the large numbers of students from overseas jurisdictions.

The BVC There are four provisional proposals and four possible innovations stated in the Report relating to the BVC. They include: • Increasing the standard required to pass the BVC (proposal (b)). The present standard prescribed by the Bar Standards Board is “ready for pupillage” • Requiring BVC Providers to publish the number of pupillages and tenancies obtained by their graduates over the previous 5 years (proposal (c)) • Introducing a formal limitation on BVC numbers (possibility (e)) • Increasing the standards required for enrolment on the BVC (possibility (g)) Detailed research is needed before any of these are implemented. The real danger is that each and all of them will have the effect of deterring or disqualifying disproportionate numbers of students from disadvantaged backgrounds from a career at the Bar. It has

been suggested that there should be an upper second class requirement for enrolment on the BVC. In 1994 (when the BVC was open only to students intending to practice in England and Wales) 71% of black and ethnic minority students at the Inns of Court School of Law had a lower second class degree, compared to 42% of white students. Of course there has been degree classification inflation since then, but the likelihood is that such a change will disproportionately impact on ethnic minority students and students from poorer economic backgrounds. Similarly, if there is a formal limit on BVC numbers, the question is who will be frozen out? Providers operate an anonymous admissions system (through the Bar Standards Board) which is based on an online application form and references from university tutors. Students at universities that do not have a 35:1 staff:student ratio (which is common in many law schools) are going to have better references, and no doubt better predicted results, than students who are not really known by their tutors. I suspect the thinking is that by denying places on the BVC to those who “have no chance at the Bar”, and dissuading those with little chance by publishing depressing statistics, that we will be left with a small number of high quality students. The problem is that predominantly they will be students from a narrow social band. It is not uncommon for public school children to achieve 4 grade “A”s at “A” level. While this is not impossible at state schools, this tends to be an outstanding result. Often, bright children from state schools need several years on a level playing field (university, the BVC, and pupillage) to get over their disadvantages. My fear is that these proposals will remove these people from the system before they have had the chance to catch up.

Pupillage There are seven proposals and possibilities raised in the Interim Report dealing with pupillage. They include: • Bar Council training for all chambers in fair pupil selection, aiming to ensure that the most able students are selected, irrespective of background (proposal (c)) • Requiring chambers to inform students of the outcome of their pupillage applications before BVC Providers require a commitment to payment for the BVC (possibility (d)) Having chaired my chambers’ pupillage committee for some years, and having spoken to many members of the Bar with similar responsibilities, I am convinced that right across the profession every care is taken to be fair, objective and non-discriminatory in selecting pupils. The problem is that each set is only selecting one or two pupils. Even under OLPAS chambers receive extremely large numbers of applications, many from students with exemplary academic records.

Selecting one or two pupils when a number of applicants will have near perfect “A” level results and are either at or graduates from good universities, or have professional qualifications in other fields, is never easy. Chambers look at attributes beyond the purely academic (particularly mooting, debating and mini-pupillages), but it would be bizarre if most chambers did not select their pupils from those with the strongest qualifications. The Interim Report suggests the possibility of chambers selecting their pupils before students start the BVC. If this is done under the OLPAS system, it will mean that (except for CPE/GDL students) pupillage selection will happen before graduation, so decisions will have to be made without the benefit of knowing degree results. It is well-known (see “Ethnicity and Degree Attainment”, Broecke and Nicholls, Department for Education and Skills, 2007) that even after controlling for a range of socio-economic and other factors, students with an ethnic minority background are at a disadvantage at a statistically significant level across the whole university sector. The same can be said about students from poorer socio-economic backgrounds and those who went to state schools rather than public and independent schools. I know from personal experience that state schools are not equipped to give bright children the level of support and career guidance they need. Often they are not even advised about applying to Oxford or Cambridge, or briefed on interview techniques. Sheer numbers in state schools and most non-Russell Group universities prevent teachers and tutors knowing individuals in any depth, making it impossible to obtain a meaningful reference for admissions or bursary purposes. The worry is that chambers’ pupillage committees are not equipped to be able to make informed decisions compensating for these disadvantages. This may mean that pupillage decisions are made primarily on attributes which applicants from public and independent school backgrounds find easier to achieve. While training to avoid unfair treatment (proposal (c)) must be a good thing, it is difficult to see how this will be effective if pupillage decisions are made before degree results are known (possibility (d)). Research conducted for the Inns of Court School of Law in the 1990s concluded that: (a) while “A” level results were a predictor of success on the BVC, they were only a weak predictor; (b) the best predictor for BVC success by a substantial margin was degree classification. Pupillage committees are looking even further ahead than BVC success, namely likely success at the Bar. Logic would dictate that “A” levels scores are even less likely to be effective at predicting ability at the Bar than aptitude for the BVC. In fact, pupillage committees need as much information about


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applicants as they can get. This should include degree results and if possible BVC results. Certainly at present many chambers ask for provisional BVC results in interviews during the BVC year, and I know many students who are unsuccessful in obtaining pupillage while on the BVC succeed after doing particularly well on the BVC. Another problem is that pre-BVC pupillage selection means that applicants will be applying to chambers very early in their legal careers, before their ideas and preferences are properly formed. In recent years, the single most successful group entering the profession has been those entering through the CPE/GDL route (14% of students on the BVC, but 25% of new tenants, “Starting Practice: Work and Training at the Junior Bar”, Shapland and Sorsby,1995). Such students, after a few months studying the core legal subjects, are not going to be in a position to know which types of specialised chambers they should apply to. The same report shows that while 87% of pupils wanted to specialise, four years later only 39% of the same sample were in fact specialising at the Bar. The danger is that pre-BVC selection of pupils will result in mainly students from privileged backgrounds being selected, and finding themselves in chambers not doing the type of work they want to be doing by the time they are tenants.

Conclusion There is a real problem in achieving fair and open access to the Bar for applicants from across the whole range of society. I know the Bar is committed to seeking to find workable solutions, and is to be congratulated in setting up Lord Neuberger’s Working Party to look into the issues. My feeling is that the real problems are: (a) The apparently relentless expansion of BVC courses; and (b) The significantly reduced numbers of pupillages available compared to the numbers available pre-2003. In other words, there is no need to reduce the number of BVC places, simply avoid further expansion. On pupillage, my suggestions are: (i) To remove the compulsory nature of pupillage awards. Hopefully the sets that reduced their pupils in 2003-04 will increase their numbers again; (ii) Although it may seem counterintuitive (in that of course applicants like to be sure of the future), to delay pupillage selection for as long as possible. I suspect that most of those selected for pupillage before the start of the BVC come from privileged economic backgrounds; and (iii) Use the money saved on pupillage awards for Bar Council administered

21

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the barrister

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23

Legal Aid- Time To Listen To Users By Michael MacNeil, Policy director, Legal Action Group Introduction

