Barrister Magazine

the barrister

#39

ESSENTIAL READING FOR BARRISTERS

12 th J anuary 2009 - 19 th M arch 2009

E st . 1999

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HILARY TERM ISSUE

It is important that government and ministers understand and respect the vital independence of our judiciary In

The Constitution Committee

July

2007

ISSN 1468-926X

Features

3

Committee published its report on Relations

which I chair, was formed in 2001 in response to

between the executive,

a recommendation by the Royal Commission on the Reform of the House of Lords. It is unusual among committees in that it performs a dual role: scrutinising legislation and conducting longer policy inquiries into

the

judiciary

Parliament

and

constitutional

matters of constitutional importance.

relationships between Relations between the executive, the judiciary and

By Paul Marsh, President, Law Society of England & Wales

which

analysed the evolving

LORD GOODLAD Chairman of the House of Lords Constitution Committee

12

Legal globalization: an expanding picture While the picture might be expanding, is a uniformity of legal practices spreading, thereby contracting the diversity of law worldwide? Building on the last issue of The Barrister, we continue our investigation into legal globalization and consider in particular the effect different jurisdictions are having on each other.

the three arms of the state and made a

Parliament1

Fears over the future of the court service and concern over justice budget cuts The reports in October 2008 of cutbacks at the Ministry of Justice are the latest measures taken by the Government to reduce the expenditure on the justice system as a whole. These are not the first budget cuts which are likely to have an impact on the workings of the justice system in England and Wales.

the

The House of Lords Select Committee on the Constitution

price £3.00

p.32

By Alistair King of Justis Publishing

The Wood Review:Tough Love for the BVC The Panel established by the BSB to review the

up for an extremely expensive course; content

BVC and chaired by Derek Wood QC published

that was insufficiently challenging, realistic and

its report in July 2008, and all stakeholders –

specialised to meet the needs of modern practice;

regulators providers, practitioners, prospective

teaching standards that were too low; and a pass

students and those advising them – are now

level which was lower than any professionally

getting to grips with its recommendations.

recognisable threshold of competence, even for

16

Enhancing the Participation of Children in Family Proceedings The issue of whether or not children should have the opportunity to play a greater part in proceedings where decisions will be made which will affect the rest of their lives is becoming the subject of increasing debate.

By Nicholas Crichton, District Judge, sitting at the Inner London Family Proceedings Court

pupillage.

News

These were comprehensive, in some cases radical, and certainly reflected the range and

For providers this must have been depressing.

apparent seriousness of allegations to which the

It might also have been somewhat perplexing,

review had been addressed. As listed in Chapter

because over the last ten years the BVC has been

5, they read rather like a bill of indictment: the

subject to almost constant external scrutiny.

recruitment of too many students (numbers had grown by 30% between 2003/4 and 2007/8);

Its current content was prescribed in some

for too few pupillages (a 5% reduction over the

detail, via the so-called “Golden Book”,

same period); students who were unaware of

by the Elias Working Party as recently as

the risks they were running when they signed

2000. Since then, major aspects of the

www.haysmacintyre.com

p.20 Study into local legal advice announced p.21 Consultations on payment of Crown Court defence costs editor: nigel simmonds 0870 766 2715 email: info@barristermagazine.com publishers: media management corporation ltd publishing director: derek payne

p.10

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

Bespoke tax advice for barristers Chancery Lane, London

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03

Fears over the future of the court service and concern over justice budget cuts

By Paul Marsh, President, Law Society of England & Wales

T

he reports in October 2008

barristers in the system – albeit on the basis

in accordance with what the LSC can

of cutbacks at the Ministry

of arrangements that should be cost neutral

realistically do in practice, not what it would

of Justice are the latest

– it would be politically very difficult for the

like to do in an ideal world. This applies with

measures

the

Ministry now to make cuts elsewhere that

equal force to the design of the scheme for

Government to reduce the

impact on solicitors or clients. In the light

quality assurance for advocates.

expenditure on the justice

of the unequivocal assurance from Justice

taken

by

system as a whole.

Secretary, Jack Straw, that this settlement

It will hopefully involve the devolution of

was affordable, any cuts to the system that

much greater powers to the lawyers and

These are not the first budget cuts which are

impacted upon the solicitors profession

advisors to take the steps professionally

likely to have an impact on the workings of

would be viewed as a significant breach of

necessary on a case. At present, firms have

the justice system in England and Wales.

faith by the Ministry.

to undergo a degree of micromanagement on

The courts and legal aid system have been

The cuts in staff at the Legal Services

even if the LSC did have the resources to do

at crisis point for some time, so there is no

Commission (LSC) do give some cause for

it effectively.

scope for further cuts without cutting into

concern to barristers as well as solicitors.

vital public services.

Practitioners frequently complain about delay

In terms of proportionality of cost to result,

in their dealings with the Commission, and it

and in terms of the delay caused in delivering

The Court Service itself has suffered from

would be very damaging if the effect of these

the service to clients, this level of involvement

years of underinvestment, and we badly need

cuts was to increase delays.

in individual cases must end. The LSC’s job is

individual cases that would be hard to defend

sustained investment in court staff and their

to manage the system, not to manage every

supporting infrastructure. Job cuts and the

The delays in responding to case plans in very

abandonment of longer-term programmes

high cost family cases are exorbitant. During

to modernise court infrastructure are not

the credit crunch, it is more vital than ever

Even totemic projects such as CLACs and

the right way forward for court users or the

that bills are processed and paid promptly.

CLANs and Best Value Tendering need to be

wider public interest. A modern, efficient

It would not be acceptable if these matters

carefully considered. They require huge costs

court system is essential to the well being of

were addressed at the cost of introducing

in order to deliver rather speculative benefits.

the economy as a whole.

new delays in parts of the system that are

With the current budgetary pressures, are

currently reasonably efficient.

these really more important than maintaining

Legal Aid

case within it.

the current day to day service to clients?

