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#38

ESSENTIAL READING FOR BARRISTERS

1 st O ctober 2008 – 21 st D ecember 2008

E st . 1999

www.barristermagazine.com

MICHAELMAS TERM ISSUE

ISSN 1468-926X

Review of the Public Access rules The public access scheme allows lay people to instruct barristers directly, without the need for the involvement of a solicitor or other professional client. The scheme is limited in the areas that can be covered and the different sorts of work that must be done by both barrister and client. When the Bar Council introduced the public access scheme in 2004, it was careful not to allow public access in all areas of work in order to ensure that the service provided by barristers continued to be in the interest of the client and the administration of justice generally. It also agreed that, as part of the implementation, the scheme would be reviewed after three years to establish whether it was working properly. Under the present regulatory arrangements, this review falls to the Standards Committee of the Bar Standards Board (BSB) to conduct. The Standards

Features

Committee has established a working group, which includes experienced public access practitioners, c h a m b e r s ’ managers and lay members to take forward the review. In this CHRIS GIBSON QC article we provide Bar Standards Board background to the group’s work and to comment on the issues raised by the recent consultation.

Origins of scheme

the

public

access

Prior to the publication of the June consultation

be in the midst of preparing it’s response to

paper the LSC embarked on an unhelpful publicity

the second Ministry of Justice (‘MofJ’)/Legal

campaign, with selective press briefings where

Services Commission (‘LSC’) consultation paper

they provided information to the press without

this year. It is expected to propose fixed fees

sharing it with the Family Bar beforehand. This

for the payment of solicitors and counsel; one

resulted in a frank exchange of correspondence

case one fee (‘OCOF’) or family one case one fee

between the FLBA, Tim Dutton QC (Chairman of

(‘FOCOF’).

the Bar) and the LSC. As a consequence the LSC wrote to the Times accepting that the £140,000

In June the MofJ and the LSC published a

figure that appeared as an LSC quote in the Times

consultation paper ‘Reforming the Legal Aid

report on the 19th May as the average annual earnings from family legal aid work of the family bar was not correct and must have arisen from a ‘misunderstanding’.

a two year period from the Family Graduated Fee Scheme (‘FGFS’). The FLBA response

In preparing its response to the June consultation

to that consultation was submitted on 10th

paper the FLBA fees team sought and

September and is available on the FLBA website

received considerable feedback from the

(www.flba.co.uk).

FLBA membership, particularly those in

www.haysmacintyre.com

Witness Anonymity under the spotlight Witness anonymity has caught the media’s attention and rightly so: it is a part of the justice system and affects some of the most serious and complicated criminal cases. . By Tim Dutton QC, Chairman, Bar Council

12

A new Framework for Plea Negotiation in Fraud Cases The management of long and complex fraud cases has for some years been a concern in our legal system. The Lord Chief Justice’s Protocol already requires the prosecution and defence to resolve issues and agree evidence where possible prior to the trial. Formal Criminal Procedure Rules encourage this and build opportunities for discussions into the court timetable. By Stephen Hockman QC, Head of 6 Pump Court Chambers

16

By the time you read this the Family Bar will

12/08). That paper proposed cuts of £13m over

3

p.32

Access to Family Justice

Family Barrister Scheme’ (Consultation Paper CP

price £3.00

When Memory is the Evidence: Key Points from the Science of Human Memory It is not unusual to encounter cases where the only evidence is accounts of what are claimed to be memories. This frequently occurs in cases of historic sexual abuse but can occur in many other types of case too, for example in a recent action outside the UK workers brought a case of forced unpaid overtime based solely on memories of hours worked up to 25 years ago. By Professor Martin A. Conway, Institute of Psychological Sciences, University of Leeds

News p.20 Fees Matters - Contractual Terms Update p.21 New Criminal Bar Chairman calls for fresh focus on training editor: nigel simmonds 0870 766 2715 email: info@barristermagazine.com publishers: media management corporation ltd publishing director: derek payne

p.8

Design and Production: Alan Pritchard email: info@soinspire.me.uk Printed by: NewNorth, Milton Keynes

Bespoke tax advice for barristers Chancery Lane, London


Are you sure you’re not missing information you need in court?

03

the barrister

Witness Anonymity under the spotlight Witness anonymity has caught the media’s attention and rightly so: it is a part of the justice system and affects some of the most serious and complicated criminal cases. By Tim Dutton QC, Chairman, Bar Council

T

he Law Lords’ ruling in

to come forward in communities where they

judges ensuring that a consistent approach

the case of R v Davis in

would otherwise face retribution. However,

is

June this year reflects

the concern which was considered in R v

contentious applications.

the long-held common

Davis was that these protective measures

law

were

tenet

that

a

defendant has a right

Some things are just

better green!

© LexisNexis 2008. 0808-041/TW/KB/0808

examination

became

almost

sensitive

and

cross-

The Criminal Evidence (Witness Anonymity)

impossible.

Act 2008, which received Royal Assent in

flurry of legislative activity. The introduction

to peruse a key plank of their client’s

whereby

of emergency legislation in the shape of the

defence. Their Lordships agreed that the

be granted by the court. The Bar Council,

Criminal Evidence (Witness Anonymity) Act

defence had been gravely impeded and

together with the Criminal Bar Association,

2008 saw vigorous debate within the Houses

that the conviction was unsafe.

had significant concerns about any blanket

of Parliament and the media.

team

evaluate

The defendant’s legal

was

unable

Now that we

July, aimed to put in place a framework

granting

can reflect on the Act and consider it with

witness

of

anonymity orders could

such orders.

We therefore

lobbied to ensure, amongst other things, that

the benefit of a little time and distance,

The question then for Parliament, and for

the name of the witness who

what are the implications for our criminal

all those concerned about our legal system,

to a potential anonymity

justice system?

is how to balance a defendant’s right to

supplied to the judge.

know who is accusing them, which has

was adopted in the Bill, is an important one;

an umbilical connection to the presumption

it allows the judge, and not simply one

of innocence, against the need to protect

party, to determine whether the witness’s

The right of every defendant to ‘know and

witnesses who, with justification, fear for

identity should be disclosed to the legal

see’ his accusers has been a pillar of our

their safety. This is a delicate balance and one

team representing the adverse party in the

justice system because it prevents those with

which must be subject to ongoing review.

case, be it prosecution or defence.

Legislation

The Bar Council was also concerned that there

all from one source.

a grudge from falsely accusing defendants

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effective that rigorous

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to know and see his accusers, prompted a

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so

taken

with impunity.

application be

This measure, which

However, recent years have

outside of a statutory context for the vulnerable,

was subject

such

as pseudonyms,

are potential dangers if a criminal conviction

voice

The Bar Council supports the Government’s

were to rest solely and exclusively on the basis

distortion or screens in court when it

view that if there is a problem with witness

of evidence given by an anonymous witness.

is thought that key witnesses may be at risk

intimidation

must be

The Act in the form in which it received Royal

of retribution. This has become particularly

addressed by statute.

The gradual ‘creep’

Assent included a provision concerning this

prevalent in cases which have emerged from

of the availability of witness protection

issue. In granting an anonymity order a judge

police campaigns which target gun crime

measures had however resulted in a situation

must have regard to it.

and gang culture - Operation Trident is one

in which their use was beginning to become

such example.

commonplace. This trend should be arrested,

it is one

which

and instead a statutory procedure must be

The Act is subject to a sunset clause.

The police argue that witness protection

used. Applications for witness protection

witness anonymity orders can be made

measures now form an indispensable part

measures must be dealt with in Court

under the provisions of the Act after

of their work, enabling vulnerable witnesses

with 1 R v Davis[200 8] UKHL 36

31

December

2009.

No

The Act will be


04

the barrister

Are you moving with the times?

reconsidered by Parliament when it debates

complex trials which Require barristers with

serious and complicated criminal cases.

the Law Reform, Victims and Witnesses

many years of expertise to conduct them.

It

However, it is important to remember that

Bill 2009, which is due to be introduced in

is vital that these cases are tried within the

criminal barristers are doing vital work on

this year’s Queen’s Speech on 3 December

right legislative framework, and that the

society’s behalf; they are the unsung heroes

2008.

professionals,

or

of the hour, putting in long hours for little

to evaluate the lessons learned from July’s

solicitors, conducting the case are able

thanks both as prosecutors as well as defence

emergency

This new Bill will

to carry out their duties, and exercise

advocates. As we look to the future, with

give ‘vulnerable and intimidated witnesses,

professional judgment, within a system where

a new parliamentary session in sight – as

in particular in respect of gang violence,

the legal aid budget is appropriately set.

well as a General Election on the cards

the best possible protection, right from

The Criminal Evidence (Witness Anonymity)

– let us not forget those barristers and

the early stages of the criminal justice

Act 2008 is by no means a straightforward

solicitors who are working tirelessly behind

process’. While the details of the Bill have

piece of legislation. I have no doubt that a

the scenes, for little economic reward, in

not yet been revealed, the Bar Council

body of case law will develop around it and

the interest of the greater good.

will be taking a close interest in this

its successor. Work will

The complete practical guide to running your practice effectively

piece of legislation. One of our duties, as the

barristers and solicitors, evaluation will be

Tim Dutton QC

PUBLISHED IN ASSOCIATION WITH THE BAR COUNCIL

representative body for all barristers across

required of yet more evidence, with written

Chairman

England and Wales, is to ensure that

and oral submissions.

Bar Council

There will not have been much time

legislation.

the

be

they

barristers

be

required

by

There are legal aid

criminal justice system remains robust, so

budgetary implications for every single piece

that it works in the |public interest and that

of criminal legislation. I am not aware of any

trials are fair. Fairness means from both the

investment

Prosecution and the Defence perspective.

consequent upon this, nor other recent

in

the

pieces of legislation.

Public Interest

Legal

Aid

The Bar Handbook 2008

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Investment in the legal aid system must

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between the rewards of

can afford private representation A fair trial is at the heart of a civilised society,

regulatory functions.

And

by the

demands of the exchequer?

and the Bar Council has always said that barristers must be properly qualified, trained

Witness anonymity has caught the media’s

and properly remunerated. Cases which

attention and rightly so: it is a part of the

involve anonymous witnesses are often long,

justice system and affects some of the most

HOW TO ORDER

Telephone: +44 (0)845 370 1234 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

The Barristers

law in order.

A major new BBC television series The Barristers from the award-winning filmmaker Lynn Barlow gives a fresh insight into life at the Bar. By Gary Slapper, Professor of Law, Director of the Centre for Law at The Open University, and legal academic consultant to the series The Barristers.

O

f all professions, the Bar

one-hour films giving an honest and intimate

and social life. And at the core of all this law

has given Britain the

insight into all aspects of court life.

is the Bar.

historically

The country’s most powerful profession

These days you don’t have to go very far

and

consistently

opens its doors for the first time in its

into a newspaper or on a news website

produced

the

most Prime Ministers. It

has,

largest

history, revealing the highs and lows of a life

to come across a story about a country

single professional group in Parliament.

in chambers, the struggle of new barristers

which is falling apart at the seams. There

It has produced thousands of other highly

to balance their vocation against repaying

are, unfortunately, many countries where

influential people of major social importance

graduate debt and the perceived elitism of

the guarantee of justice according to the law

from the judiciary who built English law to a

the profession – all at a time when the courts

is not barristers in law courts but tanks on

widening array of millionaires and influential

and the Bar are facing great change.

the streets.

Cinema, drama and literary fiction about

There are also countries that have quite

Until now, the public at large have had a

the courts have, to date, shaped people’s

properly been described as ‘failed states’

limited insight into this immensely important

perceptions of the legal system. This series

because there is a complete breakdown of

public institution.

will do much to sharpen the public awareness

civil society in those places.

about the important issues facing barristers

are the major countries in which there is

A major new BBC television series The

and to demystify much of what is seen as

no effective democracy because – and this

Barristers from the award-winning filmmaker

a removed and recondite social enterprise.

includes some superpowers – they have no

Lynn Barlow gives a fresh insight into life at

Access to the extent given to this production

democratic elections. People, organisations

the Bar. The series follows the lives of a

for a TV crew is unprecedented. – never

and companies in such countries do not

variety of barristers in London, Birmingham

before, for example, has filming taken place

have any meaningful rights because there is

and Newcastle and shows all facets of life at

in the Old Bailey and in the House of Lords in

no effective way of vindicating them in law

the Bar including the challenging education

the way seen in this film.

courts. The preciousness of what we have

reformists.

and training required for entry, the difficulties

Then there

in Britain is thrown into sharp relief when

facing novitiate lawyers, the work of senior

The series is set to be quite popular because

it is contrasted with what goes on in nations

parts of the profession, and the big political

of law’s very wide resonance throughout

lacking a vibrant and politically free Bar and

and policy issues which face the Bar as it

society. For example, Law is this year the

accessible law courts.

moves into the 21st century.

most popularly subscribed undergraduate subject in the United Kingdom with over

Democracy

After years of careful negotiation with the

90,000 people applying to become new

characteristics including free elections and

Bar Council, a distinguished film crew was

students.

Over 250,000 are involved in

independent news media but above all it

given unprecedented access to court life and

legally-related work, and society is becoming

is necessary that ordinary everyday life for

the result is a ground-breaking fly-on-the-

progressively aware of the importance of law

people, organisations, and companies is

wall documentary series.

in areas like employment, family law, crime,

conducted according to law and that this

medicine, civil liberties, intellectual property,

system is protected by a reliable

The series has been produced by The Open

human rights, sport, media and many others.

and efficient legal system. You can

University and the BBC. It is a series of four

Law now applies to every aspect of individual

no more have civilisation without

depends

on

a

number

p.10

of

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08 p.1

the barrister

the barrister

the regions. A very effective network

for publicly funded family work. Changes

reflect complexity. In particular, that the

barristers whose experience is essential to

Russian mother whose daughter is British but

Lucy Theis QC, Chairman Family Law Bar

of

Association

representatives

were introduced which enabled barristers to

barrister who has to do the most work is

the system from practice, leaving the field

she is at risk of deportation and separation

organised meetings and collated

refuse to undertake this work, as the fee was

suitably remunerated as well as ensuring

to the young and inexperienced. It all comes

from her child. Tomorrow’s case involves a

views from across their area. The

not considered to be a reasonable fee. Many

that it is sustainable to continue to practice

at a particularly unfortunate time, given

father of four children who dearly want to

barristers ceased doing the work. This was not

in this important area. Of particular concern

that a key aspect of the success of the PLO is

have contact with him but he is currently in

accepted by the government. The FLBA and

is the apparent failures of those who have

the reliance of the court upon the (properly

The main themes of the feedback include the

Resolution (formerly the ‘SFLA’) undertook

responsibility for making these decisions to

remunerated) skills of experienced advocates,

following:

research to look at this issue in 2002. The

appreciate that the supply of barristers cannot

both in relation to case management and in

(i)

Concern about the reduction in the

research demonstrated there was a reduction

be turned on and off like a tap. When the issue

managing, supporting and advising highly

number of solicitors who do publicly funded

in barristers prepared to undertake this work,

is raised that further cuts will make the work

disadvantaged parties.’

family work, with many reports of firms

particularly more experienced barristers, and

unsustainable to continue to do, with the

giving up doing such work or very likely to.

many were considering ceasing to undertake

consequent loss of experienced practitioners

The realities of the extent of the vulnerability

The very features of these sorts of cases lead

One typical example was the senior partner of

doing this work. As a result the government

and risk to quality, the LSC response is that

of the section of society that is being put

to many barristers concluding that even on

a well established firm in the West Midlands

agreed to put 8% back into a revised FGFS in

they will keep the matter ‘under review’. Such

at risk is graphically described by one of

the current fees, the commitments, level of

confirming they were ceasing to undertake

2005. This helped stem the flow of those who

a response simply fails to recognise that you

the responses received by the FLBA from

responsibility and stress of this sort of work

any publicly funded children work on the

were considering whether to stop practising

can’t acquire the expertise built up over many

a family practitioner; ‘I am sure that my

does not make it worthwhile’.

basis that their accountant had advised them

in this area.

years overnight. Experience has shown that

letter will not be the only one that mentions

those who cease undertaking this work do

the sort of families we deal with. Yesterday

The failure by the government not to take

I represented a parent in a case where an

heed of these warnings will result in the most

interim care order was made in respect of

vulnerable in our society, often those without

the baby of a 17 year old mother who had

an effective voice, being put most at risk.