A

ccording to the House of Commons Constitutional Affairs Select Committee there has been a ’clear breakdown in the relationship between the Legal Services Commission and suppliers.’1 The conflict between the Legal Services Commission (LSC), the Law Society, and those providing legal aid, has not abated. Legal challenges to the LSC’s plans will progress. But with 95% of current providers feeling that they had little alternative but to sign a new contract to provide legal aid by the April deadline, it is clear that the Government will not abandon market-based approach. Despite our scepticism about the Carter reforms, Legal Action Group (LAG) predicted as much (see issue 31, January 2007). Fixed fees will be introduced in October 2007 as part of the transition towards a longer term objective of achieving a competitive market through best value tendering. This initial phase is deliberately designed to start manipulating the market by trying to fix the rate at which future services will be provided. The Committee report also reflected LAG’s evidence: that the implementation of Lord Carter’s reform agenda does not bode well for what is an essential service for the many disadvantaged by society. It concludes that ‘the government has introduced these plans too quickly, in too rigid a way and with insufficient evidence.’ and that ‘The most vulnerable clients – those most in need of Legal Aid assistance – are likely to suffer.’2 LAG’s mission promotes equal access to justice as a fundamental democratic right. We are particularly concerned about the ability of the vulnerable and socially excluded to access quality legal aid services. That is why we have been vociferous in expressing concerns about the so-called market-based approach. Our principle interest is not those providing legal aid services, but those receiving them, although there is an obvious link. Most organisations, at least the nongovernmental variety, concerned with access to justice issues agree that it is necessary to address the current inadequate funding. But it would also be wrong to suggest that the existing way that legal aid is provided is perfect. Like it or not, the Legal Services Commission (LSC) is to introduce further levers to control better what and where

services will be provided. Perhaps it is time to concede that the Commission does have a legitimate role beyond that of paymaster? There are inherent dangers associated with central planning and it is important that those taking decisions are held accountable. With the desperate need for the LSC to start building bridges and to adopt a more inclusive approach, they should look at methods of connecting local service providers, relevant government departments and, crucially, involving service users. In a recent discussion paper, Developing the users’ perspective3 LAG has started to ask whether introducing a direct voice for users of legal aid services could act as an important check and balance in a system dominated by a central purchaser in frequent conflict with its providers and powerful professional interests. It does so by posing a number off questions, including those covered in this article: • • • •

Why involve users? What are the challenges? What forms could it take? Whose responsibility is it?

Why involve users Firstly, because it is the right thing to do. Users should be invited to contribute to the development, implementation, and evaluation of services. While accepting that both purchasers and providers consider that they articulate the interests of their service users, they do so from different perspectives. Neither of these is a suitable substitute for a direct users’ voice. Secondly, there are reasons of efficacy. Repeated government initiatives recognise that user involvement leads to a better focus for services. Some seek to introduce standards for citizens as individual consumers of public services, for example: long-overdue standards have now been developed for the court service4, or the government’s response to the charter mark review for publicly funded services, where the need to build ‘deeper customer insight’5 was emphasised. Others suggest giving people (as citizens, consumers, customers, etc) and their communities more influence and power with decision-makers6. This makes for a good soundbite but is also a response to evidence from other sectors suggesting that user participation in strategic decisions improves and focuses services.

LAG research7 illustrates that in the NHS users have been involved in decision-making for over 30 years. While the NHS mechanisms have varied and are the subject of debate8, the absence of measures for user involvement in publicly funded legal and advice services is noteworthy. Even in the politically sensitive sphere of offender management, probation services are asked to ‘to identify and promote best practice in the engagement of offenders in the delivery and development of services provided by local probation areas.’9 Public policy currently supports user involvement, which, as Pycroft suggests, is part of an agenda that, ‘… recognises individual and consumers as repositories of expert knowledge.’10 Little effort is needed to analyse the gap between the rhetoric and the reality of user involvement. The motivation of government is open to question but while scepticism is healthy, outright cynicism hinders our ability to take advantage of a positive policy environment to develop a voice for the currently voiceless users. Denying the need for a users’ perspective at a strategic policymaking level is also patronising, suggesting that only purchasing bodies or service providers know what is really needed. Yes, they have much to contribute and are expert in their field but arguments that existing mechanisms can adequately voice the needs of users are rejected. Developing a direct users’ perspective is vital to ensure that ‘…advice services mirror the behaviour and capacity of those who wish to use them, and in doing so are physically and intellectually accessible…’11 But is this possible?

What are the challenges? Experience from the NHS indicates that singular reliance on a traditional ‘users representation at a committee’ approach would not be sensible. Over time lay people tend to gravitate towards dominant (professional) or challenging (managerial) interests, rather than act continue promoting the repressed (user) interests.12 The challenge, therefore, is to stop representatives becoming incorporated and to ensure that the voice of the most marginalised users can be heard. These concerns, while valid, must be seen as a challenge and not a barrier to involving users. Developing a voice for users might be difficult, but that is not a reason for not doing it. Adapting an Audit Commission briefing13 on connecting with users and citizens provides a


24

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useful, if not exhaustive, checklist. It suggests that: • A real commitment throughout an organisation is necessary; • Involvement is best supported by crossorganisational structures. There is a need for support to be backed-up by funding, planning, and training. • Diversity and representation – it is important that people taking part are representative and inclusive. The following should be considered o speaking to non-users o broadening the range of participants o meeting practical needs o reviewing membership of long-term groups to avoid it becoming static o how to make connections with ‘hard to hear’ groups • Simply asking for service users’ views on questions determined by the purchaser or provider is not enough; it is vital control of the process is handed over to others. • Learning from experience – involvement processes should be able to grow and develop according to changing needs. • Real results – participation should be arranged in time to have a real influence. • Results and outcomes should be communicated.

attention of strategic decision-makers. The simpler approach of including representation for the users’ perspective in decisionmaking fora is a useful starting point but the deployment of a range of methods, within a co-ordinated framework, would be most likely to enable the effective introduction of the users’ perspective into the policy-making process.

Whose responsibility is it? Although it may be considered glib, all those involved in legal and advice service provision should want to ensure that the users’ perspective shapes the thinking and deeds of policy-makers. Perhaps a more apposite question is, ‘Who should take the lead?’ Given that legal and advice services span a number of departmental portfolios and operate at different levels of government, it is difficult to point with certainty to one particular department or agency. However, as a major funder of legal and advice services, operating at a strategic national level, with reporting agencies having a regional presence, then it would be appropriate for the Ministry of Justice (MoJ) to assume a coordinating role for the development of a national strategy, involving others including the LSC, and possibly the new regulatory bodies to be established by the Legal Services Bill, as necessary.

Conclusion What forms could it take? Undoubtedly it would be attractive to find a broad, generic, approach that could be adapted for developing a users’ perspective in multiple policy environments. Although such a matrix does not currently exist, it is possible to think about possible components. The manner in which users’ views are garnered could vary according to subject matter and purpose. Obtaining opinions about operational matters may require a different approach to that needed to inform the more diffuse policy reform process. Much can be learnt from the empirical approach of academic researchers and methods previously used to access data about users’ perspectives in specific settings within the justice system could be adapted. Each of these methods has advantages and disadvantages, with decisions required about selection of data sources and whom to involve.14 However, a framework is likely to include: • Surveys • Focus Groups • Interviews • Case studies • Randomised approaches to general population Undoubtedly, there are other methods, perhaps using more imaginative and participatory formats, to draw the users’ perspective to the