Having said that, this could represent an

There are ongoing concerns about the

opportunity for the profession. The LSC

I have been extolling to the profession the

possible impact on the legal aid budget of

needs to recognise the limits on what it can

concept of the Business of Law – a central

the budgetary pressures that have been

reasonably achieve, and to tailor its activity

theme of my presidency - encouraging law

revealed. We already know that the Carter

accordingly. This may require a reduction

firms to run efficiently and follow sound

reforms have led to the Government making

in the information it demands from firms,

business principles. Many have risen to

significant savings as against the previous

to reflect what it genuinely has the scope

that challenge. Perhaps the LSC needs very

trend lines for legal aid expenditure, and we

to process. There is no point in demanding

speedily to adopt the same principles.

have received repeated assurances that the

huge amounts of information that are never

Ministry believes that legal aid expenditure is

processed and don’t add value to the planning

now sufficiently under control that no further

and/or accountability of the system.

cuts or restructuring will be required beyond

Technology More than 10 years after Lord Woolf, in his

those proposals already signposted, such as

It may involve radical downsizing of its

report on access to civil justice, expressed

for Crown Court means testing, private law

audit policy. In theory, since a peer review

his 'conviction that sensible investment in

family litigation and family advocacy.

result lasts three years, every firm should

appropriate technology is fundamental to the

be reviewed no less often than once during

future of our civil justice system' the possible

Moreover, in the light of the Ministry’s

the life of each contract. In practice, the

abandonment of the Court Service's flagship

willingness to reach a deal with QCs that

LSC is able to achieve only a fraction of this

proposals to introduce electronic filing and

increases the payments to the highest paid

target. The system needs to be designed

document management (EFDM) systems to

04

the barrister

the civil and family courts is depressing. It is

We are extremely concerned about the

also short-sighted.

potential for waste in the virtual courts pilot,

The

pace

of

technological

change

is

a project led by the Office for Criminal Justice

The Law Society, and I am sure many other

Reform (OCJR).

representative bodies in the legal profession,

accelerating and Lord Woolf's expectations for technology in the courts now seem as retrospectively modest as they are unfulfilled.

It is easy to forget, to take just one example, that back in 1996 a good Pentium PC with an 800 Mb disc and running Windows 95 would have cost a law firm around ÂŁ2,200! The

Conclusion

are ready to engage in constructive dialogue Planned for implementation in early 2009, it will require the kitting-out of 16 custody suites in London and Kent with video conferencing equipment to enable defendants to 'appear' at their first hearing in court.

with the Ministry on the on-going budget cuts and state of our justice system. I made this clear in my letter to the Justice Secretary when news of the latest cut backs emerged.

you be the judge.

The government must draw on the expertise of the profession and others with day-to-day

world has changed. The courts have barely

knowledge of the working of the courts. We

changed. In essence they are still hugely

There are enormous practical difficulties

must all be united in defending the justice

paper-based and relatively inefficient.

and additional costs that this new way of

system.

conducting court hearings, which will be If the government is not prepared to make

extended to include out-of-hours work, will

Paul Marsh, President, Law Society of

significant investment in the technological

cause defence lawyers, which have only just

England & Wales

infrastructure

adjusted to the post-Carter world of fixed fee

and

back-office

processes

of the courts now, the position can only get worse.

with no additional travel and waiting.

In the first place, a cutback in such essential infrastructure

cases to be dealt with in the one court centre,

appears

inconsistent

with

a proclaimed policy of fiscal stimulus to

The Law Society also has concerns about the quality of the justice that will be delivered

ameliorate recession. Secondly, the court

remotely, and we very much doubt that the

system will suffer further relative decline

supposed benefits - said to be savings arising

both in relation to alternative jurisdictions

from fewer defendants failing to appear and

and in relation to our rising expectations. The

reduced police transport costs - will make the

government knows this.

very conservative estimate of ÂŁ8.7 million, as set out in the OCJR's business case,

Civil Justice 2000 was subtitled 'A vision of

worthwhile.

the Civil Justice System in the Information Age'. It argued that 'for too long Government departments have lagged behind the private sector in the innovative and effective use of new technology'. It identified the impact of the internet on business and suggested that it was necessary to 'look ahead in order to plan

While

it

is

acknowledged

that

video

technology is used to good effect in dealing with administrative and appeal hearings, here we are concerned with a person's first appearance after arrest, when issues

and develop the future share of the justice

such as release on bail are considered, and,

system in the information age'. I agree. At a

increasingly, pleas are required to be entered,

time when solicitors are embracing a range of

often when the person is not in possession of

new technologies to compete as effective and

proper disclosure and may not have received

efficient businesses in the delivery of services

any, or sufficient, legal advice.

to their clients we need the government to match its earlier vision and rhetoric with

We would politely suggest that before spending

action. Now is not the time to cut much

large amounts of money on this costly

needed investment in the courts.

Virtual Courts Virtual courts, one initiative where the courts have looked to implement new technology,

We already know that JustCite‘s unique technology makes it the most advanced and flexible legal research tool on the market.

experiment, the fate of the 2002 Extended Court Sitting Hours Pilot, otherwise known as Night Courts, should be considered, and the virtual courts pilot dropped, or, possibly, confined to rural areas where there may well

unfortunately risks lowering the quality of

be advantages to all involved in the criminal

justice in our courts.

justice system, not least the defendant.

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06

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Moves in mediation: confidentiality, the EU Directive and regulation

By Tony Allen, Solicitor, Mediator and Director of CEDR and Professor Karl Mackie, Barrister, Mediator and Chief Executive of CEDR

C

heart of the mediation process. Because parties feel safe from commercial

While we may already just about meet the Directive’s requirements on quality, education, and enforceability of mediated outcomes, and while we may feel resistant

•

No one wants there to be confusion about

to achieve even this limited requirement.

what contractual confidentiality and “without

But do we need more, and is the current

prejudice” privilege mean in relation to

Another key issue facing the mediation

law clear enough? I suggest that we need

mediation.

It will unsettle what is a very

community is how it should be regulated.

to establish a higher standard and greater

useful process. On the whole there has been

There is a pressure felt amongst the mediation

no difficulty about it, but harder cases are

community to set some standards in place in

emerging which call for clarification of the

order to discourage “cowboys” leaping on to

law. To what extent, and from whom, can a

a new market bandwagon, and to encourage

court receive evidence to support or defeat

good practice rather than bad practices so as

a claim by a party that their lawyer under-

to create a way for buyers of services to know

or over-settled a case in mediation? Can a

that they are dealing with someone of at least

third party claimant get access to mediated

reasonable quality.

clarity.