FLBA

fees

feedback has been invaluable.

that they were losing money on each file they opened. Accordingly, the partners would not

Three years later the publicly funded Family

not return. There has to be a system in place

support the continuation of that department.

Bar are now facing proposals which will

that not only retains the existing expertise but

These reports seem to counter the oft repeated

effectively wipe out the 8% put back into

also ensures talented and able practitioners

mantra of the LSC that ‘97% of the eligible

the scheme in 2005. Such a move fails

are attracted to this important area of work.

population are living within 45 minutes travel

to recognise the demands and expertise

The failure to properly recognise the longer

time of a family provider’. Even if correct

required to conduct such work, the increased

term implications is deeply troubling.

such a mantra fails to provide any measure

complexity in many cases and increases in

A further matter that needs to be recognised

of the capacity of those providers and fails to

overheads and costs. These proposals put at

is that figures frequently used by the

recognise the fact that most care proceedings

risk access to justice for the most vulnerable in

government and the LSC are gross figures

involve more than two parties who will be

society, many of whom face orders described

and often include VAT. There is no recognition

entitled to public funding. If there is only

by Mr Justice McFarlane in his address to

of the costs of practice, not only chambers

one or a limited number of ‘family providers’

the Association of Lawyers for Children in

expenses (usually between 20 – 30%) but also

in the area, where are the other parties to

November 2007 as ‘the most Draconian

other costs (travel etc). It is time for net rather

get representation? Often such parties are

order that an English court can make is one

than gross figures to be used.

vulnerable, have child care responsibilities,

for the adoption of a young child without the

very limited finances and are in need of

consent of the birth parents, with the effect

In the summer edition of the FLBA Magazine

urgent advice.

that he or she is permanently removed, for

‘Family Affairs’ Sir Mark Potter, President of

life, from his family of origin.’

the Family Division commented as follows:

(ii)

‘Unless there is an acknowledgment of the

Reduction in payments under the

Family Graduated Fee Scheme (‘FGFS’) will

The FLBA has decided to commission a survey

nature and extent of the tasks which are

cause many at the Family Bar to consider

of its members in the first week of October

undertaken by family lawyers and that a

whether they can continue to undertake such

2008 in order to provide robust statistical

reasonable rate of remuneration is required

work. Such reductions will have the most

evidence about access to justice and about

for these tasks, I have the utmost concern

impact on women and BME practitioners.

the functioning of the family graduated fee

for the future quality of family justice. I am

system. Dr Debora Price from Kings College

aware that many children’s panel solicitors

the

London is going to conduct the survey. We

are currently considering whether they or

Consultation Paper fail to recognise complexity

were able to achieve a 95% response rate

their firms can continue practicing in family

and seek to reduce the graduated element of

to the survey conducted in 2002. I hope we

law and that a number have already taken

the scheme which is such a vital part of the

will achieve a similar response rate; it will

a decision that they will be unable to do so.

scheme.

provide compelling evidence.

Similarly, the proposed reduction in the Bar’s

The FGFS was introduced in 2001. It resulted

The essence of a graduated fee scheme is

fees so as to provide a lower base line for

in a significant reduction in the payment

to ensure there is sufficient graduation to

future negotiations is likely to drive many

(iii)

09

The

proposals

outlined

in

a mental health institution. These cases are not only complex, but involve clients who are particularly challenging in their behaviour. My client yesterday was actually ordered out of court because of disruptive behaviour.

earlier accused the 51 year old father of raping her. The day before I represented a

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10

the barrister

lawyers in law courts than you can

difficulties confront barristers everyday in

action was taken to save the professional

have education without teachers in

many legal fields including criminal, family,

Bar “soon we’ll be replaced by a couple of

classrooms.

and public law. Scenes like those of criminal

chartered accountants and a good computer”.

barristers discussing the forensic problems

This documentary series is a most powerful

The legal system is the most important

posed by “special measures” applications in

and colourful case for why that cannot

guarantee of civilised democracy but it means

the context of a real case, a family barrister

happen.

nothing, of course, without a professional

explaining to a client the law on property

system for the delivery of advocacy and

related to a divorce, and public lawyers

expert opinion.

The English legal system

dealing with the intricacies of industrial

Professor Gary Slapper is Director of the

has developed a mode of advocacy which

planning applications, have been filmed in a

Centre for Law at The Open University, and

has been replicated across 53 countries of

way which will be fascinating and educative

legal academic consultant to the series The

the Commonwealth and therefore has an

in equal measure to many viewers. As a social

Barristers. It will be broadcast on BBC2 in

influential play across about a third of the

group, barristers are singularly articulate,

October.

world’s population.

p.6

At the heart of the

knowledgeable and often dryly humorous so

English legal system is the court system and

to watch them both in their work and then

at the heart of the courts is the Bar.

outside of it reflecting on what they do is entertaining as much as it is informative.

The popular image of barristers, partly promoted

by

certain

strands

of

news

Throughout the series there are scores of what

reporting, literature and drama over the last

will surely become commonly appreciated

fifty years, has been one of a group of

moments. These include the bright, young,

élite, privileged and socially remote men

newly qualified barrister whose first case

whose work is a very limited relevance to

is one in which he is representing himself

or importance for the majority of people.

in litigation against a large international

In fact, of course, as anyone reading this

organisation; barristers very patiently and

journal will know (but the public probably

politely engaged in pro bono work with

does not yet recognise) almost all barristers

excruciatingly

are ordinary men and women who, by virtue

remarkably onerous and competitive process

of having worked exceptionally hard during

of obtaining a tenancy.

difficult

clients;

and

the

their legal education and training periods, and having undertaken extraordinarily taxing

The filming was shot over a year after all

apprenticeships have gained their status as

the characters to be followed and the lines

practitioners.

of exploration had been decided. The work of then editing with minute precision over

Whilst not violating the provisions of the

four hundred hours of film into just four one-

Criminal Justice Act 1925, the filming has

hour episodes according to the demands of

included unprecedented shots within the

documentary imperatives, watchable human

House of Lords when we look at the case

drama, an evolving narrative arc, and under

of R (on the application of Edwards) v

the restrictions of all the relevant law and

Environment Agency, and within the Old

professional rules and etiquette has been

Bailey in the context of examining a murder

a test of some enormity but it has been

trial.

executed by Lynn Barlow and her team with a highly accomplished professionalism.

In many ways the drama will make interesting general viewing as we spend days in the lives

The

of barristers from diverse backgrounds and

civilised

engaged in a variety of specialisms. We also

periodically under doubt. Memorably, for

see exactly what fraught legal and evidential

example, Rumpole once observed that unless

Bar’s

quintessential

and

importance

well-ordered

life

to

comes

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It

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THE DENTIST CAN TELL YOU • Are you suitable for tooth whitening? • Will it work? - there are some people on whom tooth whitening is not very effective • Identify tooth decay which if left untreated, will cause pain while using tooth whitening products • Identify gum disease or staining and plaque deposits which will prevent a successful result and may cause unnecessary irritation and pain to gum tissue. • How effective tooth whitening will be if you have “blotchy teeth”, crowns, and bridges, darkly stained teeth or white fillings. WHAT IS TOOTH WHITENING? Using tooth whitening gels, the colour of your own teeth is lightened. These products contain peroxide(s), which actually bleach the tooth itself rather than just removing staining.The peroxide gels come in different concentrations the higher the concentration, the more effective the whitening can be.

WHAT OPTIONS DO I HAVE? Teeth can be whitened by a dentist, in just one appointment by using power whitening products like Zoom! By protecting the gums and lips the dentist prevents any unnecessary damage that may otherwise occur in the hands of someone less skilled and not professionally trained. Alternatively you can use a professional home whitening kit, under the supervision of your dentist. With custom made whitening trays which fit your mouth perfectly, you avoid any of the whitening gel and reduce any unnecessary gum irritation or damage. Home whitening may take up to seven days or more to achieve the best results, although white teeth can be seen after just one application. WHAT TOOTH WHITENING CAN & CAN’T DO Results can never be guaranteed as to how effective the whitening will be. However, everyone will experience some degree of colour change/whitening. To have a dramatic change you may wish to consider porcelain laminate veneers, where you can choose the colour of your smile. Whitening will not alter the colour of fillings, crowns or any other existing dental work, so you may have to have old dental work replaced to match your whitened teeth. Teeth that have stains or grey marks caused by childhood use of the antibiotic tetracycline are harder to whiten, and the results may be less successful.

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12

the barrister

the barrister

A new Framework for Plea Negotiation in Fraud Cases By Stephen Hockman QC, Head of 6 Pump Court Chambers

T

he management of long

2003. This permits the prosecutor to advise

Formerly, indications as to sentence had

and complex fraud cases

on conditions that would be suitable to satisfy

been strictly limited by the principles laid

has for some years been a

the public interest in the fair and efficient ad-

down in R v Turner (FR) [1970] 2 QB 321. The

concern in our legal system.

ministration of justice. Once again, this ena-

Court of Appeal (Criminal Division)’s ‘Good-

The Lord Chief Justice’s

bles the prosecutor to divert the suspect away

year’ principles represent the introduction of

Protocol already requires

from the court system, and to put in place

a formalised procedure of advance sentence

the prosecution and defence to resolve issues

conditions that are designed to ensure that

indication. The defence may seek an indi-

and agree evidence where possible prior to

the suspect does not re-offend. The Criminal

cation of sentence once a basis of plea has

the trial. Formal Criminal Procedure Rules

Justice Act 2003, as amended by the Police

been agreed. The Attorney General’s revised

encourage this and build opportunities for

and Justice Act 2006, the Code of Practice for

Guidelines on the topic confirm that prosecu-

discussions into the court timetable. How-

Conditional Cautions and the Code for Crown

tors should not agree a basis of plea unless

ever, there is at present no formal procedure

Prosecutors provide for appropriate princi-

and until the necessary consultation has first

for plea negotiation. Traditionally the crimi-

ples.

taken place with the victim and/or with the

nal justice system in England and Wales has

victim’s family. The Deputy Chief Justice was

shied away from sanctioning any sort of for-

A further change occurred when the Serious

emphatic in Goodyear that a judge should not

mal plea “bargaining”. We have been rightly

Organised Crime and Police Act 2005 came

be invited to give an indication in what would

concerned to ensure that judges retain their

into force. By sections 71-73, the Prosecution

be, or what would appear to be a “plea bar-

independence from either party, and that no

is empowered to enter written agreements

gain”. “He should not be asked or become in-

undue pressure is brought upon a defendant

with suspects and defendants for the provi-

volved in discussions linking the acceptability

to plead guilty.

sion of evidence and other forms of assist-

to the prosecution of a plea or basis of plea,

ance to the prosecution and law enforcement

and the sentence which may be imposed. He

However, recent changes have encouraged a

agencies. Courts are entitled to give addi-

is not conducting or involving himself in any

movement towards more open discussion and

tional credit for such assistance, based on the

plea bargaining”. Nevertheless, it is suggest-

negotiation between the parties to a criminal

formal agreement, when sentencing.

ed that Goodyear indications are a significant

fraud investigation and prosecution.

step towards what is proposed in the new A prosecutor still has no role in suggesting

draft Framework for Plea Negotiation.

Thus, firstly, the Crown Prosecution Service,

or recommending any particular sentence,

Revenue and Customs Prosecutions Office

but nevertheless has increasing duties to per-

Prosecutors have always had the power to

and other prosecuting authorities now have

form at the sentencing stage. These include

accept pleas to a lesser offence or offences

responsibility for charging offences. They ap-

drawing the judge’s attention to: any victim

charged if they consider that it is in the pub-

ply two tests, the evidential and the public

personal statement, any statutory provisions

lic interest to do so. However, they have no

interest tests. If a case satisfies both tests, a

relevant to the offender or the offences and

power to come to even a provisional arrange-

prosecution will follow. The Code for Crown

any aggravating or mitigating factors. (R. v

ment with the defendant regarding confis-

Prosecutors specifically prohibits prosecutors

Cain (Alan John) [2006] EWCA Crimp 3233,

cation, compensation, disqualification or

from charging more offences than are neces-

[2007] 2 Cr. App. R. (S.) 25, The Times, De-

any other aspect of sentence save under the

sary just to encourage a defendant to plead

cember 26, 2006), The prosecutor may also

specific provisions of the Serious Organised

guilty to a few. In the same way, they are

offer assistance to the court by making sub-

Crime and Police Act 2005 regarding offend-

prohibited from laying a more serious charge

missions, in the light of all these factors, as

ers who agree to assist investigations and

just to encourage a defendant to plead guilty

to the appropriate sentencing range. (Adden-

prosecutions.

to a less serious one. This has placed greater

dum to the Attorney General’s Guidelines on

responsibility on the prosecuting authorities

the Acceptance of Pleas and the Prosecutor’s

with regard to which offences to charge and

Role in the Sentencing Exercise 2005, New

which cases to divert away from the court

Paragraph C6.)

13

had concluded that there were clear advan-

munity penalties, fines, compensation, costs,

v Blackburn [2007] EWCA Crim 2290. No

tages in offering the parties in serious fraud

confiscation and disqualification.

less importantly, it is accepted practice in this

cases the opportunity to consider reaching a

country for the parties to hold off-the-record

court-sanctioned agreement at the earliest

In his article in the last issue of “The Bar-

discussions whereby the prosecutor will ac-

possible stage. The advantages were identi-

rister”, Mr Monty Raphael, joint head of the

cept pleas of guilty to lesser charges (or on

fied as relating to the large financial savings

Fraud and Regulatory department at the so-

a lesser factual basis) in return for a defend-

to the public purse that can be made by early

licitors’ firm Peters and Peters, comments:

ant’s timely guilty plea.

disposal of even a few such cases, and the

Indeed the entire

premise of the principle established in Good-

easing of the strain caused by delay on de-

“Being able to engage with the prosecution in

year [2005] 1 WLR 2532 is that the parties

fendants, victims and witnesses. It was also

white collar cases is a laudable reform, but

will have reached an agreed basis of plea in

suggested that, in some cases, investigators

only if it is not implemented as a cheap and

private before the judge is approached. What,

and prosecutors would, as a result, be able to

inadequate bureaucratic convenience which

it must be appreciated, Goodyear forbids are

pursue others involved in the criminality on a

provides few, if any, safeguards for all, save

judicial, not prosecutorial, indications of sen-

more focused and efficient basis. To this may

the unrestrained rich and well funded corpo-

tence. Indeed, Goodyear goes further than

be added, in the light of current concerns, the

rate client.”

would be permitted in the United States by

potential advantages to be achieved by way of

allowing the judge in certain circumstances

consistency and predictability in sentencing,

Among the safeguards inherent in the model,

which will facilitate the allocation of appro-

however, are that the whole of our existing

to indicate what sentence he would pass.

priate resources for custodial sentences.

framework of procedural and sentencing law

Your Lordships will also appreciate that in

and guidance (including the law as to disclo-

April 2008 the Attorney General issued a

A working group chaired by me, and includ-

sure) will continue to apply. In those cases

consultation paper regarding the possible

ing representatives from a range of stake-

in which plea negotiation takes place before

introduction here of a formal court-sanc-

holders, produced a model for consideration

charge, legal aid will be available under pow-

tioned plea negotiation framework for fraud

and consultation. The working group was set

ers taken in the Criminal Justice and Immi-

cases: “The Introduction of a Plea Negotia-

up under the aegis of the Attorney General’s

gration Act 2008. The conduct of the pros-

tion Framework for Fraud Cases in England

office and had the support of Gaon Hart of the

ecution in such cases will be strictly regulated

and Wales: a consultation”. The framework

CPS as its project manager.

in Attorney General’s guidelines.

would enable the prosecutor to agree (without

The working group believes that this model

In the case of McKinnon v. Government of

sentencing range is appropriate. The paper

could be introduced without primary legisla-

the United States 2008 UKHL 59, the House

summarises the current system, recognising

tion and on the basis either of a practice di-

of Lords was faced with an argument that it

the legitimacy of the informal plea negotia-

rection or on the basis of amendments to the

was an abuse of process, and an unjustified

tions that currently take place, unregulated

Criminal Procedure Rules with accompanying

interference with human rights, to allow an

though these are. In the Federal Courts of

Attorney General’s guidelines. The changes

accused to be extradited in circumstances

the United States, by contrast, the practice of

which it involves are modest and evolution-

where he would be placed under what was

plea bargaining is regulated and the courts

ary and are designed principally to encour-

alleged to be unconscionable pressure in the

have a duty to discuss the consequences of a

age the prosecution and the defence to talk

form of a suggested “plea bargain”. In the

guilty plea with the accused in open court and

to each other at the earliest possible stage,

leading speech on behalf of the Judicial Com-

to ensure that it has been entered voluntarily

and to facilitate the attainment of a transpar-

mittee, Lord Brown of Eaton-under-Heywood

and with a full understanding of those conse-

ent plea agreement for presentation to and

made the following observations, with which

quences. The contents of any plea agreement

consideration by the court, whose powers of

his colleagues agreed:-

must be disclosed in open court and the trial

binding the court) that a specific sentence or

disposal remain entirely unaffected.

judge has the power to accept or reject it.” “It is as well to recognise that the difference

Among the key provisions of the framework

between the American system and our own

are: the proposal that the ground rules for

is not perhaps so stark as the appellant’s ar-

discussion between prosecution and defence

gument suggests. In this country too there

We hope that our proposals, if implemented,

should be reduced to writing in advance, that

is a clearly recognised discount for a plea of

will offer a useful option for the just and con-

On 15th March 2007 the Government ap-

the agreement should be one which will en-

guilty: a basic discount of one-third for sav-

venient disposal of some of the longer fraud

proved the recommendations of the Fraud

able the public and any victims to have con-

ing the cost of the trial, more if a guilty plea

cases, thereby enabling more resources to be

Review, including its recommendation that

fidence in the outcome, that the plea agree-

introduces other mitigating factors, and more

concentrated on those in which a plea of not

there should be a formal plea bargaining sys-

ment may include reference to sentence and

still (usually one-half to two-thirds but excep-

guilty is properly maintained.