Prior to the establishment of the LSC in 2000 there was no strategic overview of legal and advice services worth mentioning. The introduction of a central strategy is not, by itself, a bad thing but the resultant process of change is proving painful for providers. In a climate of restricted funding, the impact of the reform agenda could easily damage the many people who desperately need legal help and assistance. It is, therefore, entirely understandable that in melee following the publication of Carter, sides are taken. LAG has too – no attempt is made to claim the higher ground. But what has been missing from this debate is a direct voice on behalf of users. Let us be real. Giving users some form of involvement in the strategic decisionmaking will not result in a seismic shift in the democratic accountability of legal aid services, but it could act as a check and balance for both purchasers and providers during a period of significant adjustment: helping to monitor and evaluate change. After all, legal aid belongs to our communities, not to us. 1Implementation of the Carter Review of Legal Aid, House of Commons Constitutional Affairs Committee, Third Report of Session 2006-07, May 2007, p3. 2Ibid, pp3-4

3Available at: www.lag.org.uk or from MMacneil@lag.org.uk 4See Courts charter for courts users published, HMCS news release 01/07, January 2007. Available at: www.hmcourtsservice.gov.uk/ 5Cabinet Office, December 2006, The Customer voice in transforming public services: government response, available at: http://www.cabinetoffice.gov.uk/ 6Strong and prosperous communities, The Local Government White Paper, Department for Communities and Local Government, October 2006. 7Available from author at MMacneil@lag. org.uk 8Health Select Committee inquiry November 2006 into Patient and Public Involvement – details available at: www.parliament. uk/parliamentary_committees/health_ committee.cfm 9Offender engagement: effective consultation and involvement of offenders in developing services, Probation circular 10/2006. Available at: www.probation.homeoffice.gov. uk 10Cited in ‘Too little, too late’, Criminal Justice Matters no 64, summer 2006, pp3637 11Pascoe Pleasance (2006), Causes of Action: Civil Law and Social Justice, Second edition, Legal Services Commission, p165. 12Christine Hogg and Charlotte Williamson, 2001, Whose Interests do lay people represent? Towards an understanding of the role of lay people as members of committees, Health Expectations, Vol 4 Issue 1, March, Blackwell. 13Audit Commission, January 2003, Connecting with users and citizens, Audit Commission, London. 14For example see Tribunals for Diverse Users, DCA research series 1/06, Professor Hazel Genn et al, 2006), and Pascoe Pleasance (note 8).


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

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27

Civil Legal Aid Reforms Lord Carter believes that there are fundamental inefficiencies in the way legal services are delivered and that his proposed reforms will lead to greater efficiency without compromising either quality or access. His belief is that a healthy legal services market driven by best value competitive tendering is the way forward. By David Emmerson, Equity Partner with Edwards Duthie Solicitors and a family lawyer with Higher Advocacy Right

L

ord Carter’s review of Legal Aid Procurement (A Market Based Approach to Reform) was published by the Government in July 2006. Lord Carter believes that there is a need for fundamental reform in the way legal aid services are procured. There are four main pillars to the reform: a)

b)

c) d)

Clients should have access to good quality legal advice and representation A good quality and efficient supplier base which thrives and remains sustainable The taxpayer and the Government receive value for money The justice system is more efficient, effective and simple

It is difficult to argue against the merit of those four fundamental pillars however spending on legal aid has increased from £1.5 billion in 1997 to £2.3 billion today. Spending on criminal legal aid and public law family cases has risen dramatically although the cost drivers here are not fees paid to lawyers but external factors such as new legislation, the increase in the use and costs of residential assessments and expert’s fees generally. Solicitors’ practices undertaking legal aid civil work have received no more than 3 rates increases in the past 14 years. An increased reliance on IT and a greater use of trainee solicitors and paralegals has enabled some practices to survive despite staff salary costs, rent, insurance and overheads generally rising significantly above the annual rate of inflation. The present system serves no one well whether it is the public, the lawyers or the taxpayer and even the Government has stopped talking about the “legal aid gravy train”. The reforms mark the most fundamental

upheaval in the history of legal aid. The upheaval comes at a time of unprecedented change in legal services generally with the introduction of the Clementi reforms. Lord Carter believes that there are fundamental inefficiencies in the way legal services are delivered and that his proposed reforms will lead to greater efficiency without compromising either quality or access. His belief is that a healthy legal services market driven by best value competitive tendering is the way forward. The reforms provide for a wholesale shift towards fixed price work which he claims will reward efficient suppliers who can deliver increased volumes of work. Inevitably, therefore he envisages an increase in the average size of firms through mergers, takeovers and growth. Barristers’ chambers generally have grown in size in recent years, driven both by the need to offer comprehensive specialist services as well as economies of scale. However, Solicitors practices have not necessarily grown in size, although some have. Direct access to the public in areas of need means that solicitors’ practices have generally set up in deprived areas. The changes are due for implementation on the 1st of October 2007. The civil proposals are settled but at the time of writing this article the family proposals as detailed, here are still in consultation. There are major changes to Criminal Legal Aid to be implemented at the same time but they are not the subject of this article.

Civil (non-Family) At present, the Commission has no proposals to implement any change in respect of certificated civil legal aid work. Counsel and solicitors will be paid on the same basis as now although there is no hint of any increase in the rates paid. Solicitor and not-for-profit organisations undertaking Controlled Legal

Help work (The old Green Form work to those of you over a certain age) however face a new regime. Payment for such work will be a fixed fee by category such as housing, welfare benefits, community care, debt and so forth. The calculation of these fees is based on the average claims made in 2005 to 2006 across the nation. Disbursements will be paid on top. This replaces the Tailored Fixed Fee Scheme (TFS) that has been in operation for 3 years where such individual case payments were calculated on the basis of each individual organisation’s average case costs inclusive of disbursements. The fees are national which means that there is no uplift for organisations operating in the expensive areas such as the South East or inner city Leeds or Manchester. Most firms specialising in these categories of work will be paid much lower rate than under the TFS.

Family Proposals There are different proposals for private law and public law proceedings although both are based on a graduated fee structure for cases progressing up to but not including trial. In private law there are separate fees paid for children and / or finance matters. This scheme embraces the work previously done under the Legal Help Scheme as well as initial preparatory, directions and FDR hearings conducted under a Certificate. A higher fee is paid in cases where settlement is reached. There is no separate payment for advocacy and Solicitors will chose whether to conduct any advocacy themselves or instruct Counsel. Any payment to Counsel will come directly out of the Solicitors fixed fee. The fixed fee is calculated on the average of all claims in 2005- 06 including the sums previously paid to Counsel. All payments to Counsel under the private law Fixed Fee scheme therefore must be agreed between the Solicitors and Counsel’s clerk. Counsel will not be guaranteed Graduated