Any party’s statements, admissions

and settlement proposals made during a mediation; •

Any

been invited to consider what happened at a mediation, something which is unsettling for mediators who are used to assuring

mediator

proposal

for

The regulatory debate

provider as a witness. So we need legislation

Recently judges have either felt able or

onfidentiality is at the

07

parties and their advisers at the outset

exposure or assumptions

to suspending limitation periods during

settlement and any party’s expression of

of weakness drawn from

mediation (mainly because we fear satellite

willingness to accept it; and

mediation is off the record and not available

signals of readiness to compromise, they

litigation about when a mediation starts and

•

to a judge. As a matter of practice, I now

even if affected by the level of settlement (such

Although there are limited instances of real

attend mediations, parties talk directly to

ends), we cannot escape consideration of the

the purpose of a mediation.

qualify this by saying that it is unavailable

as a sub-contractor affected by settlement

problems with this flexible, non-binding

each other in a way that litigation makes

reform of mediation confidentiality. Article 7

process, the Civil Mediation Council (CMC) is

virtually impossible, they disclose secret

(headed Confidentiality of mediation) reads:

positions to the mediator, they indicate

Any document prepared solely for

of the process that what happens at the

settlement discussions if the parties object,

unless you all consent to tell the judge what

between the client and main contractor, or an

The earlier draft went further by providing

happened, reflecting that the parties have

earlier lawyer being sued for the difference

aiming to set both basic standards of practice

that any such evidence could not be ordered

a joint, but not a several, right to waive

between the settlement figure and some

requirements for individual mediators and

willingness to move from strongly expressed

1. Given that mediation is intended to

by a court to be given by anyone else who

“without prejudice” privilege.

In several

objectively higher appropriate level)? How

litigation positions, they make offers to

take place in a manner which respects

had attended the mediation (remembering

mediation organisations which register with

recent cases this seems to be what happened.

each other and discuss alternative ways of

confidentiality, Member States shall ensure

that the mediator is absolutely barred

precisely may a party, who settles on the

it. Both groups will have to (a) confirm that

For instance in both Chantry Vellacott v

mending business relationships.

Insurers

that, unless the parties agree otherwise,

anyway) and if offered should be treated as

basis of a material misrepresentation made

they meet the standards set, and (b) will

Convergence Group and Malmesbury v Strutt

and defendants apologise and empathise

neither mediators nor those involved in the

inadmissible, in both proceedings related to

during a mediation or subject to a threat,

& Parker, the parties told the judge what they

have to commit to follow a Code of Good

with injured claimants and often move huge

administration of the mediation process

the mediated dispute and also other litigation.

unstitch that settlement? Is it possible to sue

had offered each other during the mediation,

Practice, and (c) to be subject to the CMC

a negligent mediator when this would involve

independent public complaints scheme.

revealing what the mediator did behind the

is a three-part system of supervision that,

veil of confidentiality? Is there a distinction

while being light touch, aims to ensure that

between contractual confidentiality – which

reasonable

normally is no bar to court investigation –

followed by anyone claiming to operate in a

and “without prejudice” privilege, and if so

professional way. The CMC will encourage

how do they interact?

courts and public sector bodies particularly,

distances from their on-the-record positions to achieve risk-moderated solutions.

None

of this would happen if the parties did not

shall be compelled to give evidence in civil and commercial judicial proceedings or arbitration regarding information arising out

It could only be admitted to the extent required to implement or enforce a mediated settlement agreement; for overriding public

enabling the judge to find that one of them had been unreasonable in his stance.

On

the other hand, in Reed Executive v Reed

feel safe in doing so. There is no doubt that

of or in connection with a mediation process,

policy reasons; or where the mediator and

this is a process which works and delivers

except:

the parties agree. It also provided that

results.

(a) where this is necessary for overriding

otherwise admissible evidence would not be

considerations of public policy of the Member

rendered inadmissible simply because it was

Waste Management v Baines Wilson, the

But we need to be clear both about the

State concerned, in particular when required

used in a mediation.

judge would not permit solicitor defendants

present situation in law and whether it needs

to ensure the protection of the best interests

amendment.

of children or to prevent harm to the physical

in the requirement of the EC Directive on

Business , the court would not go behind without

prejudice

correspondence

when

considering a costs award, and in Cumbria

minimum

requirements

It

are

to ensure that they use registered mediators

material

Such problems have already emerged for

or organisations, if they are inviting tenders

So it not only gave absolute protection to

generated at a previous mediation to settle a

consideration in the US and Australia, in

or psychological integrity of a person; or

mediators from being compelled to give

for services or otherwise using mediators or

dispute between the claimants and DEFRA,

particular, and some fine distinctions are

mediation that the UK legislates by 2011

(b) where disclosure of the content of the

evidence, but also restricted the content

organisations delivering mediation services.

because DEFRA declined to waive privilege

being drawn. The Uniform Mediation Act in

to

agreement

is

of evidence that anyone could give about

In addition to commercial mediation, this

or their contractual right to confidentiality

the US suggests hearings in camera to sort

standards it sets for cross-border mediation.

necessary in order to implement or enforce

what happened at the mediation in any later

scheme will be open to workplace providers

of the process. In Brown v Rice and Patel,

With

that agreement.

proceedings, a far cry from the qualified

out such issues before mediation material

the judge held that he was entitled to

of mediation, a development stimulated by

protection to mediators given as the only

enters the public domain by judicial decision.

look at what happened at a mediation to

recent employment legislation reform.

The imperative to do so lies

implement

huge

the

relatively

pressure

on

the

minimum

legislative

resulting

from

mediation

timetable, mediation is unlikely to get much

to

have

access

to

mediation

Parliamentary time, especially if the topic

This is a very watered-down version of

component of mediation confidentiality in the

decide whether settlement terms had been

is limited to the minority activity of cross-

what appeared in the previous version of

Directive’s final form.

agreed, even though one party and indeed

border mediation.

The changes we make

the Directive. Mediators and providers were

to meet the Directive’s requirements almost

previously placed under an absolute bar over

Of course we have no such statutory

though it was clear that no written settlement

certainly will be applicable to mediation

giving evidence about:

protection for mediators at all in English

agreement had been produced, as required

generally.

•

law, merely a contractual undertaking by the

by the mediation agreement.

Party invitations or willingness to

participate in a mediation;

the mediation provider objected, and even

parties not to call the mediator or mediation

This may be a sound approach here too, perhaps invoking the power of the court under CPR 39 to order private hearings.

The debate sparked by the EC Directive’s rather limited aspirations is one we now need to develop for these wider reasons.

08

the barrister

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Fusion: A threat to independence in Criminal Justice

and highly trained Bar. That is not to say that

student loans to repay, and their already

Parliament, that those who have power over

judges chosen from solicitors or the employed

hopelessly inadequate legal-aid fees, halved

us do not always wish to have contentious

Bar are not capable of independence, of

by their overheads of clerks fees, chambers

matters brought into the open for public

course they are: but life teaches us that it

rent, pensions, insurances, travel costs,

discussion. Certainly those of our masters

hotels, books, and equipment, are driven

who are enthusiastic for “fusion”, but who

away from the self-employed Bar to work

have never mentioned the word in their

as full-time employees, the British criminal

dealings over the legal-aid scheme, would

justice system, and its reputation in the world

prefer to keep their silence.

may be difficult to live down a life-time of

With legal-aid fees plummeting, the Crown Prosecution Service and defence solicitors using more and more employed “in-house” advocates instead of independent barristers, with judges refusing to allocate serious cases to Queens Counsel, and the morale of the independent criminal Bar at an alltime low because so many are not even earning a living, Sir Ivan Lawrence QC answers those who think that the resulting, and seemingly inevitable, moves towards “fusion”, (barristers and solicitors becoming a single category of lawyer), will be good for the criminal justice system.