Until the recent case of R v Goodyear (Karl)

tem for cases dealt with by the SFO, the Fraud

that, as already emphasised, the courts’

tionally three-quarters or even beyond that)

A second evolutionary change has been the

[2005] EWCA Crim 888, there was no formal

Prosecution Service in the CPS, and serious

independence is expressly preserved.

The

in the particular circumstances provided for

introduction of conditional cautions under

process by which a defendant could seek a

and complex fraud cases brought by other

sentence recommendations could cover all

by sections 71 – 75 of the Serious Organised

sections 22-27 of the Criminal Justice Act

formal indication of sentence in open court.

prosecuting authorities. The Fraud Review

relevant issues including custodial or com-

Crime and Police Act 2005 – see R v P; R

system.

The appeal was therefore dismissed.


14

the barrister

the barrister

How safe is the interpretation of forensic science? Roger Robson, managing director at Forensic Access, explains why you should always seek a second scientific opinion

C

15

place. During this examination the defence

rister representing the suspect. He observed

proached defence organisations pre-trial to

experts observed quantities of white paint on

that no spermatozoa cells were present on

help ensure the evidence was robust enough

the deceased’s clothing and on the tape lifts.

the intimate swab extracts whatsoever....

to withstand the scrutiny of the Court Room.

The examination for transfer of paint had not

however, he observe lots of yeast cells.

This is better than no scrutiny at all or scrutiny undertaken by someone who is not quali-

been requested by the police, and perhaps more importantly had not been raised as a

In Conclusion

fied to pass judgment.

Given sufficient time a good forensic scien-

Mistakes tend to be made by human error, a

ommerciality of forensic

it a tendency to streamline and take risks

services emerged in the

in order to reach targets. Shift work is now

late 90’s. The Forensic

common practice and there appears to be

Never assume that the prosecution forensic

tist will always come from the angle that one

tendency to be bias [either way] or by mis-

Science Service (FSS) had

a drift towards a conveyor belt production

providers, hiding behind accreditation sys-

2.

Victim found dead in

uses the most appropriate tests in an attempt

leading the jury...indeed I have heard it say

moved to Agency status

line to meet the demands of police contracts.

tems, are offering the court the only possi-

her own house, signs of a struggle and she

to support or negate ones findings; if still

that it is our fault for not answering the ques-

and was now charging the

Whilst this may well be the most sensible

ble explanation; it may say in their statement

died from stab wounds. Her son, a drug ad-

left with a match then one can take comfort

tions that we haven’t been asked!

police for its services. The FSS were not al-

way forward for minor crime investigations

that they have considered other alternatives,

dict was charged with her murder, which he

that alternative scenarios have been fully ex-

lowed to make profit – they handed back any

the processes do not fit comfortably in the

but don’t then say what they are, nor have

denied.

plored. These days most scientists act merely

gains to the Treasury; likewise the Govern-

arena of complex scientific cases such as

they carried out an exploration in order to

ment were able to bail them out should they

“who-dunnit” murders, rapes, armed robber-

disprove, or otherwise the alternative.

fall short of revenue. In accordance with EU

ies and the like. New entrants are most often

regulations The Home Office encouraged the

now trained to undertake one task; the scien-

forensic market to open and allow for healthy

tist who gives evidence in court has little time

competition. Existing scientific companies

to think through which is the most appropri-

1.

took up the challenge and were soon offering

ate technique to use and check thoroughly

Motorway pile up; 2 fatalities. An initial crash

a fairly comprehensive range of forensic serv-

the results obtained by a pool of assistants.

involved several cars and a black 4x4; a white

ices. By this point Forensic Access was well

Productisation will only lead to evidence be-

established and decided to launch the first

managed to uncover fresh evidence.

potential link by the forensic scientist...this greatly strengthened the prosecution’s case. MURDER:

on the instructions posed by the police, work

Roger Robson is Managing Director of

Defence experts were asked to re-examine

in a product service industry and are lacking

Forensic Access Limited and can be

exhibits relating to both the victim and sus-

a holistic approach. Such a scientist is far less

contacted by phone: 0845 230 2414

pect. Various marks in blood suggested that

likely to spot the obvious link, actively seek

or be emailed:

the suspect had been present at the scene

justice and undertake the role to the best of

roger.robson@forensic-access.co.uk.

when the blood was wet. This was not con-

their abilities. Many of these faults are not of

The Forensic Access website is:

tested by the suspect.

their making.

www.forensic-access.co.uk.

lorry then approaches the scene and failed to

The defence experts were asked to look at ex-

In the current environment you should not

*CRFP:

ing overlooked between each product. Cases

stop in time and clips one of the crashed cars.

hibits not previously examined (though sub-

make any assumptions that the evidence is

Forensic Practitioners

real challenge to the FSS under the banner of

yielding inconclusive or nil results these days

Later a body is found in the central reserva-

mitted) and they looked at an item seized by

safe no matter which company was the pro-

Forensic Alliance Ltd which soon found repu-

are very rarely retested. Exhibits are selected

tion.

the pathologist, namely a clump of head hair

vider,

tation and credibility; Forensic Alliance Ltd.

that are most likely to yield evidence against

clenched within the hand of the deceased.

rensic scientist led

has since been acquired by LGC.

the suspect; taken together with police forces

Several versions of events put forward by

This did not match her own hair and the ex-

the work or his

In order to ensure safety of examination, all

initially screening exhibits for themselves

eye witnesses. Lorry driver charged with

pert suggested it was reasonable to assume

results.

providers are encouraged to take up accredi-

within force introduces an uncomfortable

manslaughter. Main contention was to ascer-

that the hair sample was related to the at-

tation for scientific procedures and CRFP* for

prosecution bias. Error rates will rise as

tain whether a black 4x4 or white lorry had

tacker. The victim’s son, at the time of the

The new Forensic

the scientist’s credibility to give evidence in

tighter deadlines are met.

struck the pedestrian that had been found in

murder had a shaven head.

Regulator is keen

court as an expert witness.

Case Examples MULTIPLE CAR COLLISION.

the central reservation.

Forensic Provider

which

for

the

Registration

fo-

VX - THE BARRISTER MARKETING PLATFORM

to ensure that the

The Role Of Defence Experts

instructed by the police to only examine the

3.

RAPE? A case involving an allega-

defence scientists

Ten years on the police now find themselves

It is vital, especially considering the issues

front bumper of the white lorry for fibres

tion of rape on a mature lady not in a rela-

are given a promi-

with 4 main forensic players offering, to dif-

raised above, that the Criminal Defence Serv-

matching the pedestrian’s clothing. A number

tionship. The forensic provider had reported

nent

fering levels, a relatively full service. There

ice supports the use of highly experienced,

of commonly occurring blue fibres matching

that quantities of spermatozoa had been re-

the future overall

has also been an emergence of many smaller

independent forensic experts, whose prima-

the pedestrian’s trousers were recovered

covered from an intimate swab pertaining

organisation of fo-

players who offer specialist forensic services

ry role is to critique the prosecution foren-

from tape lifts. Reported, as moderate sup-

to the victim. This result was verified by a

rensic science. We

either as sub-contractors to the main provid-

sic work and to remain completely impar-

port for the assertion that the lorry had hit

laboratory manager. As part of the protocol

will no doubt hear

ers or directly to the police and Criminal De-

tial. The independent experts must be able

the pedestrian.

the whole case is then peer reviewed by an-

from

fence Services. The forensic market now has

to objectively assess the forensic strategy,

Issues were disclosed as to whether these fi-

other Reporting Officer. There was no result

his plans in the

well accredited scientific procedures and the

re-examine exhibits, retest if necessary, ex-

bres may be as a result of secondary trans-

reported via DNA analysis.

near future.

scientists giving evidence in court are regis-

amine exhibits not previously examined and

fer and thus potentially eliminating the lorry

tered as worthy of giving evince as an expert

give a fuller understanding as to the realistic

from being in direct contact. Defence experts

The statement produced by the expert wit-

safe conviction we

witness.

alternatives given any revised scientific find-

were instructed to examine the black 4x4,

ness alluded to the fact that the presence of

must ensure that

ings. They should also be competent, when

which was taped. No obvious linking fibres

semen indicated that intercourse had taken

prosecution work

But are the results safe, is the evi-

necessary, in crime scene analysis and to un-

were observed. Furthermore, the defence

place recently and as such provided strong

is reviewed and

dence robust?

dertake their own examination prior to the

experts were asked to re-examine the tape

support to the victim’s version of events.

critiqued. I know

scene being cleaned up. Defence experts have

lifts from the white lorry to verify whether

A defence expert was instructed to undertake

of cases where the

revisited crime scenes many years old and

primary or secondary transfer had taken

scrutiny of the exhibits on behalf of the Bar-

police

Commercialisation of any service brings with

Council

position

him

in

about

If only to ensure a

have

ap-

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of


16

the barrister

the barrister

When Memory is the Evidence: Key Points from the Science of Human Memory By Professor Martin A. Conway, Institute of Psychological Sciences, University of Leeds

I

t is not unusual to encounter cases where the only evidence is accounts of what are claimed to be memories. This frequently occurs in cases of historic sexual abuse but can occur in many other types of case too, for example in a recent action outside the UK workers brought a case of forced unpaid overtime based solely on memories of hours worked up to 25 years ago. More generally, even when there is additional evidence the outcome of an action, criminal or civil, may nonetheless crucially depend on an account of a memory or set of memories. In these circumstances it would be useful for a court/tribunal to have an authoritative and accessible account of the nature of human memory - an account that they could draw upon to assist them in reaching more informed decisions. The recently published Memory & The Law Report, from the Research Board of the British Psychological Society aims to provide an accessible, widely agreed, set of guidelines about human memory that have been established through scientific research. The report lists 10 key guidelines and these are reproduced in Table 1 below.

Key Guidelines i. Memories are records of people’s experiences of events and are not a record of the events themselves. In this respect, they are unlike other recording media such as videos or audio recordings, to which they should not be compared. ii. Memory is not only of experienced events but it is also of the knowledge of a person’s life, i.e. schools, occupations, holidays, friends, homes, achievements, failures, etc. As a general rule memory is more likely to be accurate when it is of the knowledge of a person’s life than when it is of specific experienced events. iii. Remembering is a constructive process. Memories are mental constructions that bring together different types of knowledge in an act of remembering. As a consequence, memory is prone to error and is easily influenced by the recall environment, including police interviews and cross-examination in court. iv. Memories for experienced events

are always incomplete. Memories are timecompressed fragmentary records of experience. Any account of a memory will feature forgotten details and gaps, and this must not be taken as any sort of indicator of accuracy. Accounts of memories that do not feature forgetting and gaps are highly unusual. v. Memories typically contain only a few highly specific details. Detailed recollection of the specific time and date of experiences is normally poor, as is highly specific information such as the precise recall of spoken conversations. As a general rule, a high degree of very specific detail in a long-term memory is unusual. vi. Recall of a single or several highly specific details does not guarantee that a memory is accurate or even that it actually occurred. In general, the only way to establish the truth of a memory is with independent corroborating evidence. vii. The content of memories arises from an individual’s comprehension of an experience, both conscious and non-conscious. This content can be further modified and changed by subsequent recall. viii. People can remember events that they have not in reality experienced. This does not necessarily entail deliberate deception. For example, an event that was imagined, was a blend of a number of different events, or that makes personal sense for some other reason, can come to be genuinely experienced as a memory, (these are often referred to as ‘confabulations’). ix. Memories for traumatic experiences, childhood events, interview and identification practices, memory in younger children and older adults and other vulnerable groups all have special features. These are features that are unlikely to be commonly known by a non-expert, but about which an appropriate memory expert will be able to advise a court. x. A memory expert is a person who is recognised by the memory research community to be a memory researcher. It is recommended that, in addition to current requirements, those acting as memory expert witnesses be required to submit their full curriculum vitae to the court as evidence of their expertise. In summary, the picture of human memory currently emerging from scientific research is that memory is fragmentary and malleable

and, most importantly, can contain errors and even wholly false memories of which the individual rememberer is completely unaware. Guidelines ‘i.’ through ‘v.’ provide more specific detail on this view of human memory and within the report itself further sections provide reviews of the relevant legal considerations and the scientific evidence that supports each guideline. A full reference section to the scientific literature is also included for those who wish to delve further. Consider then two major beliefs about human memory, prevalent in our courts, that the guidelines show to almost certainly be incorrect: the first is that fragmentary, incomplete, memories are unreliable and the second is that the recall of highly vivid details indicates that a memory is being recalled accurately. In fact, memory is always time-compressed and fragmentary (guideline ‘iv.’ See Table 1) it is a representation of experience and in no sense a literal record. An account of an experience that does not contain forgotten and poorly remembered details is the account which is unusual and which requires additional support if it is to be accepted as being of a memory. The powerful belief that the more specific the details recalled the more likely a memory is be correct turns out to be pervasive, consider for example the following study: In an experiment that featured a mock trial of a bank robbery, mock jurors were asked to judge the credibility of the evidence of the witnesses. One set of witnesses described events simply and without any details. For example, the (mock) witness might state “as the robber ran out of the bank I think he turned right and ran off down the street”. In another version the same witness (to a new mock jury) would state “as the robber, who I remember was wearing a green jumper, ran out of the bank I think he turned right and ran off down the street”. This second version of events was rated as far more likely to be correct than the first version. The effect is known as ‘trivial persuasion’ because by inclusion of a trivial or irrelevant but highly specific detail the perceived credibility of the evidence is markedly raised. Other evidence reviewed in the Memory & The Law Report shows that there is no guarantee that any detail in a memory, whether

specific or otherwise is correct. Recall of some very specific details, e.g. verbatim accounts of spoken utterances of more than a few words, etc., (see Table 1 and guidelines ‘v.’ and ‘vi.’ in the report for more of these types wholly implausible details) are very unlikely to be correct. Error and falsity seems especially characteristic of childhood memories but research has shown that this can be occur, and indeed does occur, for memories from any age. Consider the following memory, relayed to me appropriately enough by a barrister: A middle-aged man recalled his father distracting him when he was a young boy (about 4 years old) by asking him who was the first man on the moon. He had been intensely interested in the moon landings when he was a young boy and this incident occurred while his father was on the telephone to his mother who had just given birth to his younger brother. My informant had a vivid and fond memory of his father placating him in this way, he was highly agitated by the birth, and in his memory he could ‘see’ his father on the telephone and almost ‘hear’ his voice. It was only decades later that he realized that his brother had been born in 1968, one year before the first moon landing. Consider too another well know case that illustrates how memory can be simultaneously true and false. A woman was raped one evening in her apartment in New York. The police were called in and quickly developed a theory about who the attacker might be. The next day they held a line-up that include the suspect and several volunteers taken fairly randomly for the streets outside the police station. The victim singled out a man in the line-up and was powerfully confident this was the man, indeed she strongly recognized his face. But he was not the police suspect and, moreover, he had the perfect alibi: he had been on live television at the time the rape had taken in place. Subsequently it seems that in fact he had been on television in the woman’s apartment when the attack had taken place. The image of his face had been incorporated into her memory. Extensive research has now shown that inducing false details into memories and even creating wholly false memories is relatively easy and there is no doubt that this occurs spontaneously in everyday life. The research reviewed in Memory & The Law provides an accessible overview of the relevant studies and their findings (section 7 of the report provides a particular valuable review of research into identification parades).