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Fee Enhancements unless specifically agreed with the Solicitor. This is a fundamental change and effectively Counsel is instructed on a private basis. If a case proceeds to trial, Solicitors and Counsel are paid in the same way as at present either on a time an item basis with uplifts where appropriate as a Solicitor or as Counsel under the Graduated Fee Scheme (GFS). The Commission proposes to remove the availability of Legal Help advice for those seeking simply to divorce (where there are no financial or children matters) limiting such assistance to the preparation only of the petition itself and leaving the client to their own devices in respect of service problems and special procedure. It is interesting that there are no proposals for the introduction of fixed fees for domestic violence work. Ironically there is less variation in the range of work undertaken in respect of domestic violence cases than in, for example, a contact case or financial case and one might think that such a relatively simply and straightforward process as applying for a domestic violence injunction would lend itself to a fixed fee regime. Indeed, in the 1980’s, particularly in the London area, many County Courts operated a simple and popular fixed fee for injunction work. In Care proceedings payment is also by fixed fee for pre trail work but there are differing fee levels depending on whether acting for parents, children or more than one party. Here advocacy is paid separately over and above the fixed fee for both Counsel and Solicitors. Counsel is paid as now, under the GFS and Solicitor Advocates on an hourly basis but there is no payment for advocacy preparation that curiously remains part of the fixed fee. There are no other major changes to the Bar’s GFS to be implemented this year although the Commission and the Ministry of Justice have made it clear that they intend to seek fundamental reform of the GFS and are consulting now with a view to introducing such changes next year. For years now in the public law arena solicitors who undertake advocacy have undertaken the same role as their counterparts from the Bar. Indeed, it is a requirement of being a member of the Law Society Children Panel that members conduct their own advocacy, including trial advocacy. In private law

proceedings, some solicitors choose not to venture out of their offices but many now see appearing in Court on behalf of their clients as an essential part of their service. The training that Solicitors and Barristers receive has far more similarities than differences. Much of an advocates skills and competence tend to be developed by a mixture of good preparation and practice. It is often claimed that members of the Bar have a lower cost base because their overheads are relatively much lower than a Solicitor’s practice. However, fundamentally there is no reason why Barristers and Solicitors should not be paid the same for undertaking what is essentially the same work. It follows therefore that the FLBA and Resolution can present a united front in negotiations with the Commission and Ministry of Justice in securing proper remuneration for advocacy in what is an essential part of the service.

The Way Forward The House of Commons Constitutional Affairs Committee which reported on the 1st May 2007 expressed concern about the impact of the reforms upon an already “fragile supplier base”. In some ways, it is not the introduction of fixed fees or their structure that is the problem. The basic problem is that the fees are calculated on the spending in 2005- 06 and operating costs have risen since then. The rates currently paid are already too low for practices to have any confidence that they can plan for the future in Legal Aid. There are no planned increases in the fixed fee structures so any future financial development for organisations will have to come from economies and efficiencies. There is a limit to how far and how quickly such savings can be realised. It is essential to understanding reforms to be familiar with the concept of “swings and roundabouts”. The fundamental basis here is that you win on some, and you lose on some but it should even itself out at the end of the day. It is important when dealing with such jargon to ensure you are comparing ‘apples with apples’ and not ‘apples with pears’. It needs to be clarified therefore that “swings” are good things for practitioners. That is that they can conclude a case at less than the fixed fee. “roundabouts”, as we all know from our childhood, are bad things because they can go too fast and make you sick. In fixed fee terms, a ‘roundabout’ is where you spend more time on a case than you are paid under the fixed fee. Fixed fees

can be beneficial for the Professions but only if they are properly funded in the first place. There will be a more proactive effort by lawyers to settle cases whether by mediation, Collaborative law or just straightforward ‘cut to the chase’ negotiating. There will be calls for reform of the law to introduce ‘no fault’ divorce coupled with a simple administrative process. The will also need to be a renewed commitment form the LSC to reduce bureaucracy as none of these proposals do that. Indeed the new Unified Contract increases the need for management of the work. The bureaucracy is becoming crippling in itself. There will inevitably be many Solicitors’ firms and Counsel who will chose to give up doing Legal Aid work. That is not necessarily bad news for the Government who intend by these reforms to spark fundamental change. Practices will become larger and much more work will be undertaken by junior staff supervised by the more experienced. There are large firms like Edwards Duthie that have always encouraged their Solicitors to undertake advocacy including trail advocacy but they and indeed Resolution recognise the continuing need for a strong Bar particularly in family law. The reforms must not deprive the public of a fundamentally essential public service – Legal Aid.

David Emmerson is an Equity Partner with Edwards Duthie Solicitors and a family lawyer with Higher Advocacy Rights. He is also Chair of Resolution’s Legal Aid Committee


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The Mental Health Bill 2006 is the latest in a string of attempts by Government to reform the 1983 Mental Health Act, Mind believes that this is a rare opportunity to update the system, and one that should not be wasted. By Paul Farmer, Chief Executive of mental health charity Mind. Why reform the law?

T

he decision to reform the law, made back in 1999, was widely welcomed. Although the Mental Health Act was updated in 1983, the last wholesale reform of mental health legislation dates back to the 1959 Lunacy Act. It is no wonder, then, that current legislation is out of step with modern mental health service provision and has failed to reflect important changes to the system, including the closure of the large psychiatric hospitals and move towards care in the community in the 1990s. Yet the process of reform has been turbulent and protracted, lasting nearly a decade. Criticisms of the Government’s proposals have abounded from lawyers, academics, mental health practitioners, service users and carers alike, and an ever-growing Alliance of opponents has developed to campaign for a more considered and ethical approach to law reform. The controversy is hardly surprising, given the unique nature of mental health law. It is the only place outside of criminal justice law where the state retains the power to deprive people of their liberty, on the grounds of “unsound mind”. So the law concerns fundamental human rights principles, and policymakers must take seriously their duty to provide adequate safeguards for a group of people denied the freedoms we all take for granted. Mental health law is also a balancing act between health provision and social control. The Government has come under fierce criticism for pandering to tabloid stereotypes of people with mental health problems as a danger to public safety. Beyond the accusations and counter-accusations, there are important policy concerns about the way to manage and reduce risk. Mind believes that risk is increased by patchy and poor service provision and best managed by wise investment in evidence-based services. It is unlikely to be eliminated by targeting “hard to engage” individuals with increasing levels of coercion. Detention in the mental health system also

raises ethical issues around mental capacity – should we have the right to deprive people of their liberty if their judgement is in no way impaired, for the sake of their own health or safety? We do not have comparable powers in other areas of the health service, despite the parallel risk to self or others of not accepting treatment for cancer, heart disease, TB or HIV, for example. It is paradoxical that in such a short space of time, the Government has enacted mental capacity legislation, which enshrines the presumption of decision-making ability, and amendments to the Mental Health Act which do not reflect the same respect for a person’s autonomy and capacity. Other issues have emerged, such as the relationship between the formulation of law and the provision of quality services that deliver to those most in need. Mind believes that the law can have important consequences for service delivery, and it is essential that policymakers carefully analyse the cost of implementing new laws and their implications for service delivery. Is legislation a vehicle for addressing systemic inequalities? The Government’s assertion that legislation is race-neutral is hard to swallow, given the persistence of race inequalities in the mental health system. In short, the Government’s task was never set to be easy. Yet the strength, and consistency, of opposition to the Government’s vision demonstrates fundamental flaws in its approach. Legislation can inspire fresh attitudes, or it can impose constraints on the process of culture change. In its current form, the Government’s plans fail to grapple with the big issues – patient autonomy; race equality; the provision of safe, effective and responsive services. But there is still a chance to make all the difference.