T

obedience to a superior’s wishes.

It is surely clear that these many advantages

of

our

present

dual

profession of the law have immense value – not just for the integrity and efficiency

of

the

criminal

justice

system, but also for the important

o begin with, the case

someone else’s case: and adjournments due

that they are not equipped to perform. They

perception of it as being fair, by those

for “fusion” has nothing

to the unavailability of the advocate are very

have to undergo continuing legal education.

who have to use it and submit to its

to do with the quality of

expensive to the system and harmful to the

They are ceaselessly monitored by judges,

judgements.

criminal justice: it is about

representation and standing of the firm.

instructing solicitors and their colleagues.

money. Yet the idea that

The public impression, carefully fostered by

Thirdly, “in-house” barristers employed by

So, fifthly, one very important advantage of

considerable saving of money to the tax-

a solicitor’s firm (or even by a government

the dual profession is that everyone charged

payer, is ridiculous. Solicitors, who have

organisation) to carry out advocacy alone,

with crime, however lowly his condition, can

higher overheads, charge far higher hourly

sometimes

The

have access to the finest defenders practising

rates: indeed they employ barristers in the

employer requires him (or her) to do a certain

at the Bar. He does not have to be represented

for the publicly-funded Bar. And if more

magistrates courts because it is cheaper for

amount of work in a certain way within a

at court by a member of the solicitors firm:

them than having to appear themselves.

certain time as a dedicated fee-earner, and

he can select from the ranks of available

and more young barristers, with their high STEP081104 Advocacy ad 180x125.qxd

Furthermore, barristers who necessarily pay

having in mind the loyalty to his firm (and

counsel at large. A fused profession would

their own overheads and pensions would,

his job), the barrister has to comply. The

hardly be able to avail itself of that degree

if they joined as employees the Crown

self-employed barrister, on the other hand,

of choice.

Prosecution Service or any other government

owes allegiance to his client and to the court:

legal organisations, have them paid at the

he owes no professional allegiance to an

Sixthly, in the real legal world of increasing

taxpayer’s expense - plus health provision

employer telling him what action would be

volumes of paper-work and of the appeal

and annual holidays with pay!

in the best interests of the firm, nor does

court’s relentless changes to complicated law,

another

problem.

barristers are driven into accepting employed

All the more reason, for there to be a

status for the sake of their economic security,

public debate – and for that to start

the situation will be even worse.

immediately. Before the independence which is the glory of the British

It is quite obvious that the public, the

criminal justice system completely

government, members of Parliament and the

disappears.

some of the media, is that barristers are all “fat cats” with their snouts in the trough.

Nothing could be further from the truth,

futures, have little idea of how much would be lost by “fusion”. That is because there has been no public debate: we just seem to be drifting very quickly in that direction.

I can say, with the experience of 23 years in 24/11/08

09:19

Page 1

www.step.org/advocacy

he have to concern himself with whether

the judges, in order to conduct their cases

Secondly, the assumption that, having both a

his employer is making enough money or

as speedily as possible, have to rely on both

solicitor to prepare a case and a barrister to

has available the required resources. His

the experience and the integrity of the Bar.

present it, unnecessarily doubles the work

independence and commitment to his client,

Inexperienced in-house part-time advocates

and therefore the cost of criminal trials, is

is of paramount importance to the integrity of

inevitably slow the administration of justice

also nonsensical. Two jobs would still have

our unique system of justice.

and add to its expense. There is already

to be done by two people, whether they are

for independence, will suffer. If more senior

civil service, who between them guide our

“fusion” would result in a

face

09

plenty of anecdotal evidence that all is not

solicitors or barristers. Complicated cases

Fourthly, you would not want your family

well with criminal trials where the accused

involving a number of witnesses, cannot be

doctor, or another doctor in the same general

is represented by an inexperienced solicitor

both prepared and presented at the same

medical practice, to carry out your brain

advocate.

time by one person. The former requires

surgery, and you would want an independent

investigation, tracing of witnesses, taking

consultant, skilled through experience in

Seventhly,

of statements, and getting them and their

his chosen field of work, to advise on the

a reputation over the years for being

exhibits to court: the latter requires learning

prognosis of a complicated illness: the self-

independently-minded and not beholden in

and marshalling the facts, being up to date on

employed barrister similarly provides the

any way to the wishes of its paymaster, the

the law and planning and delivering effective

independent expertise. Like surgeons and

State. Much of that tradition of independence

advocacy. Furthermore, a solicitor running

medical consultants, barristers are trained

stems from the fact that the higher judiciary

a business cannot suddenly drop work that

specialists particularly skilled at performing

has always been drawn – and is still mostly

he is doing to run off to court to present

their tasks. They are not allowed to take work

drawn- from members of the independent

our

judiciary

has

earned

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11

course have been reviewed by no

•

The rationale for the course remains

programme for the Bar; and with the

most especially on the junior bar, and thus the

markedly from independent to employed

students and practising barristers) as much

fewer than four working parties,

sound. Wood reaffirms that its “sole function

profession’s responsibilities to ensure the

availability of tenancies and pupillages. These

practice.

reassurance as to is standards and fitness for

each

eminent

and purpose…..is to introduce prospective

widest possible access and diversity.

judge, practitioner or academic: Bell (2005);

barristers to the practical knowledge and

Neuberger (2007); Wilson (2008) and finally

skills they will need to provide a high quality

It was completed in a remarkably quick time

Wood. The standards and quality of all BVCs

professional service to their future clients”.

and this despite its having included a specially

have, moreover, been monitored frequently,

It therefore not only rejects the idea that the

via detailed annual reports from providers,

p.1

chaired

by

an

will come from a number of directions: the

purpose as they could reasonably expect.

Carter reforms (and the further restrictions

In these circumstances, it seems almost

on public expenditure, which are inevitable

inevitable that in the not-too-far-distant

commissioned survey among students taking

from 2010 or so onwards); the Legal Services

future the Bar will once again have to

course ought necessarily to be accredited

the BVC. All stakeholders were thus spared

Act, and the general economic climate.

review its “vocational stage” training, and

Richard de Friend

and by Bar Council (now BSB) appointed

towards Masters level degrees, but warns

the blight, analysis paralysis and consultation

perhaps even to consider whether a separate

Chair Academic Board

external examiners and panels.

that, where particular providers decide that

constipation which afflicted the Legal Practice

vocational stage for barristers and solicitors

Senior Academic Registrar

it will do so, this “should not detract from

Course over the seven or so years that it took

According to Wood, though, there remained …

(its) essential character as a practical training

the Law Society to complete the Training

is any longer justifiable.