Perhaps the main contribution of the report is to show how current scientific thinking about memory has come to fully appreciated that memories can be correct, they can be wrong (in their details), even wholly false, and, importantly, correct and wrong at the same time. With the latter combination of truth and error being more frequent than we have been able to acknowledge previously. Also of note is that these memory errors can arise nonconsciously and without any intent on behalf of the rememberer. The evidence reviewed in the report does not cover malingering and lying it is, rather, solely concerned with what we might call honest errors or, in the case of false or confabulated memories what have been memorably termed honest lies. In closing this article I would like to go beyond what is contained in the report and very briefly consider how wholly false memories might be created in, as an example, historic sexual abuse and also what motivations might be operating here. I choose adult memories of sexual abuse as an example because of a very strong belief that is held about reports of these sorts of memories which can best be summarized by the statement: Why would they say this it if it was not true? There are, of course, many reasons why someone might recount such memories when they are false, revenge and/or financial gain being potential candidate motivations. However, the motivation I want to consider here has a more psychological aim. Interestingly, this motivation was first suggested to me by a barrister who had acted in many of these cases and although it is pure speculation I have come to consider it a fine insight. Let us suppose that a person had a very difficult childhood with undermining, emotionally cold, and, perhaps, a physically aggressive parent or parental figure and that subsequent to childhood much else in their life had been bad. This individual remembers an incident from childhood that seems peculiar and seems to suggest some sort of abuse. They then try to image what else might have happened in this poorly remembered event, perhaps they create a visual mental image of what might have taken place. This leads to further imaging and they then begin to find it difficult to distinguish in their own mind what has been imagined versus remembered (technically this is known as a source error, one cannot recall the source of some information). Indeed, for them the images are now experienced as memories. This is the process known as imagination inflation and research shows that it is a powerful way in which to create false memories (see

17

guideline ‘viii.’). Now the individual has a set of abuse memories and brings a case against the hated figure from childhood. The abuse memories may serve two purposes one being revenge on the person and the other, and this is the more interesting one, they serve to explain the various failures and disasters that have predominated in the victim’s life. Explaining one’s life in this way is a powerful motivation to develop a set of (false) memories that one experiences as true. As I commented above, this is purely speculation (although I think that in some cases it plays an important role), nonetheless the self-defining function that memories serve in a person’s life as a means of explaining who they are should not be overlooked, particularly in legal settings. Finally, we should not lose sight of the fact that memory can be correct too. After all people are abused, attacked, and otherwise offended against and their memories will usually be a mix of well remembered details (normally just a few), a lot of forgotten details, and some details that incorrect but which they believe to be true or which they suspect might be true – that is what a typical memory looks like. Even though such memories are fragmentary and may contain (honest) errors they can nonetheless by true, true that certain experiences took place and true about at least some details. Indeed, at more general levels memory less prone to error (see guideline ‘ii.’). Thus, it is certainly possible that a person could remember they had been abused, attacked, or assaulted, etc. and be perfectly correct, while at the same having detailed memories that are wholly false. That is why additional evidence, independent of the rememberer, is virtually always required when judging the truth of memory (see guideline ‘vi.’). Address for correspondence: Martin A. Conway, Head, Institute of Psychological Sciences The Leeds Memory Group University of Leeds Leeds, LS2 9JT England Email: M.A.Conway@Leeds.ack.uk


18

the barrister

the barrister

19

How will ‘people power’ change the Barrister’s market?

being considered for a new case may well

relations. Effectively, by referring clients to

knowledge, expertise, and a familiarity with

depend on the extent of that barrister’s online

lawyers who have the necessary experience

specific opponents. This is the key to letting

presence.

However, to properly showcase

and who can objectively assess the merits

consumers find their most suitable legal

their professional backgrounds, barristers

of a given claim, law brokers aim to better

representative, and hence the key to gaining

Traditionally, barristers received their work through solicitor referrals, and consequently had little reason to focus on marketing, promotion, and developing good-will relations directly with consumers. However, the growing public appetite for on-demand interaction is likely to challenge this typical lack of ‘service selling’ among barristers

must go beyond just uploading basic facts

protect the interests of clients, and improve

new clients. Ultimately, these directories will

about their specific areas of expertise and

the quality of referrals to individual lawyers.

provide barristers with a fighting chance at a

hourly rates. The power of online technology

This demonstrates an understanding of the

time when reforms to increase competition in

requires

modern legal market as it becomes more

the legal profession are about take hold.

a

much

more

comprehensive

approach. Contemporary online directories

By Dr. Yuri Rapoport, Founder, Prime Law Brokers (Australia) the world’s first legal broking service

A

competitive and more consumer-oriented.

allow consumers to perform sophisticated

While the inert ‘ostriches’ expose their

searches; for example, someone may want

The power to independently ‘pull’ desired

proverbial ‘behinds’, and wait for something

indulge

and advances in information technology on

professional profiles available online.

A

a barrister who has 10 years experience

information off the Internet, rather than have

to happen, the proactive barristers, who begin

in the power of online

other sectors of the economy, and argue that

key benefit is the prospect for lawyers, with

in High Court (Queen’s Bench Division)

it ‘pushed’ onto consumers by advertising,

to upload their professional profiles today,

enables the public to make informed decisions

could well be the ones doing the ‘kicking’ in the future.

s

consumers

technology, a difference

the ‘brave new world of legal services’ is

good professional track-records, to win back

representing clients against “YYY Insurance

of

much closer than many of their peers wish

considerable ground in the battle for new

Ltd”. It would, therefore, be insufficient for

about which solicitor and/or barrister to

to believe.

clients against the well-funded commercial

barristers to limit their professional profiles

employ. However, the only way to efficiently

practices that ‘farm’ clients by expensive

to a declaration of expertise alone. The level

sort

So what can barristers do to prepare

advertising campaigns. This consumer-driven

of detail required by modern consumers,

information on lawyers’ case-experience, is

Dr. Yuri Rapoport (SJD) founded Prime

for the future, and what will the

shift towards restoring the balance between

demands professional profiling that is ‘case

via powerful online search engines. That is

Law Brokers (Australia) the world’s first

consequences be if they don’t?

public perception of individual lawyers and

specific’.

Moreover, by registering their

why legal practitioners need to come to terms

legal broking service. He has launched an

their actual professional ability may help to

positive experience on a ‘case-by-case’ basis,

with the importance of having online presence,

online version of a similar service in the UK,

and understand that self-promoting websites

Rapoport’s Directory.

opinion

on

the

future of legal services is emerging amongst

practitioners.

While at one end of the legal community complacent lawyers maintain that modern

through

the

buying trends and proposed reforms by the

Traditionally, barristers received their work

bring back the somewhat forgotten qualities

barristers not only increase their chances

Legal Services Act 2007 will not adversely

through solicitor referrals, and consequently

of legal practice as a profession (as opposed

of having the most appropriate new matter

will not be enough.

affect individual practices, the other end sees

had little reason to focus on marketing,

to ‘a business’) that were shed away over

referred to them, but are also more likely to

Consumers

proactive lawyers taking considerable steps

promotion, and developing good-will relations

the years following deregulation of solicitor

fulfil their client’s expectations by delivering

naturally prefer the

advertising.

the desired result.

efficiency of online

to welcome change.

directly with consumers. However, the growing

which

legal

likely to challenge this typical lack of ‘service

By registering their track-records with online

This formula has been proven through the

offer

professionals, however, is idling somewhere

selling’ among barristers. Savvy consumers,

legal directories, barristers will be able to

experience of law brokers (legal referral

search

c o m p a r i s o n

The

large

majority

of

today’s

sophisticated and

in the middle; and by burying their heads in

who

about

properly showcase their professional profiles

denial of things to come, these ‘legal ostriches’,

individual barrister’s professional records,

directly to consumers. In a similar way to

The key lesson learned by these legal

functionality

may unwittingly be exposing themselves to a

are set to challenge traditional methods used

price-comparison

allow

intermediaries is that the highest level of client

can

proverbial ‘kick in the behind’.

to select barristers for given cases. Whereas,

individuals to assess costs and conditions of

satisfaction arises when consumer interests

process information

presently clients have limited resources to

various service providers in other commercial

are aligned with the experience of individual

on a large number of

Most barristers will raise their ‘tail feathers’

gain objective information on barrister’s

sectors (e.g. insurance, travel and finance),

legal practitioners.

legal professionals.

and concede to the charge of membership in

professional backgrounds, and rely mostly

modern consumers of legal services will use

refer clients to lawyers by firstly looking at

this majority herd; but many will defend their

on their solicitor’s guidance; in the future, we

online directories to gain information on

records of individual practitioner’s experience

When with

information

online

websites,

which

As a rule, law brokers

registering

can expect online directories and comparison

lawyers’ case experience and expertise in

their solicitor counterparts, have traditionally

websites to provide comprehensive data on

specific areas of law. Of course, it will be up

then consider all other factors. It is clear that

directories,

been denied opportunity to independently

barristers’ professional profiles.

to the individual barrister to pull their head

lawyers experienced in dealing with a specific

barristers

out of the sand and recognise that online

party will know how that party and their legal

consider uploading the

such

should

feel that until the expected changes are

Such increased public access to information

directories are at the leading edge of modern

representatives think; including tendencies

in ‘full swing’, remaining among the inert

about individual practitioner’s track-records

consumer solutions. But above all, barristers

towards out-of-court settlements, preferences

profiles that makes

observers is a safe policy. In contrast, there

represents both threats and opportunities for

must acknowledge that registering with these

towards obtaining judgments, the extent of

them

are proactive barristers who consider that

the legal community. Although, some lawyers

Internet-based services will mean losing

flexibility in negotiations etc. This amounts

from

the

nothing, and potentially, gaining a lot.

to invaluable knowledge in assessing whether

Their

professional

a case is worth pursuing, and provides a

track-records must

solid foundation for building lawyer-client

demonstrate niche

herding instincts can be hazardous to their

may oppose being measured on professional

professional future.

They recognise the

merits alone, most legal practitioners will

impact of modern consumer buying trends

see the potential benefits of having their

In the near future, a barrister’s chances of

Summer Shirts

instantly

position and argue that barristers, unlike

Consequently, they

Herbie Frogg

that

in dealing with a given opponent; and only

seek out new clients.

of

data-

services) in Australia over the past decade.

access

amount

will

directories,

public appetite for on-demand interaction is

extensive

type

of

stand

case

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NEWS ROUND UP

20

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 VOLUNTARY ACCREDITION PLANNEWS COULD LEAD INCOMPETENT HIGHER NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSTO NEWS NEWS NEWS NEWS NEWSCOURT NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS ADVOCACY NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The Legal Services PolicyNEWS Institute at The NEWS College NEWS of Law has warned the Solicitors Regulation Authority thatNEWS their proposals for voluntary NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS accreditation for NEWS solicitorNEWS higher court advocates notNEWS be in the publicNEWS interestNEWS as they NEWS could lead to incompetent solicitors appearing NEWS NEWS NEWS NEWS would NEWS NEWS NEWS NEWS NEWS NEWS NEWS in those NEWS courts. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSassessment NEWS NEWS NEWS NEWS NEWS ofNEWS NEWSadvocates NEWS NEWS NEWS The Institute callsNEWS for mandatory and compulsory accreditation new solicitor becauseNEWS “there isNEWS a clear NEWS case in the NEWS NEWSand NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSasNEWS public interest in the NEWS interest of clientsNEWS that those who claim competence in higher courtsNEWS advocacy shouldNEWS be certified in advance NEWS NEWS NEWS NEWS NEWSand NEWS NEWS NEWS NEWS NEWSclient NEWS NEWS having demonstrated the NEWS appropriate knowledge skills. NEWS This would minimise the risk to anNEWS unsuspecting and NEWS promoteNEWS the effective NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS and efficient administration of justice.” NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The proposed SRA scheme envisages voluntary rather than NEWS compulsory accreditation, self-audited compliance with the NEWS Code of NEWS Conduct NEWS and NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS proposedNEWS competence standards, afterthe-event professional or accountability. NEWS NEWS NEWS and NEWS NEWS NEWS NEWSdiscipline NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Professor Stephen Mayson, Director of the NEWS Institute,NEWS which was set up by the NEWS College NEWS in 2006 to oversee legal policy formulation and planning, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS argues that the SRA’s proposals will not ensure high standards of advocacy and will put solicitors at a very clear competitive disadvantage to NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS barristers appearing in the higherNEWS courts. “On this basis, a more appropriate response might be that the SRA should adopt the Bar’s Code NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSforNEWS of Conduct, or that the SRA and Bar Standards Board shouldNEWS jointly promulgate a newNEWS code ofNEWS conductNEWS and standards higher NEWS court’s NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS advocacy.” NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The Institute’s response the SRA’s consultation alsoNEWS says that the proposed approach wouldNEWS encourage otherNEWS organisations NEWS NEWS NEWStoNEWS NEWS NEWSpaper NEWS NEWS NEWS regulatory NEWS NEWS NEWS NEWS NEWS to impose before-the-event safeguards or risk-avoidance The Legal Services Commission other NEWS large providers legal work NEWS NEWS NEWS NEWS NEWS NEWS NEWSmeasures. NEWS NEWS NEWS NEWS NEWS or NEWS NEWSofNEWS NEWS might impose their own requirements for approved certification of solicitor Professional indemnity also requireNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSadvocates. NEWS NEWS NEWS NEWSinsurers NEWS might NEWS NEWS similar certification or increased for firms engaging in higher courts advocacy. NEWS NEWS NEWS NEWSpremiums NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSprocess NEWSand NEWS It argues that the proposed voluntary accreditation scheme would be considerably more onerous than NEWS the present compulsory NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS would put off some would-be advocates and lead to some current higher courts solicitors withdrawing rather than submit to accreditation. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS It concludes: “Taken in theNEWS round, NEWS the SRA NEWS proposals seem to us to leave too NEWS much toNEWS market forces client NEWS choice, inNEWS relationNEWS to services NEWS NEWS NEWS NEWS NEWS NEWS NEWSand NEWS NEWS where the risk ofNEWS incompetence poor service is not adequately addressed the NEWS event byNEWS sanctions on theNEWS practitioner or compensation NEWS NEWS NEWSorNEWS NEWS NEWS NEWS NEWS after NEWS NEWS NEWS NEWS NEWS for an aggrieved NEWS NEWS client.” NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The Acid Letters donated Fees NEWS Matters - Contractual Terms Update NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSBath NEWSMurderer NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The introduction of the new Contractual Terms of Work, as the to the Radzinowicz Library by Vivian NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS standardNEWS basis upon which counsel will accept instructions from NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Robinson, QC. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS2009. NEWS NEWS NEWS NEWS NEWS solicitors, has unfortunately beenNEWS delayedNEWS until Autumn NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWS NEWS The Radzinowicz Library NEWS at the Institute Criminology NEWS NEWS of NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The introduction the new Contractual Terms of Work, as the Cambridge university hasNEWS received a gift of the letters of John NEWS NEWS NEWS NEWS NEWS from NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS standardNEWS basis upon which counselNEWS will accept instructions George Haigh – The Acid bath Murderer– (July 24, 1909 – August NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS solicitors, has unfortunately been NEWS delayed until Autumn 2009. 10, 1949, executed). He wrote theNEWS letters to his parents from NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Lewes and Brixton Prisons while awaiting trial and execution NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWS NEWS NEWS NEWS NEWS Difficulties have been encountered concerning the practicalities of NEWS NEWS for the murder six people. Haigh was born in Wakefield, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS implementing theNEWS new Terms and NEWS these difficulties have caused Yorkshire and spent some of his youth as a choirboy at Wakefield NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS delay forNEWS softwareNEWS providers and for amending the Cab RankNEWS Rule in NEWS NEWS Cathedral. He was imprisoned several times between the years NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the Bar Code of Conduct. of 1934 and 1944 for fraud and theft. It was in prison that Haigh NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSwith NEWS NEWS NEWS NEWS NEWS experimented the effects of sulphuric acid onNEWS disposing NEWS NEWS NEWS NEWS NEWSTerms NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The Bar NEWS Council is determined thatNEWS these new Contractual of the bodies of mice; he eventually used this practice on six NEWS NEWS NEWS NEWS NEWS NEWS are implemented as soon NEWS as possible but isNEWS equallyNEWS determined that NEWS NEWS victims NEWS (althoughNEWS he laterNEWS claimedNEWS nine) byNEWS placingNEWS the bodies in NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the practical aspects of implementation have been NEWS clearly thought a 40-gallon drum with acid. He would then pour the remaining NEWS NEWS NEWSOne NEWS NEWS NEWS NEWS NEWS NEWS NEWSdrain. NEWS NEWS NEWS NEWS through NEWS and problems resolved. aspect being dealt with is ‘sludge’NEWS down a NEWS large manhole Haigh had been operating NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS making the necessary amendments to the NEWS Code of Conduct to under the false impression that if the police could not find aNEWS body, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS protect the publicNEWS interestNEWS yet enable counsel to refuse instructions then heNEWS could not be charged withNEWS a crime. However, a search of NEWS NEWS NEWSterms. NEWSThe NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS items NEWS offered on inappropriate Implementation Committee, his workshop in NEWS Crawley NEWS revealedNEWS not onlyNEWS some personal NEWS NEWS NEWS NEWS NEWS NEWS the NEWS NEWS NEWS NEWSand NEWS formed last year NEWS to deal with the practicalities of operating new NEWS NEWS belonging to his NEWS victims, NEWS but also NEWS human bone fragments NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Terms, isNEWS workingNEWS hard toNEWS resolve these issues and NEWS liaising closely gallstones in the acid bath. NEWS NEWS NEWSand NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS with software providers the Law Society. In personal letters to hisNEWS parents NEWS Haigh attempts explainNEWS his NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWStoNEWS reasons for committing murder, stating that he had been left with NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS In the meantime, the ability to make complaints to the Fees a craving for blood after being injured in aNEWS car accident. It seems NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWS NEWS NEWS NEWS NEWS NEWS Collection Office of the Bar CouncilNEWS under the Withdrawal Credit NEWS NEWS that thisNEWS explanation wasNEWS an attempt to construct insanity NEWS NEWSCounsel NEWScan NEWS NEWS NEWS NEWS NEWS NEWS NEWS an NEWS NEWS Scheme NEWS still continues. also use the contractual termsNEWS NEWS plea, butNEWS it was ultimately unsuccessful he was NEWS found guilty by NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSasNEWS NEWS that wereNEWS introduced into NEWS the CodeNEWS of Conduct in 2001 (Annexe G2 NEWS NEWS jury and sentenced to death. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS of the Code). Those terms enable counsel both to sue and to lodge NEWS NEWS NEWS of NEWS NEWS NEWS NEWS NEWS NEWS complaints underNEWS the Withdrawal CreditNEWS Scheme.NEWS NEWS NEWS NEWS The Radzinowicz Library NEWS was founded in 1960 and NEWS named after NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWStheNEWS NEWSofNEWS NEWS NEWS Sir LeonNEWS Radzinowicz, first Director the Institute (1959–72) NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS For queries, please contact JaniceNEWS Marshall, Fees Collection and Wolfson Professor of Criminology (1959–73). The library NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS criminology NEWS NEWS NEWS NEWS ManagerNEWS at the Bar Council on 020NEWS 7611 1375 houses NEWS the mostNEWS comprehensive collection in the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS United Kingdom and is internationally recognised as a worldNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSjustice NEWS NEWS NEWS NEWS NEWS NEWS class criminal resource. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS

the barrister

21

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 The Criminal Team atNEWS Manchester’s St John Chambers has further NEWS NEWS NEWS NEWS NEWS NEWSprestigious NEWS NEWS 9 NEWS NEWSStreet NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS boosted its innovative Nine Lives Community Fund with a little help from ex Manchester NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS unitedNEWS Manager Tommy Docherty. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWStoNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Clients and guests were invited the Marriott Victoria andNEWS Albert NEWS Hotel last monthNEWS for the Chambers’ annual summer party. NEWS Attendees NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSorNEWS NEWS enjoyed NEWS drinks and food and, for aNEWS small charitable fee, theNEWS chanceNEWS to win aNEWS weekend in Paris, a caseNEWS of champagne dinner NEWS for two at the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Marriott.NEWS In addition theyNEWS had the NEWS opportunity to meet and have their photograph taken withNEWS former Manchester United Manager Tommy NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Docherty. In addition Tommy gaveNEWS a very amusing talk about his lifeNEWS in football. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The event came hot on theNEWS heels ofNEWS a five aNEWS side tournament held lastNEWS month,NEWS with theNEWS two events raising in excess of £1,000 for NEWS chambers’ NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS philanthropic Nine Lives Community Fund.NEWS A golf day is nowNEWS being planned September. NEWS NEWS NEWS NEWS NEWS NEWS NEWS for NEWS 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 Fund, set up NEWS by the chambers last yearNEWS workingNEWS in conjunction the Community Foundation forNEWS GreaterNEWS Manchester, aims to raiseNEWS NEWS NEWS NEWS NEWS NEWSwith NEWS NEWS NEWS NEWS NEWS NEWS around £10,000 total each year through as this as wellNEWS as through a payroll giving scheme across chambers. NEWS NEWSinNEWS NEWS NEWS events NEWSsuch NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS From theNEWS Fund, itNEWS plans toNEWS supportNEWS nine local community groups or projects. Community will administer the fundNEWS on the NEWS NEWS NEWS NEWS NEWS NEWS The NEWS NEWSFoundation NEWS NEWS NEWS NEWS chambers’ behalf.NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS 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 Loasby, hasNEWS been responsible for organising event NEWS and comments: wanted to putNEWS on a party with aNEWS NEWS NEWS Senior NEWSCriminal NEWSClerk NEWS NEWS NEWS NEWSthe NEWS NEWS“We NEWS NEWS NEWS difference for ourNEWS clients rather the usual drinks and nibbles together. Mr Docherty a fantastic speaker and offering opportunity NEWS NEWS NEWSthan NEWS NEWS NEWS NEWSget NEWS NEWS NEWSisNEWS NEWS NEWS NEWS the NEWS NEWS for guests to meet and talk with him provided a realNEWS point ofNEWS difference for our event”.NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS For moreNEWS information about working with the Community call Tariq Ahmed on 0161NEWS 214 0959. NEWS NEWS NEWS NEWS NEWS NEWSFoundation NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS New Criminal Bar Chairman calls for NEWS freshNEWS focusNEWS on training NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Peter Lodder QC, who started work as Chairman of the Criminal Bar Association onNEWS the of 1st September, has called NEWS for improvements to NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the way NEWS in whichNEWS potential barristers are trained. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS SpeakingNEWS as he took on his year-long role as head of 4,000 prosecution and defence in England and Wales, said: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSbarristers NEWS NEWS NEWS NEWSheNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS “I wholeheartedly support the efforts made by Tim Dutton QC, the Chairman of the Bar, to prioritise the attraction and retention NEWS of talented NEWS NEWS NEWS NEWS NEWS NEWSservice NEWSto NEWS NEWS NEWS NEWS NEWS NEWS NEWS young people to the Bar. IfNEWS we are NEWS to continue to provide the NEWS highest quality the public, we must ensure that the brightest and best NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS come to the Bar, no matter what their background. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS He went NEWS on: “There continues to be an enormous people training the bar. A huge percentage willNEWS never gain pupillage and NEWS a NEWS NEWS NEWS NEWS NEWSnumber NEWSofNEWS NEWS for NEWS NEWS NEWS NEWS NEWS NEWS significant number shouldNEWS not. There are important standards issuesNEWS surrounding theNEWS entry onto Bar Vocational Courses. The control andNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS regulation of course content is a key issue NEWS for the bar, and for the Bar Standards Board, whichNEWS regulates BVC providers. Those training the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSfor NEWS Bar mustNEWS know that their NEWS qualification will NEWS stand them in good stead,NEWS whetherNEWS they pursue a career at the Bar or elsewhere; thisNEWS is a vitalNEWS part NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS of our continued efforts toNEWS ensure NEWS that talent and excellence are at the centreNEWS of the Criminal NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Bar. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSSally NEWS NEWS NEWS NEWS NEWS NEWS “At a time of considerable pressure on the Criminal Bar, I will be continuing my predecessor O’Neill’s work to ensure that the Criminal NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Bar retains its independence, so that it can continue to act in the public interest”. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Prison system geared to meet Justis Publishing’s training awarded CPD NEWS NEWS NEWSnot NEWS NEWSup NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSprisoners NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS accreditation for barristers needsNEWS of older NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS For its training electronic legalNEWS publisher JustisNEWS Nacro, the crimeNEWS reduction charity, has backed theNEWS Chief NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS sessions, NEWS NEWS NEWS NEWS Publishing Ltd has secured accreditation through the BarNEWS Inspector of Prisons' call for a national strategy for older NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Standards BoardNEWS for theNEWS continuing professional prisoners. Paul Cavadino, Nacro'sNEWS Chief Executive, said: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS development NEWS NEWS (CPD) of barristers in England and Wales NEWS NEWS NEWS NEWS NEWS "Far more needs NEWS to be done to cater for theNEWS physical, mentalNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS and welfare needs of older prisoners. Eighty per cent of older NEWS NEWS NEWS NEWS NEWSmove NEWS NEWS NEWS NEWS NEWS NEWS This important sounds a ringing endorsement both for our prisonersNEWS have a NEWS disabilityNEWS or chronic illness and around halfNEWS have NEWS NEWS NEWS NEWS NEWS usually NEWSdepression. NEWS NEWS NEWS NEWS NEWS NEWS NEWS entertaining NEWS NEWS products and forNEWS the structured, waysNEWS in whichNEWS our mental health problems, Many NEWS parts of the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS trainer David Finch coaches usersNEWS on them. prison system still have wholly inadequate facilitiesNEWS to deal with NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS these needs. David said that he was pleased training courses have now NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSour NEWS NEWS NEWS NEWS receivedNEWS the official recognition been NEWS working NEWS towardsNEWS for "It is often harderNEWS to resettle olderNEWS prisoners because they are NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWShe’s NEWS the last few months. He added: “This means that barristers will more likely to be institutionalised. It is particularly important NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS benefit from ourNEWS sessionsNEWS in two ways: they’ll learnNEWS how to NEWS get to ensureNEWS that offending programmes in prisons NEWS NEWSbehaviour NEWS NEWS NEWS NEWS are NEWS NEWS NEWS NEWS NEWS NEWS the most out of their subscriptions; and now the training suitable NEWS for olderNEWS prisoners. At present they are often geared to NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSmodules NEWS will alsoNEWS count towards annual CPD requirement.” the needs of offenders at NEWS younger NEWS ages. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWStheir NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS TrainingNEWS sessions for Justis, JustCite and NEWS J-Link are available at "The Chief Inspector's findings should alsoNEWS make usNEWS question NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS our offices or yours and can be requested through NEWS David atNEWS this country's increasingly harsh sentencing policies. What is NEWS NEWS NEWS NEWS NEWSforNEWS NEWS NEWSorNEWS NEWS david.finch@justis.com on + 44NEWS (0)20 7284 8117. NEWS NEWS the pointNEWS of locking up more and more prisoners periodsNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS stretching well into their old age? NEWS Continuing to hold prisoners For further information this story, please contact us on + 44 NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSon NEWS NEWS NEWS NEWS NEWS in custody when they are in their late eighties with Alzheimers is (0)20 7267 8989 NEWS or email NEWS press@justis.com. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS inhumane and does nothing to increase public safety NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS


22

the barrister

the barrister

Call to ban magistrates from sending minor offenders to jail

The costs of overusing custody

B

about the impact of the offences brought

The sentencing of serious offences has made

prison population had

to justice initiative; a focus on the prison

a large contribution to the rise in the prison

risen to 83,964. Last

population rather than current sentencing

population, mainly because of the length,

year’s report by Lord

practice; and a failure to consider what

rather than the number, of custodial sentences

the

Future: Proposals for

impact resorting to prison so frequently has

being imposed.

had on reconviction.

proportionate increases in the sentencing

in England and Wales suggests the prison

The largest numeric and

of indictable offences occurred in relation to

the Efficient and Sustainable Use of Custody

Offences brought to justice

theft and handling. The number sentenced to custody rose by nearly a third (from 15,637

population may well rise to 100,000 within the next six years and recommends building

The idea that prison numbers are increasing

in 1995 to 20,472 in 2005) even though

huge warehouse prisons – or Titans – to

because more offences are being brought to

the overall number sentenced by the courts

help to contain the extra numbers. This is a

justice is not supported by the statistics. The

for these offences declined from 116,078

surprising departure from the line he took for

numbers being sentenced fell successively

to 103,318 (RDS NOMS, 2007b). Given that

years earlier in Managing Offenders, Changing

from 1987 to 1995. The numbers being

the average length of sentences imposed for

Lives: A New Approach, when Carter’s team

sentenced in the succeeding years did not

theft and handling has dropped from 6.3 to

carefully analysed the reasons the prison

reach pre-1995 levels again until 2003

4.3 months over the same period, it could

population was rising and proposed a range

when the total was around 1.5 million.

even be true that those going to prison for

of measures designed to use sentences more

The numbers then increased in 2004 and

this offence may actually have committed less

effectively to assist in reducing reoffending

2005 but dropped to pre 2003 levels again

serious rather than more serious offences

and protecting the public. This change of

in 2006. In simple terms, the rise in the

than those sentenced to custody ten years

heart may reflect the fact that the measures

prison population began at the very point

earlier. Of course these cases do not add very

proposed by Carter, and largely accepted

the numbers being sentenced were declining

much to the prison population because they

by the government, have not brought about

most sharply; and the prison population is

involve such short sentences, but they do add

the seamless end-to-end management of

continuing to increase despite a recent dip in

very significantly to prison receptions and

offenders he expected. Nor have the savings

sentenced numbers.

the associated costs.

in prison places, which were needed to pay The lack of connection between the prison

The offences brought to justice initiative may

population and total numbers sentenced is

not have affected the number being sentenced

Anyone who questions whether we need to

not surprising given that most court cases

but it may explain why the proportion

be sending quite so many people to prison

involve

summary

of offenders with ten or more previous

risks being labelled soft on crime and being

offences. It is more reasonable to expect

convictions coming to court is increasing,

more concerned with the rights and needs

the prison population to rise if the number

while the proportion of first-time offenders

of offenders than the rights and needs of

of more serious (indictable and triable-

coming to court is stable.

victims.