What’s in the law? Briefly, the key Government’s plans are to widen the definition of mental disorder and broaden the scope for compulsory powers, to allow greater scope for clinical discretion. This, they claim, will prevent people who need help from slipping through the system because of their diagnosis. The Bill also introduces more coercive ways to treat

patients in the community. These “community treatment orders” (CTOs) are intended for a small number of patients who fail to take their medication and are therefore subject to numerous hospital admissions. Again, the proposals are drafted with broad eligibility criteria to allow for clinical judgement to determine who most needs an order. Concern arises because drafting legislation to allow clinical discretion is essentially taking away the power of the law to prevent the improper use of compulsory powers. Mind is concerned that the result will be a dripdrip erosion of accessible and approachable services (already in short supply) in favour of hard-end services, with a high degree of coercion imposed on people in crisis, and little in place to avert crises from happening in the first place. The Government’s own projections recognise that introducing CTOs will extend compulsion (the average length of use of the Act will increase from 3 months to 9 months). As a result, more people will be under the Mental Health Act at any one time. Mind objects to this increase in compulsory powers, which seems at odds with a modern view of mental health services. If compulsory powers are used with greater frequency or for longer, there will be knockon effects. It may harm patients, as the use of force has important psychological consequences and can hamper recovery. It will increase the workload both for hospitalbased clinicians required to supervise patients in the community and community mental health teams providing more intensive services. A defensive clinical culture (which already exists, largely due to the duty on local authorities to conduct inquiries into suicide or homicide events) is likely to develop further. Supervising medication compliance can be demoralising for clinicians and lead to burnout. The effects of racial inequalities in the system will be perpetuated as clinical discretion, and therefore unwitting prejudice, can determine decision-making. Most importantly, as disabled people in other health and social care settings claim rights as equal, autonomous citizens, people experiencing mental distress are likely to experience further stigma and discrimination


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as their rights and autonomy are denied.

A vision for the future Mind has consulted widely with people with experience of mental distress and the compulsory mental health system during the process of reform. People tell us that what is needed is a system that upholds the dignity and respect of service users, and well-resourced and well-evidenced services to support them if they experience a mental health crisis. From this consultation has emerged a picture of a very different legislative system from that which is currently on the table. It is a system grounded in fundamental principles of non-discrimination and equality, patient autonomy and participation, and leastrestrictive care. It is a system which gives a voice to service users through advance decisions and rights to an advocate. One which pre-empts the need for compulsion by enshrining a right to assessment for health and social care needs, so no-one is turned away from services only to reach crisis point later. Above all, it is a legal framework which aims to reduce the need for coercion. This vision is not pie-in-the-sky. Parliamentarians across party divides and in both Houses, who scrutinised the Government’s plans back in 2004, have

acknowledged that any new mental health law should and could provide these powers and duties. The Joint Committee on Human Rights this year concluded that a clear and tight threshold to the use of powers, and adequate recourse to justice - including a right to an advocate and easier and more robust procedures for appeal against inappropriate treatment or care decisions - are essential features of human rights-compliant mental health law.

How to get to there At the time of writing, the 2006 Mental Health Bill is in the House of Commons. There, MPs have voted to remove amendments made in the Lords earlier this year. These amendments would have curbed the breadth of powers that could result from the Government’s plans. The Lords amendments narrowed the gateway into compulsory care and treatment by introducing a number of exclusions to the broad definition of mental disorder. They ensured that the Act can only be used where treatment is available that will alleviate a person’s condition or prevent it from worsening, and prevented its use for patients retaining full decision-making capacity. Safeguards were introduced to prevent arbitrary renewal of episodes of detention, and to substantially reduce the impact of CTOs by restricting their use to a small group

of “revolving door” patients, identified by Government as most likely to benefit from the powers. While the Government is standing firm in its determination to introduce CTOs and its other key plans, Mind, and the wider alliance of stakeholders, holds out great hope that the potentially damaging effects of its policy can be prevented. We are working for legislation fit for the 21st century, by campaigning on the issues championed by the Lords, as well as pressing our agenda for further amendments. We want to ensure that the Bill enshrines a statutory right to advocacy, a raft of measures to address race inequalities, a choice of nearest relative and rights for children and young people to age-appropriate care. It is these changes that would make the difference for people experiencing mental distress. This is a once-in-a-generation opportunity to make positive changes to mental health law. We must grasp it with both hands.

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Mobile Telephones – the new fingerprints It is incumbent that advocates and legal specialists learn more about this sphere of forensics, ensuring that opportunities and avenues of recourse that would benefit their client are fully explored and exploited By Ross Patel (BSc)Hons, MCSE, CCNA, CISSP, CISA, CISM, CHFI, CEH, Director, Digital Evidence at AFENTIS Forensics

S

ince the development of the Global System for Mobile Communications (GSM) standard in the early 1980’s, the numbers of deployed mobile telephones have grown exponentially; with an estimated 2 billion handsets now in use throughout the world. There are now more mobile telephones in the UK then there are people – this pervasive technology impacts on almost all areas of industry and life. Unsurprisingly mobile communications have enabled old crime to be effected in new ways and evidence from such devices are increasingly forming an important part of criminal and civil proceedings. Speaking at a recent lecture to the British Computer Society (BCS), Ross Patel, Director of Digital Evidence at AFENTIS Forensics, commented that “in almost every major fraud case or murder investigation, telephonic evidence proves crucial in placing the suspect in the locale at the time of the offence”[1]. Conspiracy charges are sometimes wholly based upon telephonic evidence, where linkages and contact between individuals is provided by an analysis of the digital evidence within the mobile phones and from the associated telecommunication network (e.g. T-mobile). Modern communication devices of this form comprise of three distinct components: a finger-nail sized chip known as the ‘Subscriber Identity Module’ (SIM) that is responsible for service with the telecom network provider, the handset, which provides the user interface and memory capacity to store information, and removable memory modules that facilitate simple exchange of information and markedly improve the data storage capacities.

Many specialists argue that the mobile phone has become so valuable a tool to investigators that they have become known as “the new fingerprints”. A case in point being Ian Huntley’s conviction for the Soham murders[2] which was based partly on crucial mobile phone evidence.

This article explores the digital evidence that can be found within a mobile telephone handset; follow-up features will examine the value of examining SIM cards and how Cell Site Analyses (mapping the geographic position of a handset).

Digital

Evidence

Mobile phones employ what is known as ‘flash memory’[3] to store data and settings. Unlike the ‘Random Access Memory’ (RAM), which is found within computers, flash memory can continue to store information even in the absence of a power source. This resilient feature of mobile telephone memory means that devices that have been buried or even left damaged for considerable periods of time can still yield valuable evidence through careful forensic examination. As mobile communication devices continue to evolve[4], with features like word processing and photo imaging applications becoming commonplace, the memory storage areas have become increasingly important silos of digital evidence. The following materials can be recovered from the handset and can greatly assist in case preparations: •

Logged Incoming & Last Dialled numbers

Text & Multimedia messages

System Settings (including date/ time/volume)

Stored audio/visual materials

Saved computer and data files

Calendar and Alarm notifications

Internet settings accessed

Common It is incumbent that advocates and legal specialists learn more about this sphere of forensics, ensuring that opportunities and avenues of recourse that would benefit their client are fully explored and exploited.

and

websites

Questions

Where does evidence reside on the handset or on the SIM? Materials of evidentiary value are stored on both the SIM[5] and within the handset memory. Therefore it is recommended that

comprehensive evaluations of both are undertaken. The SIM will tend to contain valuable user-specific information such as network identity, whilst the handset will contain large amounts of information relating to calls made/received, texts sent/ received, images/video clips created etc. Most handsets now also feature the ability to connect to computers to expand functionality and allow data/media exchange – which should also be considered in the interests of a thorough and comprehensive investigation.