Director College of Law Bloomsbury

“a gulf of misunderstanding….. between the

course for the profession”.

Framework Review.

practising Bar and the BVC. The impression

•

persists among many practitioners that the

fit for purpose (though it recommends the

BVC is flawed in most or all of the ways described (above)”

Solicitors

and

caseworkers)

others

could

well

(including undertake

CPS an

increasing proportion of advocacy in the lower courts, while an increasing proportion

In the meantime, however, Wood has provided

It has therefore strengthened the BSB’s claim

of qualified barristers could be working

a clear, sound route map for the BVC’s further

introduction of a new compulsory module on

to be an effective and independent regulator,

from “Legal Disciplinary Partnerships” or

development; has (probably) enabled it to a

Resolution of Disputes out of Court and that

- something which will almost certainly be

“Alternative Business Structures” and the

period of relative (and much needed) stability;

Professional Ethics and Conduct should be

of great benefit to the Bar after the Legal

Faced with all this Wood’s approach was

profession’s centre of gravity could shift

separately taught and assessed).

and has given key stakeholders (most notably

Services Authority starts work on 1 January

robust, businesslike and fair, and its outcome

•

2009.

could best be characterised as “tough love”.

resources are satisfactory •

The content of the course is largely

The quality of teaching and other

threshold

On the other hand, though, there are, of

On the “tough” side are its recommendations

should remain at a 2(ii) degree. However this

course, limits to what a review of this kind,

that:

has to be set in the context of the new aptitude

and at this stage in the history of the BVC and

a

test, and the removal of any BSB discretion to

the Bar itself, could possibly have achieved.

challenging aptitude test, covering analytical

allow students who have not obtained a 2(ii)

and critical reasoning and fluency in written

to take the course.

•

The

BSB

should

introduce

The

academic

entry

Firstly, Wood notes that “(w)e have the

and spoken English, which all those wanting

impression that the profession has become

to take the course (to be re-styled as the “Bar

Taken as a whole it is a formidable

disengaged from the course which trains its

Professional Training Course”) from 2010

achievement and a great credit to the working

recruits….In truth the course should belong

onwards will have to pass in order to qualify

group which conducted the review and the

to the profession as much as it belongs to the

for entry.

small BSB team which supported it.

providers. If practitioners were more willing

•

The “knowledge areas” should be

to take responsibility for it they would, we

tested by a combination of multiple choice

It manages to distinguish between concerns

suggest, be more satisfied with it and there

and “short answer” tests: the former set and

which

serious;

would be fewer complaints”. Some of the

marked by the BSB; the latter set by the BSB

and those which are based on prejudice,

review’s key recommendations anticipate

but marked by the providers

misguided aspiration, or hearsay; or which

and will require a significant level of active

•

simply reflect the “gulf of misunderstanding”

support from the practising bar. This cannot

noted above

be guaranteed, and it remains to be seen to

The pass mark for these tests

should be raised to 65 •

are

real,

provable

and

Those who fail these tests (or any

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other “summative” assessment) should be

Its recommendations are commensurately

allowed only one re-take.

measured, sensible and convincing. They are

Secondly, there can be little doubt that over

consistent with both the proper educational

the next few years there will be severe

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12

the barrister

the barrister

Legal globalization: an expanding picture While the picture might be expanding, is a uniformity of legal practices spreading, thereby contracting the diversity of law worldwide? Building on the last issue of The Barrister, we continue our investigation into legal globalization and consider in particular the effect different jurisdictions are having on each other.

By Alistair King of Justis Publishing

L

eaving a slight, almost imperceptible but presumably deliberate comic pause in the phrase “dreadlocks and their… liking of cannabis,” Lord Bingham described just two of the many aspects of multiculturalism and multi-nationalism that have challenged but often enriched British law and its evolution over the decades and centuries.

In this case it was Rastafarianism but, as he went on to illustrate in his keynote address at November’s Bar Conference, there are numerous examples from our long and sometimes inglorious history, from 1290’s edict to Jews that they should “change or go home” to twentieth-century debates on whether Sikh men should be exempt from crash helmet laws and workplace uniform regulations.

Like the English language itself, English law has evolved and – to an increasing extent, the meaning of which I hope will become clear – devolved. Diverging away from other nations’ legal systems in the Middle Ages, it then put itself about in the Eighteenth and Nineteenth Centuries as its British masters set upon their attempt to colonize the planet. Other European colonial powers were no different.

So has their influence effectively brought about a new convergence of laws and legal practices? And what’s the state of play in a Twenty-first Century dominated by the threats and opportunities presented by emerging economies?

Bordering on agreement?

In the last issue of this journal we looked at the globalization of the law from a practice area point of view. Establishing the germs of a consensus in the academic and professional community, we showed how different areas of commercial law, and even family and criminal law, were influencing practitioners’ work across the globe. Though we won’t depart from further consideration of those different areas of work, in this issue we will also expand on the jurisdictional dimension of the story.

We investigate, among other things, how global trade might have made it inevitable

that laws come together; how the internet has influenced the process; if some legal systems are insurmountably incompatible; and we continue to consider how the phenomenon is affecting people’s work, their research and the type of material they need to access.

An LPC graduate with experience in practice, Rory Campbell has worked in Justis Publishing’s editorial department since 2001.

Now its manager, he overseas the detailed and discerning process of putting raw law reports and legislation through the electronic mill.

Ensuring that they are intuitively searchable, cross-referenced, indexed and compatible with expected legal terminology, his early days were focused on the law reports of the constituent parts of the UK. Despite significant jurisdictional expansion at the company, both in its provision of full-text case reports and in its development of the provider-neutral JustCite citator, UK cases remain an important part of Campbell’s job.

What’s changed, he says, is that in the past four or five years he’s seen a “dramatic and tangible increase” in the number of foreign cases that are being cited in our courts. The internet, he tentatively suggests, might even be the cause of this increase, not just the solution to accessing this material.

When in Rome The World Wide Web, it has to be said, had less impact on the propagation of Roman law at the time. But in recognition of its historical significance, we should have a quick look at this ancient jurisdiction.

A specialist in comparative legal history and Roman law, Andrew Lewis is a professor at University College London. Though his institution subscribes to them, Justis and JustCite – which go back to 1163 – sadly cannot boast case law from the First Century AD, the era we discuss. But, perhaps surprisingly, with statutes being “few and far between,” some of the methods by which the remarkably sophisticated Roman legal system operated bore some resemblance to our own. Though case law precedent was not authoritative, jurist advice – like common law decisions – was used to build up the law.

