ESSENTIAL READING FOR BARRISTERS
1 st O ctober 2008 – 21 st D ecember 2008
E st . 1999
MICHAELMAS TERM ISSUE
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
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
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
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
FLBA membership, particularly those in
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
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
By the time you read this the Family Bar will
12/08). That paper proposed cuts of £13m over
Access to Family Justice
Family Barrister Scheme’ (Consultation Paper CP
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: firstname.lastname@example.org publishers: media management corporation ltd publishing director: derek payne
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Bespoke tax advice for barristers Chancery Lane, London
Are you sure you’re not missing information you need in court?
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
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,
June this year reflects
the concern which was considered in R v
the long-held common
Davis was that these protective measures
defendant has a right
Some things are just
© LexisNexis 2008. 0808-041/TW/KB/0808
The Criminal Evidence (Witness Anonymity)
Act 2008, which received Royal Assent in
flurry of legislative activity. The introduction
to peruse a key plank of their client’s
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.
The defendant’s legal
Now that we
July, aimed to put in place a framework
can reflect on the Act and consider it with
anonymity orders could
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
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.
The Bar Council was also concerned that there
all from one source.
a grudge from falsely accusing defendants
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seen increased use of protection measures,
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effective that rigorous
to know and see his accusers, prompted a
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This measure, which
However, recent years have
outside of a statutory context for the vulnerable,
are potential dangers if a criminal conviction
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
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
commonplace. This trend should be arrested,
it is one
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
The Act will be
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.
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 yearâ€™s Queenâ€™s Speech on 3 December
right legislative framework, and that the
societyâ€™s behalf; they are the unsung heroes
of the hour, putting in long hours for little
to evaluate the lessons learned from Julyâ€™s
solicitors, conducting the case are able
thanks both as prosecutors as well as defence
This new Bill will
to carry out their duties, and exercise
advocates. As we look to the future, with
give â€˜vulnerable and intimidated witnesses,
professional judgment, within a system where
a new parliamentary session in sight â€“ 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)
â€“ 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
processâ€™. 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
England and Wales, is to ensure that
and oral submissions.
There will not have been much time
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
Prosecution and the Defence perspective.
consequent upon this, nor other recent
pieces of legislation.
The Bar Handbook 2008
NEW TITLE The Bar Handbook is a practical handbook bringing together, for the first time, details and guidance relating to a barristerâ€™s professional obligations, parameters of work,
Product Code: BH ISBN: 9781405728058 Price: ÂŁ60.00 (approx) Publication Date: May 2008
and solicitors are expected to â€œcarry onâ€?
permitted charging arrangements, ability to get paid, getting redress when not paid, tax and VAT liabilities, insurance, practice planning and good practice advice, and relevant statute and regulatory references, for all barristers be they self-employed or sole practitioners, employed, publicly or privately funded. Both the current regulatory landscape and the practicalities of practising at the Bar are changing rapidly,
Order today and SAVE 15%
Barristers are public servants who live in the
whether it be in relation to legal aid, future business models for chambers, opening up access to the Bar, the formation of the Bar Standards Board or the reforms being made by the Legal Services Act 2007. This Handbook seeks to clarify the important distinction between The Bar Councilâ€™s representative and
communities they serve, and who take their
Investment in the legal aid system must
go hand in hand with legislation and
seriously. I represent a profession which is
procedural rules, which ensure that cases
hard-working and committed to the highest
standards of advocacy. Our criminal justice
protected; and that the justice system works
s !LL MATERIAL ORDERED AND CONTEXTUALISED BY THE AUTHORS WITH A STRUCTURE FOLLOWING THE CHRONOLOGY OF A CAREER AT THE "AR
system, of which we are as a nation so
in the public interest. What use can optimal
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rightly proud, rests in part, on the shoulders
s )NVALUABLE PROFESSIONAL CONDUCT GUIDANCE n A COLLECTIVE CORPUS OF MATERIAL NOT AVAILABLE ELSEWHERE IN SUCH AN ACCESSIBLE FORM
of barristers who work long hours on behalf
of those they represent. Their clients are
are deterred from such public service by
often among societyâ€™s most vulnerable. The
fearless advocate representing the accused
public service and private practice?
in the face of the State is, in our adversarial
what does it say as a society about our values
system, a sine qua non of a fair and just
if the interests of those accused of a crime
system of justice.
by the state are set apart from those who
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between the rewards of
can afford private representation A fair trial is at the heart of a civilised society,
demands of the exchequer?
and the Bar Council has always said that barristers must be properly qualified, trained
Witness anonymity has caught the mediaâ€™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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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.
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.
The country’s most powerful profession
These days you don’t have to go very far
opens its doors for the first time in its
into a newspaper or on a news website
most Prime Ministers. It
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.
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
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
and training required for entry, the difficulties
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
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
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
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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
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,
research to look at this issue in 2002. The
appreciate that the supply of barristers cannot
both in relation to case management and in
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
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.
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
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:
‘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
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.
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
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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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
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
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
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,
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
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
are ordinary men and women who, by virtue
remarkably onerous and competitive process
of having worked exceptionally hard during
of obtaining a tenancy.