Can indecent images such as child abuse material be stored on a handset? The prevalence of high resolution cameras integrated with most mobile telephones has led to an increase in the number of offences being committed in relation to creation, or attempted creation, of indecent/obscene images. Assuming a standard handset with 32MB of memory, close to 500 still images could be taken and stored. Through the use of removable memory devices, such as SD Cards, these media archives can be easily shared to other telephones or even with computers. In Italy the Data Protection Commissioner has issued stringent guidelines on the use of camera phones in public places – especially in places such as swimming baths. Text messages and phonebook entries deleted six months ago - can they be recovered? Dependent upon a number of factors, such as how frequently the memory segments that store information are over-written with fresh data, it is possible to retrieve even the oldest materials committed to the phone - including text messages received by the user but never saved. In most cases a surprising amount of information can be retrieved, often going back several years.

Does locking the handset keep information private and inaccessible? Personal Identification Numbers (PINs) and pass codes can be used to restrict access to the handset, but forensic assessments typically bypass such controls by interrogating the memory module directly[6]. At this time encrypted file-systems and data storage areas are not available in standard retail handsets.

What else can the handset tell us? Aside from digital evidence the presence of DNA traces on the keypad, earpiece and mouthpiece can tie a user to device. Similarly, ‘Call Detail Records’ (CDRs)[7]


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depth/uk/2003/soham_trial/

can be retrieved from the network provider (e.g. O2 or T-Mobile), providing near postcode location information as to where and when the device was used for messaging or even picking up voicemail. This type of information can be retained by network providers for several years, allowing for even reconstruction and long after the incident.

3.

RAM, ROM and Flash Memory. Ref:http://www.storagesearch.com/ flash.html

4.

Evolution of Mobile Telephones. Ref: http://en.wikipedia.org/wiki/ History_of_mobile_phones

How do you identify the International Mobile Equipment Identity?

5.

The IMEI is a 15 digit Code used to identify the phone to the network. Whilst this code can often be found etched into the handset beneath the battery, it is also possible to identify the IMEI without the use of forensic technology. By entering *#06# on the keypad the telephone screen should display the device IMEI. Caution: this approach to identifying the IMEI may affect valuable evidence in storage.

SIM Card Forensics, 5 Minute Forensics Series, CrimeLine 2006 Note: There are provisions in Part III of the Regulation of Investigatory Power Act 2000 that empower authorities to force disclosure of passwords and encryption keys by making refusal (even through loss of memory or inability) an offence.

6.

CDRs provide overview information in terms of when and roughly where the device was used. Text messages, phone calls and the actual traffic between individuals is not recorded.

ABOUT THE AUTHOR Ross Patel (BSc)Hons, MCSE, CCNA, CISSP, CISA, CISM, CHFI, CEH, is Director Digital Evidence at AFENTIS Forensics – an independent firm specialising in the provision of Technical Expert Witness services to the investigative and legal community. AFENTIS FORENSICS www.afentis.com FREEPHONE 0800 180 4545 24x7 Confidential Enquiry Hotline Computer Analysis / Mobile Telephone Forensics / Data Recovery CCTV Drives / Covert Surveillance / Obscene Images & Media / Investigations Training / Expert Witness 1.

2.

Evolution of Malicious Code, British Computer Society (Feb ’07) Ref: www.bcs.org.uk

7.

A list of manufacturer codes that can be used to display network and special system information is available online at www.afentis.com/mobile/netcode

Did you know?

Part of the TAX Watchdog organisation

New mobile telephones have as much as 32 megabytes of internal memory - enough to comfortably store a document with over 2,000 pages of text! Telephone handsets will typically store user defined words that are not in a normal dictionary. Names of individuals and places are often stored in this archive - a potentially valuable source of intelligence for investigators or legal support teams.

A UK wide service. Est. 1996

Mobile telephone devices and related portable communication exhibits are playing an increasingly important role in today’s courtroom. Almost all murder, complex fraud and cases involving conspiracies, will have some degree of electronic evidence tendered. In extreme cases the case will rise or fall based solely upon the digital evidence exhibits. According to Mike Rainford, Head of Fraud and Business Crime at Burton Copeland, “appreciating what is forensically possible and the type of evidence that can be recovered through careful examination is crucial to ensuring that opportunities and avenues of recourse that would benefit case preparations are fully explored and exploited”.

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Selecting in and rejecting – the implications of screening embryos Development towards ‘designer babies’ has been noted in the media and has been the subject of articles for some time now. ‘Designer babies’ are a slick approach to the creation of the perfect family that we all desire By Penny Booth, Reader in Law, Staffordshire University Law school

S

ounds magnificent – we can dispose of breast cancer by selecting out the genes1 we don’t want and putting in what we need to provide what everybody wants to have – the perfect baby, and to be – the perfect human being.2 Is this the answer to the problem of cancer and should we be considering this procedure as a solution to the hardship and pain caused by a disease that gets in the way of living our lives? Can we adjust genetic material and avoid having the problem in the first place? Don’t get me wrong – breast cancer is dreadful, steals vitality and, often, life itself from those we love and treasure and it ruins lives and spreads misery. What is of concern, though, is the readiness with which we approach scientific development where medical improvement appears as the mirage on the horizon, often complete with palm trees, pool and drinks-bearing waiters. Who really knows what kind of future will be brought by technological developments? Whilst the Human Fertilisation and Embryology Authority has undoubtedly looked very hard at whether or not human embryo screening should go ahead, the practical application of that decision may prove more angst-ridden than imagined to carry out – and more damaging to us as human beings in the longer term.

When can screening be used? The illness must be ‘serious’, it must be triggered by a single gene and the test for that gene must be proven and reliable. The issues in screening include the initial one of dividing illnesses and conditions into those which condemn the carriers to the certainty of contracting/developing the illness and for which there may be no cure, and those which lead (only) to the implication that a person will contract or develop a particular illness or disease.3 Being susceptible to the development of a condition or disease may still be discomforting to the recipient of the possibility, but it is not a certainty

that the disease or condition WILL be one from which the individual will inevitably suffer – and even if it was a certainty that the individual would suffer from whatever disease or condition (ignoring the seriousness of the consequences of developing the illness) does that justify ‘deselection’ of the embryo? Discussion of the latter has often been lost in the exultant discoveries of the ability to perform the former.4 Illnesses are increasingly treatable with new developments in medicine almost constantly. With so much pressure on the development of treatment and cures as well as alleviations of the effects of conditions, it is no surprise if year-by-year our view of some conditions is that they are far less serious than our parents considered them to be. We then, as a society, move on the less serious conditions and diseases to replace our previous concerns in the reach towards perfection. The corollary of this is that screening embryos itself may be regarded as necessarily implied in the whole approach to the process of medical development in the pursuit of treatment and cure. By screening we may yet be providing the mechanisms which lead to further study and discovery towards alleviation and cure. Few would not want that at all. The very development of the process in screening permits more knowledge to be gained about breast cancer itself as we refine methods of doing so – though not the intended outcome we can take the advantages. Through the discomforting may come the very knowledge that may lead to a cure – perhaps eventually. By selecting out the relevant embryos, though, there is an assumption that the embryo that is selected out would have developed the disease. Whichever way it is looked at a human life possibility has been destroyed. That person might have been the one to provide a solution for the world’s food problem, a solution to the question for global warming or a cure for cancer. Who knows? What if they were just an ordinary person – indeed, should that make any difference at all?