Lewis highlights the variety of officials that

would have presided in court. Each with a different level of authority and powers of enforcement, the areas of law they dealt with and the representatives they gave audience to are analogous to today – an example Lewis cites is that of a merchant supplying corn from Africa to Rome and the associated legal wrangling. Containing the fullest statement of the law, “the codification of Justinian in the Sixth Century preserved the writings of earlier jurists,” says Lewis, while reports survive from provinces such as Egypt. But, inevitably, much of it has been lost.

So what have the Romans ever done for us?

“On the continent the whole structure and language of private law is deeply permeated with Roman ideas,” says Lewis. “Though it’s been less influenced than other European systems, Roman law has influenced English law too, particularly the law of contract,” he adds.

How does the British Empire compare in its lasting effect on the world?

Never the twain shall meet?

Isam Salah is an American lawyer. A partner at multinational law firm King & Spalding, he operates jointly in the company’s New York and Dubai offices and is head of its Islamic Finance practice. Many of his transactions involve enabling his Middle Eastern clients to adhere to their Sharia principles, while operating in an essentially Western legal setup. Local laws operate in countries such as the UAE, Saudi Arabia and Kuwait, Salah says, but these have been influenced over the years by the likes of Ancient Egypt, Napoleon and, of course, the British. And it’s the British – or rather English – system that Salah says has become the “law of choice,” at least in the commercial world where parties can effectively choose which jurisdiction’s contract laws to use.

But what of the legal compatibility of Sharia and Western law? Well, they’re not quite as mutually exclusive as some tabloid leader writers would have us believe. Putting aside criminal law, where one must consider not just how crimes are treated but what’s actually classed as a crime in the first place, commercial law can be adapted quite easily.

A basic tenet of Sharia is that one can neither

pay nor receive interest. This would appear to preclude strict Muslims from obtaining mortgages. And this is the case. However, contracts that are effectively the same as mortgages can be drawn up. Though “substantively different,” Salah explains that they are economically equivalent, even though some of the burden of risk is assumed by the “lender”, who buys a commercial property, for example, and then leases it to the buyer for a period until they’ve paid back an appropriate amount to acquire full ownership.

Without doubt big differences still stand but the trend – if slow – is one of moving towards a gradual compromise.

The application of international court decisions Salah’s company now subscribes to the International Law Reports Online, which Justis Publishing launched in November. The only publication in the world wholly devoted to the regular and systematic reporting in English of decisions of the international courts, these fully searchable reports stretch back to 1919.

Covering all significant cases of public international law and dealing with such topics as treaties, war, terrorism and refugees, they are crucial for litigators practising in the international courts.

However, rulings from these courts are also creeping into numerous countries’ national courts as persuasive precedent – a point not lost on Mark Muller QC. A senior barrister at JustCite-subscribing Garden Court Chambers in London, Muller was on the five-year-long “Access to Justice in Afghanistan Project”.

For his unpaid work on this he, and the rest of the four-person team, won the recent Bar Pro Bono Awards, presented by our man Bingham following his aforementioned speech.

Muller explains that under the UK’s Terrorism Act (2000), it’s very easy to ascribe charges of terrorism to the activities of any number of pressure groups around the world.

Preparation for such cases, he says, requires much consideration of comparative and international law. Muller allows that tensions can arise as British courts are often loath to accept international law. However, the “arguments are being raised, even if they’re not [necessarily] accepted.”

Time will tell how many decisions are followed at a national level. Given the global political and economic upheavals we’re going through, my hunch is that it will be a significant proportion. Proof, perhaps, will be offered by JustCite, which from later this year will index and cross-reference the International Law Reports against national cases and journal articles from an expanding

range of jurisdictions, currently including England, Scotland, Ireland, Australia, Canada and Singapore.

Of course in the international courts themselves there’s no debate on their admissibility.

Professor David J. Bederman lectures in public international law at Emory University Law School in Atlanta. “I mix teaching with advising in private,” he says, and he is “often called upon for the Appellate Bar and US Supreme Court.” It was while litigating at the latter on the issue of foreign sovereignty immunity that he successfully cited a case from the International Law Reports.

But here’s the rub: this was before their digitization, so Bederman had to rely on the hard copies. “I didn’t begrudge going through them book by book, index by index, because we won the case,” he says, “but I’ll sure be glad in the future that you can do intelligent Boolean searches and get the same results.”

Now, of course, he can.

So why should a law firm subscribe? “Because they could save an associate 27 hours in a case where it matters” is Bederman’s analysis, based on his estimate that the “25 to 30 hours I spent going through volume after volume” would be reduced by an “order of magnitude”.

Continental divide: closing the gap Legal research isn’t all about time-saving but it certainly helps, particularly if your area of law is influenced by recent European legislation and there’s precious little domestic precedent on which to support your arguments in court. In many branches of commercial law, particularly intellectual property and competition law, this is all too often the case – and English courts are beginning to recognize this, with many of them allowing precedent from other European national courts.

Such a problem arose for Jane Wessel, a litigating solicitor at London law firm Crowell & Moring. Last year she represented a company who claimed to have been overcharged by a carbon brush manufacturer that was found to have been part of a Europewide price-fixing cartel.

Seeking damages for her client through the English courts, Wessel didn’t at the time have access to Caselex, a new service distributed

by Justis Publishing that solves the problem of easy access to other member states’ national court decisions by providing a searchable database of case summaries in English.

Wessel eventually found the European cases she needed to fight her corner but Caselex, to which she has since subscribed, could have made things much simpler.

13

“Previously I used the European Commission website to search for cases,” she says, “but you can’t enter a search and scan through to see whether you need to refine it for future searches.”

However, she adds, with Caselex "... competition law, appeals, cases on jurisdiction under the Brussels regulation... it’s all so easy to find, so you’re confident that you’ve completed your search.”

Orient hearing So what of the future? One of the big questions is China. In the aftermath of the Cultural Revolution, the country had effectively no legal system. Britain’s China Law Council was set up by the Bar Council and Law Society in the late 1980s to provide practical training in the UK for a fledgling base of Chinese lawyers. Still continuing that drive, the council also provides a network for practitioners to exchange ideas and pursue opportunities in both countries.

Adrian Hughes QC of 39 Essex Street Chambers is the Bar’s joint Chairman of the council. “The industrial powerhouse may have a newly developing legal system but it has a 1,500-year tradition of mediation compared to our more recent adoption over the last 20 years,” says Hughes, so it’s a two-way educative process. “In the past five or 10 years, our mutual collaboration has been viewed by practitioners as increasingly relevant to both sides,” he adds.