That is why, while both political

either-way (TEW)) cases rises. However, the

cause is that the ‘usual suspects’ are being

parties are only too happy to say who

number of serious cases being sentenced

recycled through the system more quickly

should go to prison, neither are prepared

has been relatively static (varying between

leading them to develop longer records.

to say specifically who should not. We are

300,000-350,000) throughout most of the

This is the predictable – and possibly even

already living with the consequences of that

period over which the prison population has

intended – consequence of an objective

abnegation of responsibility, but the costs of

grown.

framed in terms of bringing more offences,

it are largely obscured by spurious claims

even been declining since 2003.

for the new arrangements been realised.

comparatively

trivial

The number of serious cases has

cannot be measured simply in terms of extra

for any worthwhile rehabilitative work to be

prison places; the extra reconvictions which

conducted.

have resulted also carry a cost.

statistical modelling is conducted to remove

In an age in which the financial cost of giving

There are no new easy or quick fixes for

the effect of differences in the case mix

life-saving drugs to cancer patients is regarded

constraining or reducing the size of the

each service is required to supervise. Recent

as a legitimate consideration, it is surprising

prison population. There are even fewer

analyses of ‘modelled’ data have been used

that so little public debate centres around

politically palatable ones. Acting immediately

to claim that the effectiveness with which

whether sending more people to prison

to limit magistrates’ powers to use custody

the Prison and Probation Services supervise

represents a cost-effective way of tacking

for

offenders is improving. While the causes of

crime and reducing re-offending. A recent

specifically discouraging them from using

the change cannot be known for certain, it is

analysis has assessed the financial value of

custody for theft and handling may not be

reasonable to assume that better supervision

the reductions in re-offending associated with

popular with sentencers. But those convicted

has played a part in the fall in reconviction

different interventions and the cost of such

of these relatively minor offences are surely

these

However,

interventions. It concluded that the savings

not the offenders the public have in mind

these modelled reconviction rates should

to the taxpayer of using a community-based

when they call for tougher sentencing, so

not be used when assessing the impact of

intervention rather than prison ranged from

this does seem like a worthwhile and viable

sentencing behaviour, as the effects they

just over £3,000 to about £88,000, depending

place to start.

strip out include changes in the apparent

on the nature of the community intervention.

solve prison overcrowding but it would slow

characteristics of offenders which may be a

When the calculation included the savings

down the rate at which it worsens and

consequence, rather than a cause, of changes

resulting from fewer victim costs, the savings

help to reduce reconviction rates. It would

in sentencing behaviour.

were between £16,000 and £202,000 per

also save money not only because prison

offender.

is an expensive option but because it is an

compare the impact of prison and probation,

y 25th July 2008, the

Securing

opportunity in prison or in the community

When reconviction results are used to

By Carol Hedderman, Professor of Criminology at the University of Leicester

Carter

23

The most likely

rather than more offenders, to justice.

analyses

demonstrate.

summary

offences

and

Such a move would not

ineffective response to less serious offending

While it is laudable that the Prison and Probation Services are being more effective

non-violent

Conclusion

with those they are sent by the courts, the bald fact is that, for most of the period that

The only connection efforts to bring more

our use of custody has been increasing,

offenders to justice has with the prison

reconviction rates on release have also been

population is that it has increased the

rising. Looking at raw (unmodelled) figures

proportion of offenders coming to court with

reveals that whereas 53% of those released

high numbers of previous convictions. The

between 1990 and 1994 were reconvicted

increased use of custody has been affected by

within two years, this had risen to 65% of

the sentencing of some serious offences but

those released between 2000 and 2004. The

the biggest change in sentencing behaviour

most obvious explanation for this increase

concerns the number and length of custodial

– given that there is no evidence that the

sentences for less serious property offences

courts are dealing with more or more serious

and cases which are too trivial (summary

cases - is that sentencers are employing

only) to be sent to the Crown Court.

custody less effectively now than they were in the early 1990s. Sending significantly

The fact that modelled reconviction rates

more minor offenders (e.g. those convicted of

show that the Prison Service is doing a better

theft and handling and ‘other non-motoring’

job is a testament to its hard work, despite

offences) to prison for short periods of time

increasing over-crowding. Raw reconviction

disrupts offenders’ lives, so that they lose

rates suggest that this is in the face of custody

employment and accommodation and contact

being used less effectively by the courts. The

with support networks, without providing an

cost of the change in sentencing behaviour

– as current reconviction rates demonstrate.


24

the barrister

25

the barrister

Legal globalization: investigating the effects of an “inexorable phenomenon”

law historically led the way, Winterton thinks

He sees the uniquely provider-neutral citator

summaries of cases from the Supreme Courts

there are now “more legal topics than existed

JustCite as key. Developed over the past

of EU member states; cases which specifically

before,” which inevitably leads to a widening

six years, he says that it’s more than a

interpret EU legislation and focus on areas

in international scope. “Almost every aspect

citator. “It’s a directory. It cross-references,

such as competition, consumer protection,

of human activity could become affected by

it shows how cases have been treated,

employment, environmental and IP law. If

Economic globalization is a truth universally acknowledged. But applied to the law, recognition of the phenomenon is less well-documented. If a general trend does exist, how is it affecting practice at the Bar and beyond?

globalization,” he adds.

where to find texts and, most importantly,

there are no domestic cases for litigators to

its foreign jurisdictional coverage is rising

base their arguments on, this service allows

He supports his view with the plausible

– we’ve recently added cases from Australia

them to “spread their nets,” he says.

observation that it’s not just the obvious

and Singapore, and we’re talking to others,”

trade-related areas of the law that are

though he won’t be drawn on whom. His

There could be a market for this: Samuel

changing; family law is becoming globalized.

main point is that although other countries’

tells me of a case from 2004 in which

“Children, divorce, marriage, wills… were

courts’ decisions are usually not binding

Lord Justice Bingham suggested that a set

generally conducted without reference to

elsewhere, JustCite will show where cases

of circumstances relating to a case he was

anything other than domestic law,” he says,

have been cited abroad, linking users with

presiding over “must have happened in

“but now there are often other jurisdictions

full-text reports (on the Justis library or

France or Germany.” Saying that their courts

involved”.

elsewhere), where the arguments laid out

would “indicate where justice might lie,” he

can be extremely useful for litigators here.

turned to counsel and gave them 24 hours to

By Alistair King of Justis Publishing Mention of it makes him extremely animated.

We should start with an attempt at a definition:

if he wins here. He thinks, therefore, that

what does “globalization of the law” mean?

understanding “interpretation of EU law in

And haven’t common law precedents been

other national courts would be useful”.

ow one of their directors,

bouncing back and forth across borders since

Though Beard’s work at the Bar itself is

he

the

Britain’s colonial days, while inter-state trade

focused on our courts, he points to law

company since 1999. His

agreements have existed for centuries? Well,

firms “with a diaspora of offices across the

primary stock in trade

yes. But this is something different, or at

world”. Accommodating major clients, they

is

full-text

least vastly expanded; something inextricably

will always consider the global dimension to

reports

linked

legal problems, he says.

N

has

been

searchable,

electronic

case

at

to

our

economic

and

political

from the ICLR and elsewhere, but he believes

globalization; and something in which bodies

the “it” in question – globalization of the law

are increasingly incorporating each other’s

This rings true for John Keffer. In 1998,

– is an inexorable phenomenon, sweeping

laws and collaborating at a level far deeper

following 15 years in practice in Houston,

across jurisdictions and significantly affecting

than before.

he joined multinational law firm King &

the way practitioners operate. “It seems like

Spalding, which counts the likes of Coca

a natural progression,” he says, adding that

Professor Geoffrey Samuel is an academic

Cola and Shell Oil on its books. “We go to

“in many fields it’s no bad thing for the

at the University of Kent. Notable for his

where there are clients,” he says. To that

world”.

research in comparative law, he has lectured

end he co-founded the London office five

extensively in globalization. He identifies

years ago, which he continues to manage.

It’s a bold stance from a man quick to point

several interpretations. “It can mean law

With London strategically placed for working

out his lack of legal training. But it seems

operating at a supranational level,” he says,

alongside colleagues in the firm’s Dubai, Abu

Jonathan Daymond is prepared to follow

“such as world trade and international

Dhabi and Riyadh offices, they collectively

this theory: for a number of years Justis

arbitration; and there are a number of

represent Middle East-based firms that do

Publishing has been expanding its coverage

transnational codes, such as those for airline

business in the Middle Eastern, European

and refining its technology in support.

passengers and the principles of contract

and American markets. “We’re very strong

law.” But, he adds, “there’s also the more

on Islamic Finance, as well as corporate and

So is he right? And, more to the point, what

fluid idea of American, European, common

energy practice,” says Keffer. “This practice

is he right about? “Globalization of the law”

law, French law… all having an influence

wouldn’t have existed before the globalization

is, after all, a term likely to mean quite

beyond the national state”.

of our economy,” he adds.

different things to quite different people. There’s a “globalization of learning, with UK

So are young lawyers being nurtured for the

is

and EU lawyers looking to the States and vice

opportunities that these shifts represent?

accurate, how has it happened? How have

versa,” says barrister Daniel Beard. “And

lawyers’ professional lives changed in recent

China and India are developing models from

Jules Winterton is associate director of

times? What are their thoughts on the trend?

the UK and EU,” he adds. Highly praised in

London University’s Institute of Advanced

Which practice areas are they commercially

The Legal 500, Beard has been a member

Legal Studies, where he has worked for 17

exploiting? And how should they adapt their

of Monckton Chambers in London for 10

years. He is also its chief librarian. With the

research in a discipline already governed by

years, where he specializes in such areas as

view that “the law is changing enormously

an information-gathering process that, at its

commercial, competition and EU law, all of

in scope and reach,” he compares the

worst, can be convoluted, esoteric and prone

which are becoming increasingly globalized.

situation today in legal education to that

Furthermore,

if

Daymond’s

analysis

to leaving plenty of stones unturned?

of 10 to 15 years ago, when, for example, So what’s going on elsewhere affects us here?

far fewer students from here and overseas

Examples cited to answer these questions

“Yes, and it has done for some time,” says

were involved in combined degrees that

were as diverse as the cross-section of

Beard, who is currently representing a rubber

award graduates with qualifications from

practitioners and academics whose views I

manufacturer in the High Courts. Accused

two jurisdictions and grant them exemptions

sought. But one thing is clear: Daymond is

of being part of a Europe-wide cartel, his

from certain professional qualifications.

onto something.

client could be affected by the verdict from a corresponding case running in Italy even

Suggesting that commercial and maritime

find out. Daunting, says Daymond, “unless

Beard extends the argument by bringing criminal law into the mix, a point backed

Are electronic avenues being explored by

up by an example from Chilean academic

those at the legal coal face?

you have Caselex”. But in conclusion, I think of Winterton’s

Arnulf Becker Lorca, who reminds me of Spain’s attempts a few years ago to extradite

Familiar with JustCite from his colleagues’

his countryman, the former dictator Augusto

use of it, Winterton says he can see how it’s

Pinochet, from Britain. Neither residing in

“amenable to proliferation.”

thoughts on the family. Derided at the time, could Rowan Williams’s speculation that Sharia would inevitably be

nor to be brought to a country in which his alleged crimes took place, Spain’s grounds

Beard says his generation does all its

incorporated into English family law actually

for attempting to try him were based on

searching through new media and he sees

be a logical extension of the trend? Daymond

the notion that “torture constitutes an

it as an essential part of the process. “The

certainly feels the archbishop’s comments

international crime,” which can be tried

more important it becomes to have overseas

“don’t look nearly so far-fetched now”. As

anywhere, according to Becker Lorca.

material, the more important it is to have

animated as ever, he of course sees this as an

electronic access,” he adds.

opportunity for lawyers.

Becker Lorca is now based at King’s College

And Keffer regularly uses full-text online case

Whether globalization of the law is indeed

London, which is a founding member of

reports to check contractual terms to “see

“no bad thing for the world” is a matter for a

a new international consortium of law

whether various court cases define them and

much longer article. But either way lawyers

schools. Opening this month, the Centre for

affect their meanings”.

will do well to take note of the developments

A

lecturer

in

public

international

law,

and do what they can to access all of the

Transnational Legal Studies, which includes

information.

institutions from civil and common law

At this point Daymond is keen to highlight

jurisdictions, is headquartered in London;

another type of case reporting that will

an institute set up, it seems, in sympathy

now,

international

I have been commissioned by this journal to

with Winterton’s analysis. It’s come about,

law as a practice area in its own right.

write a follow-up piece for the next issue.

says Becker Lorca, “so lawyers will have

“Through our partnership with Cambridge

Expanding on the jurisdictional dimension

knowledge of common and civil law [in

University Press,” he says, “the full texts of

of the debate, I shall elaborate on what

the codified, continental sense] systems.”

the International Law Reports, going back to

Daymond intriguingly describes as “a new

Endorsing

adds:

1919, will be made available electronically

product from a country whose laws will be

“Today all fields of legal knowledge are more

for the first time in November”. He adds that

increasingly important on the world stage”.

or less affected by globalization.”

although international law is often regarded

others’

comments,

he

finally,

be

digitized:

as a separate entity, it shouldn’t necessarily

Samples of full Justis and JustCite records

Word on Legal Street appears to vindicate

be. It’s his view that “it’s not inconceivable

can be viewed at www.justis.com/dssample

Daymond, who adds climate change, human

that precedent generated within international

and www.justcite.com/dssample.

rights and terrorism as areas in which

law in certain areas could become more

international alignment of laws will become

persuasive in domestic courts”. Searchable

increasingly necessary.

access to precedent, he says, is therefore

last year, Alistair King was a journalist for

important for all practitioners.

Building magazine. This followed several

But, as an information provider, his concern

years

is in the dissemination of all these cases,

Finally, my attention is drawn to Caselex, a

statutes and decisions.

new service which, according to Daymond, brings together for the first time English

Before joining Justis Publishing

at

various

academic

publishers,

including Routledge and Pickering & Chatto.


26

the barrister

the barrister

Is your chambers website a cobwebsite? Could Chambers’ website work harder? Research found that many Bar Home Pages were static and out-of-date. And many sets neglect e-marketing and the low-cost opportunities it offers. Gerald Newman, of LawComms.com explains how you can audit your website and use value-formoney ways to improve its effectiveness in supporting your set’s professional reputation. ARE YOU MISSING OPPORTUNITIES?

O

nline news and e-marketing are generally neglected by the Bar. For chambers with the motivation, there is therefore plenty of opportunity to take advantage of this gap in the market. You can start by carrying out a simple audit, asking some basic questions about your website.

HOW DO WEBSITE?

CLIENTS

RATE

YOUR

Any online development should be driven by clients’ needs. Statistics will be available from your website: an analysis will tell you much about how the site is being used, and occasionally comments are provided spontaneously by visitors. But if you are thinking seriously about your website, you should ask clients’ opinions informally or through a survey.

brochure-style information; they lacked even the simplest updates. One in five Bar websites lacked updates of any kind anywhere on the site.

Striking design is less important than good Home Page content. Having said that, most Bar websites are safe, bland and corporate in their look and feel. Could yours stand out more? Images can help. Law is a people business, where referrals depend on relationships of trust. Many chambers websites lack human pictures (other than in profiles) and these have an impersonal feel.

Some sets – 39 Essex Street, Took’s Court, or Matrix, for example – have adopted the format of a magazine cover for their Home Page. Headlines, picture stories, and quick summaries are a much more user-friendly way to help visitors find their way around than the static menus and lists that most sites rely on.

DO YOU MAXIMISE ADVANTAGE FROM ONLINE NEWS AND UPDATES?

Can would-be visitors find you? For many business websites, their ranking in Google search results is of vital commercial importance. But for barristers’ chambers, a search for their name is normally easy. But there may be other areas – for example, in international work or arbitration – where Chambers has has competitors outside the UK Bar, and where rankings in searches on key words might be of greater importance.

Publishing up-to-date news stories on the Home Page keeps a website looking fresh. This especially important for regular clients making repeat visits to the site. Online news also helps you demonstrate the achievements of the set’s members.

DOES YOUR HOME PAGE MAKE AN IMPACT?

“The news section is an excellent window on my set’s current work, reflecting our involvement in high profile cases…”, the senior clerk of one leading told me. “Our client contacts will probably look at our web site before calling the clerks or a barrister.”

Creating a powerful first impression with the Home Page is vital. To retain visitors, the Home Page needs to offer them interesting, relevant information straightaway. Publishing online news is an easy way to do this.

LawComms surveyed all 252 chambers websites in June 2008 and found that of their Home Pages, 52% had nothing but static

But as the LawComms survey showed, few sets take real advantage of these possibilities. 20% of barristers’ sites have no updates of any kind. Only about a quarter of news pages mentioned members’ cases. News items were mostly professional announcements, about new tenants or QC appointments, which were almost invariably in the “Chambers congratulates…” style and very rarely told

visitors anything useful about the individual’s experience or qualities. Another common mistake was the failure to update; two thirds had out-of-date items, more than a month old.