Development towards ‘designer babies’ has been noted in the media and has been the subject of articles for some time now. ‘Designer babies’ are a slick approach to the creation of the perfect family that we all desire.5 One of the problems in the therapeutic gene selection – the one that allows us to select out the embryo carrying the genes we wish to avoid in order to do the ‘good’ of ridding ourselves of the risk (should we use the word ‘certainty’, or is that what we DO mean?) of having a child who develops an illness or condition that makes life a misery or ends one prematurely through a dreadful illness with human suffering is the same activity that allows us the possibility of selecting other characteristics required in our offspring. The seduction of being able to prevent inherited diseases from being a possibility in the first place is hard to resist, and hard to criticise. However, once the Rubicon of the selection of embryos is crossed what guarantee can there be that further use will not be made of other kinds of non-therapeutic selection in the future? The issue of sex-selection is a reasoned argument often used when discussing this very situation. If a disease or condition is more likely to occur on one sex rather than another, why not ‘deselect’ the embryo of the undesired sex? How far away from ‘deselecting’ an embryo because the embryo is the undesired sex for ‘social’ reasons are we then? Perhaps it is because we are more likely to regard selection by sex as fundamentally wrong, linked as it is to gender differentiation and the possibility of cultural interference and personal desire to balance numbers of children in a family, to replace a ‘lost’ child or to build family standing because sons are desirable in a particular culture? All this, rather than that there is essential medical reasoning behind the decision which has been left far behind in our considerations – medical technological developments are seductive. Why is it that the medically reasoned decision automatically ‘trumps’ any other? By allowing ourselves to reject so completely


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any other reason (which is just as valid if you look at the statistical chance that a child WILL (for certain) develop a disease or condition that somehow ‘requires’ its ‘deselection’ before it gets much further as an embryo. How have we considered the ethical implications of employing advances in science and what checks and balances have we in place? In May 2006 the Human Fertilisation and Embryology Authority said that it was acceptable for doctors to screen embryos for the BRCA1 gene6 which raises the risk of cancer by up to 80%. Last month an application was made to permit this to occur in the case of two couples whose families are severely affected by breast cancer. Their embryos will be screened for the presence of a gene that carries a heightened risk of breast cancer but does not always actually cause it despite that greater risk. For them, this is the only effective answer to an unenviable decision – and a risk that is enormously high if they go ahead and try to have children without IVF and embryo selection. The decision to accept applications for genetic testing after a positive public consultation will mean that the HFEA will not, at this point, consider the ethics of screening but it will seek to clarify the reliability of tests before awarding a licence. This is, in many ways and for all sets of couples, only the very start. Let us hope that the ethics of the situation will not disappear in the euphoria of medical development and resolution, but will be regularly revisited. Penny Booth 7 Reader in Law Staffordshire University Law school 1Pre-implantation Genetic Diagnosis – PGD. 2The Times Thursday Aril 26th 2007 page 1 3This issue was raised well in the Times report of the story and the Times Comment Thursday April 26th 2007 on page 16 4The performance of the total mastectomy as a preventive measure can only, of course, be regarded as traumatic in the extreme 5See, for example, ‘Family Law without the f-word – the implications of cloning ‘ in NLJ Vol154 No 7119 Friday 12th March 2004 pages 374-5 6BRCA1 gene also carries a 40% risk for the woman carrying it to develop ovarian cancer. 7Penny Booth is Reader in Law at Staffordshire University Law School

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Towards a more representative and inclusive Bar Council – report of the Kennedy working group Reforms to make the Bar Council more representative and inclusive of the 14,800 barristers it serves were published on Wednesday 23 May 2007 by an independent working group chaired by Sir Paul Kennedy.

T

he group was set up in 2006 by the Chairman of the Bar to consider whether changes introduced some six years earlier by the late Lord Alexander of Weedon had been effective. Sir Paul’s remit was to review: -

-

-

whether changes would be needed to the composition of the Bar Council to help it respond to the needs of barristers in the context of the Legal Services Bill whether that composition should reflect different sections of the Bar more proportionately whether the Bar Council’s relationship with the Council of the Inns of Court should change as a result of the split of the Bar’s representative and regulatory functions.

The group noted that the demands on the Bar Council had continued to rise. The Bar Council had made a growing contribution to resolving the many difficulties faced by publicly funded barristers. In particular, the massive imbalance between the need for specialist legal representation, and the declining real availability of legal aid, had prompted a number of imaginative and successful initiatives from the Bar. Similarly, the group noted the considerable demands on the Bar Council that flowed from the decision – ahead of the passage of the Legal Services Bill – to split the Bar’s representative and regulatory functions. Notably, the split had not led to a visible reduction in Bar Council workload, simply because the successful regulatory activities of the Bar Standards Board require the active policy contribution of the Bar’s representative constituencies.

generally effective in representing the interests of the profession as a whole. -

-

-

-

-

Following a consultation exercise among the profession and stakeholders, and 8 meetings of the working group the report was published today, with the following conclusions: -

The current structure of the Bar Council and its committees is

There should be increased representation on the Bar Council of the Specialist Bar Associations (to be increased by eight): ‘Both employed and self-employed barristers are more specialist than ever before. Accordingly, it is important that SBAs are fully and properly represented,’ the report states. The recommendations would keep the maximum number of members of the Bar Council to 118, but increase the percentage of young and junior barristers, as well as directly elected employed barristers. Election to the Bar Council should switch from Single Transferable Vote (STV) to ‘first past the post’: this would prevent the phenomenon of ‘slates’ of candidates effectively blocking good independent and minority candidates from election to the council. It is recommended that candidates for election need only be proposed by one other subscriber, rather than the current six, to make it easier for barristers to stand for election. Equality and diversity should be promoted by monitoring and mainstreaming and by ensuring that committee members are properly trained ‘The mainstreaming policy requires that the promotion of equality and the elimination of discriminatory barriers or practices must be considered in the formulation and application of all policies and procedures’. The report recommends keeping representation, in so far as it reflects gender, ethnicity and

disability, under review. Commenting on the report, Sir Paul Kennedy said: ‘We wanted to examine not only whether the Bar Council needed to change, as it acquired a more sharply focused statutory role as an Approved Regulator under the Legal Services Bill, but also the extent to which it included the growing influence of employed barristers. ‘There is also a much stronger requirement on the Bar Council to counter discrimination and promote equality of opportunity, through monitoring and mainstreaming activities. ‘It is our view that the Bar Council, in seeking to influence the development of public policy and institutions, sets itself appropriate objectives and secures generally good results. ‘We believe the changes we are proposing will improve representation of the Bar across its broad range of specialisms, while at the same time, giving a better share of voice to those barristers outside self-employed practice. ‘This will be further underpinned by the reformed, hybrid voting system, which will enhance the proportionality of the profession’s representation on its governing body.’ Welcoming the report, Bar Council Chief Executive David Hobart said: ‘We are very grateful to Sir Paul and the members of the Working Group for their hard work in developing the recommendations in today’s report. Sir Paul’s report provides a timely healthcheck for the Bar Council, at a time of unprecedented change in many of our activities. I look forward to the vital contribution of the additional Specialist Bar Association representatives in ensuring we have the ideal skills and future structures for a profession of successful, specialist advocates.’


36

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Geoffrey Vos QC, Chairman of the Bar, said that this report shows that the Alexander reforms to the Bar Council were broadly effective, but that small, albeit significant, structural changes are needed to meet the growing demands on the Bar Council. 1.

representative groups within the Bar, and c.