Though its legal system is codified, the Chinese government has a strong commitment to law reporting. And the decisions of its courts are becoming of increasing interest to Western courts. A new database, iSinoLaw, has sprung up to cater for this and the concept is met with enthusiasm by Hughes. But, as we won’t do justice to the service – or to Chinese law itself – in the penultimate paragraph of this short article, we’ll have to save expansion on this for another day.

And for the closing paragraph itself? Well, the argument must remain moot. A New World Order of Law remains a distant dream (or nightmare); but frequent use of other jurisdictions’ arguments and systems could soon be the norm.

• Before joining Justis Publishing, Alistair King was a journalist for Building magazine. This followed time with academic publishers Routledge and Pickering & Chatto.

Along with The Barrister, he has written for the Student Law Review, Your Witness and the Australian Law Librarian, and he has collaborated with the Irish Times. Articles from these – and more – can be read at www. justis.com and www.justcite.com.

14

the barrister

the barrister

A new era dawns: Are we awake?

Andrew Butler, Barrister at Tanfield Chambers, considers the arrival of the Legal Services Act and what this means for how barristers should market their expertise, and reviews his chambers’ experience so far in embracing the new era.

The Legal Services Act 2007

A

mong

barristers, enabling them to make educated

regulatory

be. The role of the solicitor is likely to remain

The next task was selling the result to the rest

brand will, however, naturally reinforce the

but advances in how the consumer can

of chambers, and for this purpose we held an

consumer’s feeling that they are looking at

obtain information about services on offer

open afternoon for members to come and

the right person for the job.

means that the Bar must respond accordingly so that they can in fact reap the benefits

inspect the site (at this stage just a succession of PDFs) themselves. This of course was for

The site has recently gone live and I leave

of change rather than shying away from

my benefit not theirs, an insurance policy

it to others to judge the results. All I hope

it. There is no denying that consumers are

against later expressions of dissatisfaction,

is that those solicitors whom our clerks

becoming increasingly reliant on online

and as a precaution I arranged it for a Friday

say they can hear down the phone tapping

technology to help them make their decisions

Of course, politely pushing for change in a

afternoon when I was in Court. It went

away in search of the profile pages of those

– whether it be in their choice of insurance

being put forward for potential briefs will

provider,

old, tired website?

decisions about who their advocate should the

15

supermarket

or

indeed,

legal

objectives of the Legal

significant, aside from continuing to refer

chambers meeting is, I imagine, a bit like

swimmingly; the designers said that those

Services Act 2007 is the

their clients, they will continue to perform

going out for a quiet drink in the days of press

who came along were cheerful, polite, to the

be pleasantly surprised by what they find.

expert. Therefore, as service providers, we

need to improve access

essential tasks that barristers cannot, for

gangs. I immediately found myself chairing

point, and obviously more interested in going

And the cost of all this (plus a vibrant media

need to ensure that the volume and quality of

to justice, protect and

example, be engaged in, such as the general

our Marketing Committee and meeting a

out for a drink!

promotions programme which now sees our

information about the service we provide is

members obtaining media space like never

in line with the requirements of the consumer

management or administration of a client’s

succession of web designers distinguishable

the consumer and encourage an independent,

affairs.

Nevertheless, the point remains

only by the varying levels of technical jargon

Utilising yet a third set of professionals

before)? About half the annual salary of our

so that they can ultimately make an informed

strong, diverse and effective legal profession.

that barristers can no longer solely rely

they employed. Eventually we resorted to the

to construct the site, we harmonised the

former chambers director. No disrespect to

choice.

The aim is clear: the Act seeks to encourage

on solicitor-driven work as the consumer

tried and tested technique of asking the only

presentational side and the technical side.

an excellent professional like him, but I think it’s money well spent.

promote the interests of

change in the legal marketplace, but how,

embraces the notion of direct access. Whilst

people whose language we could understand

The aim was to try to think really hard about

as barristers, will this affect our profession?

maintaining the traditional alliance with

– other barristers.

how our clients – not forgetting that this now

Andrew Butler, Tanfield Chambers

Will it radically alter the relationship between

solicitors, the Bar should properly consider

extends to the general public too - would

www.tanfieldchambers.co.uk

solicitor and barrister? Will we see barristers

the impact of online technology on consumer

working in partnerships? One change that

buying habits.

is already here is that of a more accessible

Don’t drop off

Thus settled on a reputable firm of legal PR

want to use our website, making it as easy as

consultants, we commissioned them to audit

possible for users to choose barristers by call,

chambers, identify some “brand values”

experience and expertise, and highlighting

The main message, in my opinion, is that

legal market for consumers through the

The Internet has enabled consumers to be

and think how to accentuate and articulate

in a self-contained section those who are

solicitors

and

increasingly utilised means of Public Access.

increasingly savvy in making choices. An

those values, making us as distinguishable

prepared and qualified to accept Public

barristers embrace

should the

As a result, the consumer will want easy

incredible depth and breadth of information

as possible. After all, weren’t we just another

Access work. We also wanted accessible

access to information on the track record

available on the internet means that we all,

collection of jobbing barristers striving to get

images, with an element of wit and latitude;

change

and expertise of the barrister – this must be

as consumers, make informed choices and,

work? Not quite, it seems; the audit revealed

I am particularly pleased that one member’s

Legal

addressed. Are you listening at the back?

as a result, simply disregard products if we

certain strengths and weaknesses which

dog basket (or technically, I should say, that

Act

2007

most of us collectively recognised, while at

of his pet dog) will now adorn our pupillage

and

is

already

the same time never quite realising we had.

page, and that a bottle of champagne left

bringing

about.

incongruously in a row of files introduces

Online technology

forthcoming social events.

provides

have no point of reference as to their success,

Public access to information

popularity, effectiveness etc. It is time for the Bar to catch up with the trend that has been

A Green Paper in 1987 suggested a change

set by other sectors and professions – we

How to weave these brand values into a

in the traditional two-tier approach that

need only look at insurance, travel, finance

website? For this, we retained the services

that

the

Services will

an

e x c e l l e n t opportunity

has always been adopted by the profession

and supermarkets to see how advanced the

of a niche design company who produced

in this country – i.e. a solicitor instructs a

process of information merchandising has

two “concepts” for us – both visually striking,

members’ profiles and photographs. This

the Bar to promote

barrister on behalf of the client. The rules

become.