Members of Chambers, and clerks, have understandable concerns about online news and there are practical difficulties. But all of these can all be addressed:

“We do not have enough going on”, one set said. But the Patents Court listed 24 reported cases in the name of just one junior IP specialist at this set. Mentions need not be restricted to reported or even high-profile cases. It would be hard to imagine that any reasonably busy set could be short of cases to mention online.

“Many of our cases are very sensitive”: But many others will be in the public domain, and some will be reported in the media. Others even advisory matters - can be mentioned as anonymised case studies. Barristers are already happy to list cases in their online profiles.

“We don’t want to re-design our home page”: One set already had a news feature built into their home page design 2 years previously but it had remained unused and hidden; it was easy to activate. In another case, minor inexpensive technical changes allowed news headlines and summaries to be added to the existing Home Page with links to details elsewhere.

“No-one has the time to do this”: However, one senior clerk’s view was that “You have to undertake the same research anyway when you are preparing the Legal Directory submissions”. Member profiles can also be updated with the same material. The overall time commitment is likely to be just a couple of hours a month. And even this can delegated to an external agency such as LawComms.

“We already have sufficient work coming

into Chambers and do not need to promote ourselves”: The priority given to marketing is a question of judgment for each set, but many leading sets choose not to be complacent about their future, and to continue marketing themselves accordingly.

HOW EASILY CAN CLIENTS FIND COUNSEL TO MATCH THEIR NEEDS?

Information about barristers is at the heart of the purpose of the Chambers website. Listings and profiles of barristers ought therefore to be as accessible and easy-to-use as possible. Surprisingly, many sets do not cater effectively for this need.

Most websites simply feature “Members” as a tab on the Home Page menu bar. Since this is likely to be the information that most visitors want, it should be available without having to click to reach another page. Cloisters is an example of a set with a user-friendly search facility on the Home Page itself.

should be a page about each of your set’s specialisms – such as Doughty Street’s - with links from there to the relevant materials.

Many sets include a summary of their quality standards (Matrix), Equal Opportunities policy (2 Hare Court), or even their fees (Doughty Street). This can help underpin client relationships. The Bar emphasises its commitment to pro bono, but it is surprisingly unusual to find information about activities on Chambers websites.

Very few Bar websites try to engage interactively with online visitors. Are there creative ideas about how your site could achieve this?

Useability is an essential. Your content, however good, is useless if visitors cannot navigate around your site, quickly and intuitively, to find it.

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WHAT SHOULD YOU DO NEXT?

Writing up a dummy news page, for internal use only, provides the ideal basis for discussion about how online news might benefit Chambers. Using a website to spread information about case results and other developments provides a cost-effective easyto-use marketing tool that can enable your set to gain significant competitive advantage.

Perhaps you need to ask a specialist to conduct a more detailed and objective appraisal of your website. Many agencies – including LawComms – offer to do this free of charge.

If you have clear ideas about how to develop your website, discuss them with your current provider of web services to consider feasibility and cost. Alternatively, identify alternative suppliers and work up a Request for Proposals so that you can compare a range of different responses to your requirements.

DO YOUR OFFICE SYSTEMS PROVIDE THE RIGHT SUPPORT? Too many sets still list their members only in order of seniority. For most website visitors, listings in alphabetical order will be quicker to use. Lists by specialism also make it easier for clients to find counsel to match their needs.

DOES YOUR SITE CATER VISUALLY-IMPAIRED USERS?

Do staff have the training and time to keep the website looking lively and up-to-date? Does the website have systems that enable any content to be updated easily?

FOR

An overall strategy will ensure that best advantage is taken of the website so that online activities and the set’s overall marketing activity are fully integrated and complement one another. So ensuring that you have a forward plan that is actively used, updated, and monitored is a good place to start your website evaluation.

DO YOU HAVE AN E-MARKETING STRATEGY MAPPED OUT? While not necessarily a requirement of the Disability Discrimination Act, accessibility for this client group is strongly urged by the Disability Rights Commission, and is good business practice. Any website re-design or up-grade should address the need to meet accessibility standards for visually impaired users and others, at least to the minimum Level A of the World Wide Web Consortium’s Web Content Accessibility Guidelines. Cloisters is an example of a site offering accessibility options.

IS YOUR CONTENT AS GOOD AS IT COULD BE? IS IT INTERACTIVE? EASY TO NAVIGATE? Articles, seminar or conference papers and case reports demonstrate the set’s expertise. This material is already produced by members and can provide valuable content for online visitors. A user-registration system might be introduced to enable the set to capture contact information from those wishing to download material. For best results, there

© Gerald Newman A website, however good, has to wait for users to visit. Pro-active e-marketing can enhance the value of a website still further, and help attract increasing numbers of users. For example, circulating emails or letters, with links to a relevant material, to key professional clients or prospects, media contacts, and opinion-formers will help keep the set’s name in peoples’ minds, generate positive publicity, and bring visitors to the website.

E-marketing can also include search engine optimisation, obtaining listings on related third-party sites and online directories, submission of editorial material to other sites, paid-for online advertising, even use of textmessaging and social networking websites.

Your website is at its most effective if it is fully integrated with your marketing.

LawComms 18 Blandford Road Ealing, London W5 5RL 07798 604851 020 8567 1543

gerald.newman@LawComms.com www.LawComms.com


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the barrister

Titan Prisons Is there an alternative? The government’s plans for three new “titan” prisons - along with the unquestioning acceptance of the need to jail more people for longer - mark a disturbing watershed in penal policy in England and Wales. By Rob Allen, Director, International Centre for Prison Studies King’s College London

T

hree years ago the then home secretary, Charles Clarke, set out a vision for a network of small local community prisons where prisoners would be able to reintegrate into society through developing their relations with their friends and family. (Clarke 2005) We are now offered the prospect of largescale incarceration in the kind of institutions rarely seen in Western Europe. Rather than learn from Scandinavia, where custody, sparingly imposed, is served in small local establishments with services provided by mainstream health education and social agencies, we appear to be looking to the US or even South Africa for lessons in prison management. International experience does not support the development of the kind of 2,500 bed prisons for which sites are currently being sought in London, the West Midlands and the North West.. Although France built the 3,000-place Fleury-Merogis complex outside Paris in the sixties, its more recent building programme has created much smaller prisons. In Ontario, the so-called “super jail” - recently taken back into public hands after five years under privatisation - houses fewer than half of the population proposed for the titans. The largest prison in the UK – Wandsworthcurrently holds about 1500 . Lord Carter’s review of prisons which recommended the Titan concept acknowledges the operational challenges associated with large prisons - the possibility of disturbances, difficulties in meeting the needs of special groups and in recruiting and managing large numbers of staff. He fails to note the change this marks to the purpose of imprisonment - away from an approach that seeks to minimise the exclusionary aspects inherent in detention, and towards a model of exile in which offenders are warehoused in large numbers apart from society. While economies of scale may be possible in the provision of food, education or drug treatment, “super jails” will struggle to prepare their residents for return to the

various communities in which they live. The Social Exclusion Unit five years ago stressed the importance of effective action on reception and release in reducing the likelihood of reoffending. All prisons, it said, should be required to ensure that they have staff with the appropriate skills in place “to preserve support mechanisms ... in liaison with agencies outside the prison”. Developing such liaison will inevitably be more difficult in such large scale prisons, as will the experience of families trying to keep in regular contact. If Titans are not in the interests of prisoners or of the communities to which they will return, it is worth asking who will benefit from their construction. Five years ago, a review of prisons in Scotland noted that the view at senior operational level is that the optimum size for a prison is 700 places. The chief inspector for prisons thought this too high, suggesting the figure - less than a third of what is proposed for England - has much to do with considerations of what would be financially better for a private company running a prison. Before embarking on such a controversial and risky policy the government is undertaking a consultation of sorts about how to make the Titan prisons work best ; but a much more wide ranging inquiry is needed , not only into how best to accommodate prisoners but into the use of imprisonment and alternatives to it. The last 15 years have seen prison numbers rise more sharply in England and Wales than almost any other comparable countryNew Zealand is the exception. It is on top of this that the government has decided to expand the capacity of the prison system by a further 15% with the Conservatives pledging to match that and more. This planned expansion has been based on remarkably little public debate. Before the recess Lord Ramsbotham called in the House of Lords for a standing royal commission on prisons to generate ideas and provide some

independent scrutiny of policy proposals and the House of Commons Justice Committee is holding an inquiry into the effectiveness of criminal justice spending. By contrast, Lord Carter’s review “Securing the Future” on which government has based its policy looked very narrowly at the issue of supply of and demand for prison places concluding that demand was inexorably upward and that supply could be provided more cheaply among other ways through Titan prisons. The review is coming in for some belated criticism. The House of Commons Justice Committee report “Towards Effective Sentencing”, published in July found Carter’s review “deeply unimpressive” and was concerned “that this review was not evidence based and was a missed opportunity. It should have considered how to develop new ideas to address the problems with sentencing and provision of custodial and non-custodial facilities in England and Wales.” (Justice Committee 2008) A week earlier The Times newspaper published a letter from ten leading parliamentarians, including former Conservative Home Secretary Lord Hurd arguing that the decision to expand prison numbers was “taken by the Government without debate or the publication of any supporting evidence that other options had been considered and rejected. No arguments were produced to suggest that such a large prison population will make England and Wales a safer place to live in.” (Hurd 2008) July also saw the Rethinking Crime and Punishment initiative publish a manifesto based on the lessons from its seven years work which appeals to the Government to invest the £2.3 billion earmarked for building ‘Titan prisons’ in alternative punishments including more intensive probation supervision, increased availability of restorative justice, and improved dialogue between the providers of community supervision and sentencers. The Manifesto argues that strengthening the infrastructure of community supervision

could reduce the use of short terms of imprisonment as well as open up greater opportunities for courts safely to grant bail and the parole board to release prisoners serving long sentences (Rethinking Crime and Punishment 2008). It suggests too that measures should be developed outside prison for groups of offenders who fare particularly badly – women, children and young people and the mentally ill - a theme also given prominence in the Justice Committee report. To address shortfalls in community supervision, RCP is proposing that probation and other community organisations intensify their provision of services- for example through trackers who can provide close support to secure compliance, through the national development of RJ options and the strengthening of the intermediate estate- hostels, halfway houses and other measures both to meet the needs of and effectively supervise challenging people in the community. RCP is suggesting much more regular and thorough visits by sentencers to community based programmes for offenders with the opportunity for proper dialogue- based on the work piloted in Thames Valley, Cheshire and London. That work also suggests much greater use of reviews- progress courts as they are being called in Scotland. Currently limited to drug treatment cases and the community justice centres, there is undoubtedly scope for expanding the opportunities for courts to review the progress of offenders subject to community supervision of all kinds. The manifesto also calls for more systematic links with the public – along the lines of the Making Good initiative in the Thames Valley, which has created strong relationships between the Probation service on the one hand and local government, and civil society groups on the other. The manifesto does not go as far as recommending that offenders doing unpaid work should wear distinctive uniforms, but there is much else in Louise Casey’s recent report that resonates with RCP’s findings about the importance of engaging communities. (Cabinet Office 2008) RCP’s manifesto also suggests that the proposed sentencing commission, whatever form it eventually takes, should exercise a public education role. RCP’s second main proposition is that there are groups of people in prison who could be dealt with in other ways - women, children and the mentally ill. It calls for accelerated progress on the implementation of proposals made in Baroness Corston’s report on women offenders with the necessary funds made available in each region of the country

to develop credible alternatives to custody. The manifesto proposes too that in youth justice, the government sets an ambitious target for halving the numbers of young people in custody over five years. While the Youth Crime Action Plan published in July makes some references to the need to reduce the use of prison, there is a need for much greater investment than currently envisaged in intensive supervision schemes, professional fostering placements and family group conferencing. In respect of mentally disordered offenders who inappropriately end up in prison, RCP calls for a national roll out of the kind of link worker schemes developed by the Revolving Doors Agency which can address the needs of people with mental health problems in a way that reduces their offending and risk of imprisonment. The manifesto contains an indicative costing for these elements which in total comes to £2.3 billion over six years. This is exactly the capital sum which the government appears to have secured from the contingency reserve to build new prison places including three Titan prisons. RCP’s work represents an alternative agenda which could bring about better outcomes for offenders and their victims. Two objections are likely to be raised. First, what about the impact on the prison population? Will these proposals guarantee a reduced demand for places without which the penal system will lurch from crisis to crisis? It is true that those serving short sentences of 12 months or under represent only 12% of the sentenced prison population on any one day , although they account for a high proportion of receptions. . A reduction in the numbers receiving short sentences will thus have a relatively modest impact on the daily prison population But in addition to impacting on that segment of the population, the proposals could have other effects. Offering courts more options at the remand stage thus reducing the pre-trial population; providing wider options for the Parole Board when they are making release decisions; enhancing the compliance of offenders with community supervision and thus reversing the growing use of prison for breach; and perhaps most importantly by reducing reoffending rates and thus shrinking the pool of candidates for imprisonment. The second issue is that of public attitudes. RCP’s work on public attitudes has confirmed what a range of surveys have found, that the public is not as punitive as is often thought. True, asked a straight question three quarters will say sentences should be harsher. But given information about the reality of cases,

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and what community options entail, they actually rank prison rather low down the list of preferences. What is needed is the kind of political leadership exercised in Scotland where the government has accepted the findings of a comprehensive report by an independent Prison Commission which recommended cutting the prison population by a third over the next few years . There are occasional signs of interest in reducing prison numbers south of the border. A Conservative front bencher said in a debate on sentencing in June that “the rise in the number of prisoners from 60,000 to 83,000 should not be a point of pride. It should be a point of shame” It was only in 2002 that the White Paper Justice for all listed our record prison population then 71,000 as one of the elements that “is not working” and pledged that radical reforms will ensure that prison is reserved for those who cannot be dealt with in any other way. Since then, efforts to bring prison population rates down to Western European norms have consistently been trumped by the perceived demand for tough rhetoric and policies to match.. In mythology, the Titans were eventually defeated and consigned by Zeus to a deep gloomy pit in Hades. This is perhaps where the government’s prison policy belongs, to be replaced by a more comprehensive, constructive and cost- effective set of measures for dealing with offenders. Refs Cabinet Office (2008) Engaging Communities in Fighting Crime. London: Cabinet Office. Clarke C (2005) Where Next for Penal Policy? Speech to Prison Reform Trust http://press.homeoffice.gov.uk/Speeches/ sp-prison-reform-0905

Hurd, D. et al “A rational debate about new prisons” in The Times 17 July 2008.

Justice Committee (2008a) Towards Effective Sentencing. London: The Stationery Office.

Rethinking Crime and Punishment (2008) The Manifesto. London: Esmee Fairbairn Foundation.