In 2006, we were invited by Stephen Hockman QC, then Chairman of the Bar Council, to consider: a.

b.

The extent of any changes needed to the structure or to the composition of the membership of the Bar Council, so as to represent most effectively the needs of subscribers, and to strengthen the Councilâ&#x20AC;&#x2122;s claim to be the unitary Front Line Regulator of the Bar, In particular within the composition of such membership, the application of proportionality of representation for the employed Bar and other

Chester Circuit, 2006 Stephen Worthington QC, Bar Council member David Hobart, Chief Executive, Bar Council Raj Joshi, Director, Legal Practice & Quality Assurance, CPS Tom Little, Chairman, Young Barristersâ&#x20AC;&#x2122; Committee, 2006 Helen Mahy, Joint Chairman Employed Barristersâ&#x20AC;&#x2122; Committee, 2006 Karon Monaghan, Specialist in employment / diversity law Lana Locke, Secretary to the Group

Any changes required to the Bar Council and its relationship with COIC in the light of the adoption of the new regulatory model for the Bar dated 20th April 2005,

and to make recommendations. 2.

Geoffrey Vos QC, Chairman of the Bar David Southern, Treasurer of the Bar Sir Roger Jackling, Former Second Permanent Under Secretary, MOD George Bompas QC, Specialist in company law Desmond Browne QC, Bar Council member Charles Haddon-Cave QC, Council of the Inns of Court representative Robin Knowles CBE QC, Chairman, Commercial Bar Association Michael Pooles QC, Bar Standards Board member Robin Spencer QC, Leader, Wales &

3.

For further information call the Bar Council Press Office on 020 7222 2525.

4.

For a copy of the report, please contact: tcraig@webershandwick. com

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38

the barrister

of audience in the higher courts and almost 15 since the first higher court advocates gained their qualifications. The campaigns surrounding that are now in history. The dire predictions have not come to pass: the Bar has grown and advocacy standards have not obviously declined.

p.1

It was, therefore, obviously sensible for the Solicitors Regulatory Authority, the solicitors’ equivalent of the Bar Standards Board, to look at the requirements for solicitors exercising rights in the higher courts. Earlier this year, it issued a consultation paper on whether those requirements should be changed. At present, solicitors automatically gain rights of audience in the county courts and below on qualification. If they wish to appear in the higher courts then they need to obtain an appropriate qualification which may be simply in respect of crime or civil, or of both. Typically solicitors are required to demonstrate a track record of advocacy appearances in the lower courts and to attend a training course. If they gain their higher rights, they are able to carry them over to the Bar if they wish to practise as barristers and the BSB is not able to impose additional qualifications – hence the BSB’s interest in the subject. Times have changed. The BSB’s remit is to look at the public interest. Its role is not to protect the Bar from competition and we approached the paper in that light. Even so, there were a number of matters in it which caused us considerable concern. The SRA suggested that the existing requirements were too onerous and that alternative methods would be suitable. These included: •

• •

Modifications to the existing provisions, involving an element of re-accreditation; A non-mandatory system of accreditation for higher rights; A simple reliance on a solicitor’s duty not to act where they do not have sufficient competence.

The BSB responded to the consultation with a number of concerns and it is worth spelling out what these are. We were disturbed by the lack of detail in the consultation paper. It was not obvious why the existing methods of determining whether a solicitor was competent to exercise rights of audience were too onerous. While it is true that only a very small percentage of solicitors are able to exercise such rights, it does not necessarily follow that this is because they perceive that it is too difficult to do so: they may simply not wish to do so or not see that it is a qualification that they need to possess. There was no evidence either way. There was also a suggestion that advocacy may not need any additional qualification. The BSB strongly disagrees with that view.

The higher court advocate has a pivotal role in the administration of justice. Advocacy in the higher courts is likely to require greater skills because the issues tend to be more complex and, the effect on the client (and, indeed, the public interest, for example in ensuring that a Crown Court prosecution is properly put) is greater. Indeed, the increasing complexity of some lower court matters may in any event justify looking again at the provisions for exercising rights in the lower courts. The Board was particularly concerned about the consumer interest if the SRA decided to allow a solicitor to exercise full rights of audience on qualification without any assessment of whether they were competent to do so. Advocacy for many clients is a single, once in a lifetime, distress purchase. Many litigants will not be able to judge whether the advocate representing them is competent or not. While the Bar remains a largely referral profession, the judgment may be of less significance if a sophisticated client, such as a solicitor, is choosing the advocate. But where the solicitor is, in effect, choosing him or herself as the advocate and may have a financial incentive to do so, it is particularly important that the solicitor should be competent and that this competence should be assured.

written documents (eg skeleton arguments) to a court; the ability to present evidence and cross-examine witnesses; a knowledge of the rules of evidence and court procedure; a knowledge of the duties of advocates to the court.

d) e) f)

These skills are distinct and additional to those required for the practice of law in other respects, and in particular in relation to largely paper-based reserved activities, such as conveyancing or probate. The suggestion, implicit in the paper, that in some way advocacy is equivalent to those (admittedly important) activities puzzled the BSB. It was suggested in the paper that a solicitor who only appeared rarely might not need to be accredited. It seemed to the BSB that those were precisely the individuals who needed to satisfy the regulator of their continued competence. The consultation paper did not provide much detail about the options. The BSB would be the first to accept that there may be other ways of teaching advocacy and identifying those people who are competent to appear in the higher courts. However, its strong view was that: •

There is a substantial difference between the training of solicitors and barristers in advocacy. The BVC places a substantially greater emphasis on advocacy training and the intensity is considerable. This is before students have been called and are able to take advantage of the Inns’ and Circuit training during pupillage and in the first three years of practice Above all, advocacy is a skill that can be taught and developed. A concern about the paper was that it did not appear to recognise the emphasis in the Carter report and elsewhere on the need to improve advocacy standards. A lowering of entry and training requirements for solicitor higher court advocates would potentially compromise the work that is going on to achieve improved standards. It could result in a gulf between barristers and solicitor advocates and a lowering of the Bar’s own standards if solicitor advocates sought to come to the Bar. The first point made by the BSB was that it is necessary to agree on what competencies are need to appear in the higher courts. It offered to work with the SRA to develop these. Its suggestion, which is likely to need further development, was that an advocate needs to be able to demonstrate the following skills, which were derived in part from the competencies required for the award of silk:

a) b) c)

a knowledge of the law; the ability to put an argument orally to a court; the ability to present argument in

• •

there need to be properly set out competencies for advocates; candidates should be measured against those competencies; any reliance on self-certification is likely to lead to some solicitors undertaking work for which they are not competent with detriment arising for their clients and for the justice system.

It is important to stress that the SRA paper was simply consultative. There was no indication that any of the proposals would necessarily be implemented. From the BSB’s point of view, however, considering the issues made it clearer to us that advocacy is an important skill that should not be downgraded. It also brought home to us that there needs to be common standard agreed with the professions. It cannot be right that individuals can “regulator shop” in order to find the easiest way to gain rights if, as a result, standards are lowered. This is not a trade union point, it is fundamental to the public interest. That is why we have offered to work with the SRA in establishing common standards. We await their decisions on the paper and hope that we will be able to work together to create standards that are not unnecessarily onerous but which satisfy the public interest.

Mark Stobbs is Director of the Bar Standards Board. The BSB’s response to the SRA’s paper can be found on its website, www.barstandardsboard.org.uk.


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