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
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
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
of barristers from diverse backgrounds and
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
HOW WHITE IS WHITE?
is well known that first impressions last and more often than not the first thing that people notice about you is your smile. A beautiful smile can do more to enhance your appearance than nearly anything else. With the ever increasing desire to look younger and more confident – tooth whitening is one of the easiest ways in which to achieve this. There is a plethora of tooth whitening products on the market, from the professional tooth whitening kits from the dentist to whitening strips in the supermarkets. WHY THE DENTIST? As many have discovered, the products bought over the counter are not very effective with poor fitting trays and weak products. Often the results are disappointing. Many people experience gum irritation and increased sensitivity by not using professional products.The dental practice is the safest place to have your teeth whitened.
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.
At Smile Design @ Woodford House Dental Practice we can offer you the opportunity to have a whiter smile for just £199 for a professional home tooth whitening kit before the 31st December 2008. Gift Vouchers are also available. Woodford House Dental Practice
020 8504 2704
A new Framework for Plea Negotiation in Fraud Cases By Stephen Hockman QC, Head of 6 Pump Court Chambers
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)  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-
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)  EWCA Crimp 3233,
cation, compensation, disqualification or
from charging more offences than are neces-
 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-
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
had concluded that there were clear advan-
munity penalties, fines, compensation, costs,
v Blackburn  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  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
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
 EWCA Crim 888, there was no formal
Prosecution Service in the CPS, and serious
independence is expressly preserved.
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
The appeal was therefore dismissed.
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
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
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-
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
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-
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
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.
lorry then approaches the scene and failed to
The defence experts were asked to look at ex-
In the current environment you should not
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
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
the pathologist, namely a clump of head hair
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
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.
VX - THE BARRISTER MARKETING PLATFORM
to ensure that the
The Role Of Defence Experts
instructed by the police to only examine the
RAPE? A case involving an allega-
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
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 whole case is then peer reviewed by an-
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.
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
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
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
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-
Commercialisation of any service brings with
If only to ensure a
Contact us for a FREE demonstration on how to manage websites, email marketing and print materials Call 020 7928 6250 www.vuture.co.uk
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
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
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
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
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
modern legal market as it becomes more
the legal profession are about take hold.
approach. Contemporary online directories
By Dr. Yuri Rapoport, Founder, Prime Law Brokers (Australia) the world’s first legal broking service
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
and advances in information technology on
professional profiles available online.
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.
technology, a difference
the ‘brave new world of legal services’ is
good professional track-records, to win back
representing clients against “YYY Insurance
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
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
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
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
future of legal services is emerging amongst
While at one end of the legal community complacent lawyers maintain that modern
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
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
the desired result.
efficiency of online
to welcome change.
directly with consumers. However, the growing
likely to challenge this typical lack of ‘service
By registering their track-records with online
This formula has been proven through the
professionals, however, is idling somewhere
selling’ among barristers. Savvy consumers,
legal directories, barristers will be able to
experience of law brokers (legal referral
c o m p a r i s o n
in the middle; and by burying their heads in
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
may unwittingly be exposing themselves to a
are set to challenge traditional methods used
intermediaries is that the highest level of client
proverbial ‘kick in the behind’.
to select barristers for given cases. Whereas,
individuals to assess costs and conditions of
satisfaction arises when consumer interests
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),
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
As a rule, law brokers
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
been denied opportunity to independently
barristers’ professional profiles.
to the individual barrister to pull their head
lawyers experienced in dealing with a specific
out of the sand and recognise that online
party will know how that party and their legal
consider uploading the
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
are proactive barristers who consider that
the legal community. Although, some lawyers
Internet-based services will mean losing
flexibility in negotiations etc. This amounts
nothing, and potentially, gaining a lot.
to invaluable knowledge in assessing whether
a case is worth pursuing, and provides a
solid foundation for building lawyer-client
herding instincts can be hazardous to their
may oppose being measured on professional
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
position and argue that barristers, unlike
in dealing with a given opponent; and only
seek out new clients.
services) in Australia over the past decade.
public appetite for on-demand interaction is
out herd. L U X U RY M E N S W E A R , S U I T S , L I N E N S H I R T S VISIT US AT 21 JERMYN STREET
NEAREST TUBE: PICC ADILLY CIRCUS
C A LL + 4 4 ( 0 ) 2 0 7439 2512 TO ORDER
w w w. h e r b i e - f ro g g . c o. u k
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 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
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 email@example.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 firstname.lastname@example.org. 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
Call to ban magistrates from sending minor offenders to jail
The costs of overusing custody
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
Future: Proposals for
impact resorting to prison so frequently has
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
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
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.
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
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.
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
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
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
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
is an expensive option but because it is an
compare the impact of prison and probation,
y 25th July 2008, the
opportunity in prison or in the community
When reconviction results are used to
By Carol Hedderman, Professor of Criminology at the University of Leicester
The most likely
rather than more offenders, to justice.
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
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.
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
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
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
least vastly expanded; something inextricably
will always consider the global dimension to
legal problems, he says.
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
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
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
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
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.
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
and do what they can to access all of the
Transnational Legal Studies, which includes
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
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
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
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
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
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
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
including Routledge and Pickering & Chatto.
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?
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?
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.
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?
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
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
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,
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
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
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,
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
The booksellers of 17th century London were
whose widow or daughter
directly) from Playford’s
bookshop by the porch
into partnership, finally
of the Temple Church.
taking over the printshop.
Playford himself, who had a printshop of his own in Playford
Little Britain, later in the
apprenticed in 1639, at
the relatively advanced
use of horizontal strokes
age of 16, to a stationer.
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
£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
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
both his tunes and his dances (one of them is
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.
• 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  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
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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NEWS ROUND UP
facts and figures of plans and dreams
Together Women - breaking the cycle of crime By Vera Baird QC MP
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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