NEWS ROUND UP

30

the barrister

the barrister

Playford’s Dancing Master In 2008 the Inner Temple celebrates the 400th anniversary of the grant of its Royal Charter. Playford and his Dancing Master will feature in the celebrations, for both his tunes and his dances (one of them is “Pegasus, or the Flying Horse”) bring to life a period of the Inn’s and the country’s history not far removed from that moment. By Master Sedley, Chairman of the Inner Temple Library Committee

A

lthough it has had

or so it is thought – in the Temple Church.

in recent years to

by a key setting out the dance symbols, and each score carries instructions.

sell some of its most valuable books,

non-legal Inner

its publishers. The books Playford published

To judge by the quality of his books, Playford

Temple library still has

during the Commonwealth show how little

must have been a demanding publisher. His

some eclectic delights on its shelves. Among

there is in the notion that Cromwell’s England

first printer was Thomas Harper, but by the

them is a fourth edition, published in 1670, of

was a psalm-singing cultural desert. Late in

time of the Inn’s edition The Dancing Master

John Playford’s The Dancing Master. It came

1650 the Stationers’ Company gave Playford

was being printed by William Godbid, with

(though

probably

the

The booksellers of 17th century London were

not

whose widow or daughter

directly) from Playford’s

Playford’s

bookshop by the porch

into partnership, finally

of the Temple Church.

taking over the printshop.

son

went

Playford himself, who had a printshop of his own in Playford

was

Little Britain, later in the

apprenticed in 1639, at

1650s

the relatively advanced

use of horizontal strokes

age of 16, to a stationer.

to

But music was his first

semiquavers, a device

love, and within three

which was picked up by

years he had rented, at

Dutch printers and has

join

introduced

quavers

the

and

£2 a year, the shop or booth by the church

its licence to publish The English Dancing

become a universal feature of music printing.

porch from which for the rest of his life he

Master, which he did the following year. The

Although Playford published the works of

sold not only music books but instruments

adjective “English” in the title, which had

many of the leading composers of his time, it

and medicaments (among them “Doctor

been dropped by the time of publication of the

is on The Dancing Master that his reputation

Turner’s dentifrices and Sir Kenelme Digby’s

second edition in 1653, was not fortuitous.

rests, alongside his Catch that Catch Can,

Sympathetical Powder”). Here musicians

Every acknowledged dancing master in the

a collection of popular rounds and catches

and music-lovers came, among them Samuel

country was French, and formal dancing

which he published in the following year. It

Pepys, who bought a copy of The Dancing

was an elite pastime. The point Playford

was The Dancing Master, however, which

Master in 1662, Henry Purcell and Dr Blow.

was setting out to make, and which his book

went through numerous editions, first in

Another of his customers, the poet laureate

memorably proved, was that England had its

the hands of his son, then (from 1709) of

Nahum Tate, wrote an elegy for Playford’s

own popular dances which, with simple-to-

his successor John Young, and then in the

funeral in December 1686, when he died in

follow notation, every fiddler could play and

hands of a variety of publishers. By 1728 it

his house in Arundel Street and was buried –

everyone could join in. The book is prefaced

was in its seventeenth edition. By 1850 it

31

had expanded to three volumes, and over a

By obtaining appointment in about 1653 as

“Pegasus, or the Flying Horse”) bring to life a

thousand dances had at one time or another

clerk to the Temple Church Playford became

period of the Inn’s and the country’s history

been included in it.

able, in addition to collecting burial fees and

not far removed from that moment.

rents, to function as the Inns’ bookbinder and to be secure in the tenure of his shop. A Playford’s Dancing Master is the source of a

serious musicologist, he wrote and published

Master Sedley is a Lord Justice of Appeal.

number of tunes which would otherwise have

a history of music which ran through ten

He is Chairman of the Library Committee.

been lost. Among them is that of The bonny

editions before his death. After the Restoration,

broom, a song which Beaumont and Fletcher

grumbling that “all solemn musick is much

early in the century had heard milkmaids

laid aside, being esteemed too heavy and dull

singing and which twentieth-century singers

for the light heels and brains of this nimble

have been able with Playford’s help to restore

and wanton age”, he republished some of his

as a complete song. It is also a ready source

own liturgical books.

of a number of popular melodies, including the Elizabethan tune Sellenger’s Round, a version of which is in the Fitzwilliam Virginal

In 2008 the Inner Temple celebrates the 400th

Book but which by the 18th century was

anniversary of the grant of its Royal Charter.

being specified on penny broadsides as the

It may be that Playford and his Dancing

melody for such texts as the ribald Fair Maid

Master will feature in the celebrations, for

of Islington.

both his tunes and his dances (one of them is


32

the barrister

In February 2002, a working group chaired by Sir Sydney p.1 Kentridge issued “Competition in Professions”, a report advocating, in certain circumstances, the direct instruction of barristers by the public. The paper considered recommendations made by the Office of Fair Trading, which had criticised existing limitations on the practicing capacity of barristers. In March 2002, a second working group chaired by Guy Mansfield QC issued a paper on the reforms needed to make the public access scheme workable. The public access scheme began operation in 2004, following the recommendations of the working group. It was felt that although the sources of barristers’ instruction should be widened, the areas of work available to them should not. This concept has underpinned the public access scheme since then. In 2006, the BSB set up its current working group, which I now chair, to look into the progress of the scheme since its creation. The question of whether there should be any change to the areas of work covered by the scheme is just one of the matters we are looking at.

Process of the review There are currently over 800 barristers offering public access services to a wide range of clients in different areas of practice: most as an addition to their standard practice, a few specialising solely in public access. The working group issued a preliminary consultation to all barristers who had registered with the Bar Council as intending to undertake public access work, seeking views on the operation of the scheme. Public access barristers were asked to supply copies of the consultation to their clients, in order to canvass their views. Further views were also sought from barristers attending public access training at the College of Law. The responses to the preliminary consultation highlighted a number of areas where there were concerns that the scope of the scheme needed to be widened or adapted. These concerns were reflected in the working group’s second consultation, issued in April 2008, which suggested a number of possible reforms and sought views on them from barristers, professional bodies and lay clients who had made use of the scheme. A number of different aspects of the public access scheme were considered by the consultation. These are dealt with in more detail below.

the barrister

• Requirements to take on public access work Public access may be undertaken by barristers of three years’ call: this is the length of time for which, under the Code, a barrister must work with a person able to provide suitable guidance in the early years of practice. The consultation queried whether this was necessary, or indeed whether the requirement should be raised to five years or even more. The consultation suggested keeping the requirement to three years, but queried whether public access could be taken up earlier in a barrister’s career if training were provided on the Bar Vocational Course. In order to take up public access work, barristers are provided with written guidance materials, and must also attend a one-day training course run by the College of Law. The course seeks to alert barristers to some of the duties they would need to take up in public access work that they would not encounter in more conventional practice: dealing with lay clients, discussing fees and storing documents and paperwork that would usually be kept by a solicitor. Our consultation revealed that barristers generally liked the course, although many pointed to the Money Laundering Regulations as an area where further training was required. The working group has proposed that further guidance on money laundering and additional information on the limits of the scheme should be provided to barristers in the written guidance.

• Range of work In accordance with the suggestions made in the Kentridge report, public access was not made available in family, immigration and most criminal cases. It was felt that these were areas where the assistance of a professional client was most desirable and the potential for the case to require a solicitor was greatest. The consultation asked whether the range of available work should be widened to include all aspects of law. Responses varied: some felt that making public access available in family work would lessen the financial impact of using the courts on families, and more than one lay client has highlighted the capacity of public access to reduce costs in a case for the family as a whole. Immigration work was originally left out of the scheme at the request of the Immigration

Services Commissioner, who felt that such cases would involve considerable correspondence and paperwork, which risked pushing barristers into the role of solicitors in an area where the lay client was likely to find it particularly difficult to help run the case owing to the complexity of the proceedings and a possible inexperience in speaking English. The prohibition on immigration work highlights a particular discrepancy in the scheme: public access is not available for immigration work, whilst less experienced non-barristers are able to appear at immigration tribunals as immigration consultants without a professional client to provide instructions. This has been criticised by some respondents to the consultations as penalising barristers by not permitting them to take on the work directly when they are actually better qualified to do so than nonbarristers who are permitted to do so. In answer to a detailed proposal made by one set of chambers regarding the use of public access in criminal work in the Magistrates’ Court, the working group has suggested that minor criminal work could be made available under the public access scheme where a custodial sentence is not an available sentencing option. This would permit a barrister to take on direct access a wide range of statutory offences. Such work would constitute a fairly dramatic new step for the public access Bar. Views on this proposal were sought from the profession in the consultation, and it is clear that any widening of the range of work that is currently available will have to be taken with care.

• Correspondence between parties in public access cases In order for a public access case to run smoothly, both the barrister and lay client must be aware that in public access work, the barrister does not take on the roles that barrister and solicitor would occupy in a conventionally-instructed case. The barrister’s role is limited, especially as far as correspondence and communication with the other side and the Court is concerned. The barrister is able to draft letters for the client to send, for instance, but may not send them in the barrister’s own name or on chambers’ headed paper. Self-employed barristers are unable to conduct litigation under paragraph 401(b)(ii) of the Code of Conduct: however, the case of Agassi [2005] ECWA Civ 1507 found that correspondence between the

parties did not constitute litigation as such, thus permitting a degree of correspondence relating to case preparation and administrative matters between the parties in the case whilst continuing to rule out activities that would be classed as litigation. This places public access barristers in a situation where their powers go beyond those of the non-public access Bar, but stops short of enabling them to conduct the case without assistance from the lay client. The consultation asked whether the Bar’s own restrictions on correspondence should be lifted. Barristers have traditionally been prohibited from entering into correspondence on the grounds that they lack the resources to do this kind of work and are not trained to undertake it. A number of respondents, lay clients in particular, found this artificial and unnecessary: under the existing rules, a barrister could manage the correspondence in the case in all respects other than in name. Responses to the consultations distinguished between correspondence among the parties and the formal conduct of the case, such as the issuing of papers to the Court. Almost all of the responses were in favour of enhancing the public access scheme: none wanted it to be ended or to have additional limitations. Some suggested that reform should be approached with care: in general, the Bar was more cautious than lay clients about widening the remit of the scheme. As a result, the BSB working group has proposed that barristers should be permitted to undertake this work, provided that: a) they have the necessary resources to do so properly; b) they have insurance that covers all the work to be done; and c) no client money, securities or other property is held by the barrister.

• Publicity and information for lay clients Because of the greater role taken up by the lay client in a public access case, the conduct of a case can be greatly influenced by the lay client’s behaviour. Under the scheme, some functions of the case which would usually be carried out by a solicitor must be done by the lay client rather than by the barrister. Clearly it is essential that lay clients are made fully aware of their responsibilities in the case, and

those of the barrister, if it is to be conducted effectively. Guidance is provided for lay clients when they appoint a public access barrister. This seeks to explain what the barrister can do under the scheme, and to set out the roles of each of the parties in the case. A number of comments from lay clients and barristers suggested that the guidance needs to be clarified and to varying extents rewritten. Barristers have also suggested that the written guidance they receive when they start to accept public access work be improved. Experience suggests that the scheme currently works best where the lay client has sufficient experience and resources to help the case run smoothly: for instance, in medium-tolarge firms with previous experience of using lawyers, perhaps with their own in-house legal advisors who can prepare the case before passing it to the barrister. However, if the capacity of barristers to engage in correspondence is widened, less experience will be needed for clients of the scheme, as barristers could deal with more aspects of the case, potentially making the public access scheme better suited to a wider range of clients. It remains to be determined whether it is in the public interest to broaden the scope of the scheme in this way. It was generally felt that there should be greater advertising of the public access scheme. Comments from barristers and lay clients alike suggested that there was insufficient awareness of the scheme’s existence among the public, let alone knowledge of what it could do. A general feeling was expressed that the scheme lacked visibility – not enough clients knew that it existed - and even where it was recognised as an option, its usefulness was restricted by a lack of understanding of how it could be used and where it would help the public most. At present, the scheme is publicised on the Bar Council’s website and through the Public Access Bar Association: the responses indicated that wider publicity would be in the public interest and would make the scheme more of a viable alternative to using the services of a solicitor.

Conclusion Overall, it appears that the public access scheme has so far been a success. To judge from the consultation responses, many of the complaints and issues that have been raised regarding the working of the scheme could be resolved by broadening its scope, both in terms of the range of work covered and the

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powers granted to the barrister to conduct the case. However, this in itself has the potential to create new problems: how wide-ranging should the scheme be, and should it allow barristers to move closer to the kind of work that solicitors do? Furthermore, is it actually in the wider public interest that the public should be given increased capacity for direct access to barristers in this way? For example, there may well be circumstances in which it might support the interests of the client and the proper administration of justice more for an instructing solicitor also to be involved in the case than a barrister alone. Any reform of the public access scheme will need to consider any new powers in the light of the BSB’s work on alternative business structures, to be introduced by the Legal Services Act 2007. The Legal Services Act promises to introduce a range of new business structures to the Bar, initially permitting legal disciplinary practices and, subsequently, a wider range of alternative business structures under the new Legal Services Board. Although the exact details of the implementation of the Legal Services Act are still to be finalised, there is possibility for such new forms of work to affect and overlap with the public access scheme. It seems to the working group that the future of the public access scheme may well involve some form of widening its scope. However, any decision will have to be taken with considerable care to make sure that the service provided is both accessible and of high quality.

The group will report its findings to the BSB by the end of the year, and updates can be found on the BSB’s website at www.barstandardsboard.org.uk.

Christopher Gibson QC is a member of the Bar Standards Board’s Standards Committee and Chair of its Working Group on Public Access.


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facts and figures of plans and dreams

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Together Women - breaking the cycle of crime By Vera Baird QC MP

B

aroness Corston’s report on women in the criminal justice system made clear that custody is damaging rather than effective for most women offenders. A Smart Justice poll this year found that 85% of people agree there should be more community punishments and less custody for women. Nobody doubts that violent women must be incarcerated but it is now well known that most of the female prison population are not dangerous. That’s why I recently launched a new pilot scheme aimed at women who have committed low level crimes, steering them away from prison.

At least half of the current female prison population has experienced domestic violence and a third have suffered sexual abuse, twice as many as in the general population. 70% have addiction problems either with drugs or alcohol and 80% have mental health problems, often the consequences of traumatic abuse. As the Sentencing Advisory Panel’s current consultation document on the principles of sentencing points out, women offenders tend to have complex needs, with addiction and past trauma often interwoven with each other. Twice as many women prisoners as men were sole carers for their children and 80% of women in custody have dependent children aged under 18. They are overwhelmingly in custody for non-violent, non-dangerous offences.

Nothing is changed by the short sentences which are typically imposed - 80% of them are less than six months in duration. Little can be achieved in such a short time. In effect they are warehoused. Many lose their homes; many families are broken up. They leave prison with the same problems but with more disrupted lives.

In August, as a small part of the government’s response to Corston, I launched a new Conditional Caution, to be piloted by the Together Women Projects in Leeds, Bradford and Liverpool. This is perhaps not by

definition a direct alternative to immediate imprisonment, though it may fit that niche sometimes, especially since far more women than men are currently sent to prison for first offences. Its main purpose is likely to be to “head off at the pass” women at the outset of a life of court appearances and custody.

Conditional Cautions, introduced in the Criminal Justice Act 2003, are speedy and flexible as a way of dealing with low level crime outside the court process. They are not intended to diminish the courts’ jurisdiction. They focus on offences for which the court outcome might be a fine or a discharge and which neither require nor merit the attention of highly trained Magistrates. Instead they can require the offender make an apology to victims, engage in some small work in the community to make amends and / or attend a rehabilitative programme: whatever may be required. The offender must face up to his or her offending and might have a better tailored disposal than a court can dispense, bearing in mind that their resources are needed for more serious criminality.

The Together Women Projects were started in 2005 with government funding of £9.15m. They offer a ‘one stop shop’ to provide individualised support packages both for women whose vulnerabilities have caused them to commit crime and for those who have never been in trouble. That duality helps to avoid stigma from attending such a centre, though our pilot is, of course, for women in trouble.

The central requirement of the caution in our pilot will be to attend a needs assessment, which will take one or more visits depending on the circumstances of the offender. This will identify the factors that are likely to be contributing to her criminality. She will then be encouraged to access the range of services that can help her. They can range from anxiety management and long term counselling to skills training in basic English and maths, cooking or computing. Although it will not be a requirement of the caution

that a woman continues to go to the centre after the needs assessment to take advantage of the help on offer, we – and TWP workers - are confident that the majority will, given their tailored nature and the quality of caring services available.

At the launch on Friday August 22 women clients of Leeds TWP talked impressively of the change to their lives that the centre had brought about. The principle theme was that their self esteem had been restored as they tackled their problems. Low self esteem is a common consequence of abuse. The Leeds TWP which I visited (I will visit all three centres in the pilot) feels very safe and welcoming and the people are friendly and supportive. There is a crèche and a laundry so that women struggling to challenge their offending behaviour do not get distracted by domestic pressures – they can manage them all within the one stop shop. There is also a kitchen, where women can learn elements of nutrition and how to cook.

We will be fully evaluating the six-month pilot, looking at which women are offered the caution, how many comply with the condition, who takes up the further services and what impact there is on the propensity to re-offend. The results of the pilot will feed into the prospects of extending this kind of conditional cautions, not just to other women offenders but potentially to others whose vulnerabilities are the root of their offending behaviour.

For this pilot to work it will require not only commitment by the police and prosecutors in West Yorkshire, who have been most receptive so far, but the all round support of the criminal justice agencies. At the launch, it was tremendous to see magistrates, the probation service, the court service, the Law Society, some defence solicitors and the Legal Services Commission all expressing positive views of the proposal. I hope that with that influence in our corner, we can persuade the wider community too, to be positive about this pilot scheme.

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