both fresh, both some way removed from

threw up a number of contentious issues (in

competition

in

what one might often see when visiting

particular “But why can’t Diocesan Law have

the

of

those of other chambers (when not dazzled

its own Practice Group?” and “I’m not really

services

by one’s opponents’ terrifyingly impressive

that fat, am I?”) but, by a combination of

encourage

credentials). We drew on aspects of both

cajoling, flattering, and threatening to write

independent,

them myself, they all seem to have got done.

strong,

public’ to approach and instruct barristers

Tanfield’s experience

directly for certain purposes. The traditional role of the solicitor as intermediary has been

Against this background, the departure in

provision and

• Fixed fees • Meetings in Chambers • Timely service • Monthly newsletter

for

That left only the small task of collating the

subsequently changed in 2004, allowing ‘the

TAX RETURNS & ACCOUNTS FOR BARRISTERS

to an

Call Martyn Bradish for a free, no obligation meeting Visit the barristers & judges page in the services section of our website at www.bradish.co.uk

diverse

altered and in many cases the consumer will

August 2007 of our Chambers’ Director

concepts, and two weeks later we were

be looking to appoint a barrister directly

seemed to me to be a cloud with a silver

shown the result. The ability of the designers

resulting in an increasing public appetite

lining. Capable though he was, losing him

to reflect our various wishes and preferences

Of course, the information that is available on

profession – let’s

for on-demand interaction. Rather than

provided an obvious opportunity to re-vamp

was enlightening and impressive; I have

the website about an individual’s expertise

use it effectively.

Solicitors

will to

and effective legal

relying solely on solicitors’ advice, the

chambers’ marketing practices and maybe

seldom seen a committee of barristers

and experience is just as important as the

technologically aware consumers of the

bring in some external expertise. And, while

reduced to such a state of reluctant, helpless

message that the site communicates about

continue

21st century will seek out information on

we were about it, why not have a look at our

unanimity.

the set as a whole. But, being part of a strong

instruct barristers

31 Dugdale Hill Lane, Potters Bar, Herts EN6 2DP T: 01707 850969 www.bradish.co.uk mail@bradish.co.uk

16

the barrister

the barrister

Enhancing the Participation of Children in Family Proceedings

just one of which is their wishes and feelings.

It is my experience that children have little difficulty in understanding such basic rules.

The issue of whether or not children should have the opportunity to play a greater part in proceedings where decisions will be made which will affect the rest of their lives is becoming the subject of increasing debate.

• we have constantly to balance the Human Rights issues against welfare issues; • there is a significant difference in assessing the needs and assessing the wishes and feelings of children in private law compared with public law; • if a child expresses an interest in seeing the judge, there needs to be discussion as to how this need may be met – the Enhancement paper already referred to raises various possibilities.

By Nicholas Crichton, District Judge, sitting at the Inner London Family Proceedings Court

W

ould you want important decisions to be taken in your life without being consulted?

Even if somebody talked to you beforehand and undertook to report your wishes and feelings to the person charged with the responsibility for making the decision, might you want to meet that person to make sure that they truly understand how you are feeling? Children have views about what they want to happen in their lives – why should we not give them the opportunity to make a connection with the person who will be making important decisions for them?

Put simply, Article 12 of the United Nations Convention on the Rights of the Child states that a child has a right to have an opinion, to have that opinion listened to, and to have it taken seriously; and specifically to be provided the opportunity to be heard in any judicial proceedings affecting him, directly or through a representative.

The issue of whether or not children should have the opportunity to play a greater part in proceedings where decisions will be made which will affect the rest of their lives is becoming the subject of increasing debate.

In their research published in “Your Shout” and “Your Shout Too” the NSPCC established that a significant number of children involved in public law proceedings would like to have had an opportunity to go to court; and that of those who did in fact go to court an even greater number felt that they received insufficient support and were not listened to; and that a larger number of children involved in private law proceedings would have liked an opportunity to go to court and speak to the judge. One of the most concerning findings was that some children had not felt listened to properly by Cafcass.

In Mabon v Mabon [2005] 2 FLR 1011 Lord Justice Thorpe and Lord Justice Wall reviewed and referred to the benefit of the “tandem model” of representation of children in the English courts. Lord Justice Thorpe went on to say that –

“it

was

simply

unthinkable

to

exclude young men aged [17, 15 and 13] from knowledge of and participation in legal proceedings that affected them so fundamentally”.

Lord Justice Wall referred to “the reluctance of the English Judge to talk to children in private” and said that –

“from the boys’ perspective it was simply impossible for the guardian to advance their views or represent them in the proceedings.

He would, no doubt, faithfully report to the judge what the boys were saying, but the case he would be advancing to the judge on their behalf would be (or was likely to be) directly opposed to what the boys were actually saying”.

In Re W (Leave to Remove) [2008] 2 FLR 1170 Lord Justice Thorpe spoke of the participation of children as being a matter of particular topical concern. The three judges of the Court of Appeal in that case had differing views about whether the children in that case should have met with the judge who decided their case, and at what point.

In his address to the UK Association of Women Judges at their Annual Conference in March 2006 the President said “The question of the involvement of children in decision making and the representation of their rights and interests in both public and private law proceedings enjoys a higher policy and public profile that at almost any other time in our recent history”.

He went on to say –

“ … it is my view that, in an effort to ensure the welfare and happiness of children, and to listen to their voice first hand, we should be encouraging judges to talk in private to children who wish to do so, trusting the judge to retail the burden of his concerns or any changed perception having heard the child, whilst respecting the confidence of the child in sensitive areas”.

In the May 2008 edition of Family Law the Voice of the Child Sub-Group of the Family

Justice Council published a paper ‘Enhancing the Participation of Children and Young People in Family Proceedings - Starting the Debate’.

In fact, the debate was started at an event held at Inner Temple Hall on 20th October.

Approximately 150 attended. The event was chaired by the President, Sir Mark Potter.

There were presentations from two young people, one who had experienced public law proceedings and one who had experienced private law proceedings. Mr Justice Hedley and Anthony Douglas (Chief Executive of Cafcass) spoke for greater involvement of young people. Anthony Hayden QC and Alistair Paddle, (former chair of NAGLRO) argued for a more cautious approach. A distinguished panel which included Mr Justice McFarlane and Lucy Theis QC, Chair of the FLBA, then took questions from the floor. Highlights of the debate can be heard on a pod cast which can be found on the FJC website at www.family-justice-council. org.uk. An edited typescript of the debate is also available on the Council’s website. The FJC has received some extremely helpful responses from various quarters. It is hoped to publish a summary of those responses in early in 2009.

The Voice of the Child Sub-Group does not suggest that all children should attend court. Nor do they suggest that those who do attend court should be giving evidence, except in very rare cases. Their wishes and feelings are properly established by trained and skilled professionals away from the court and presented to the court in written form. However, as the NSPCC research demonstrates, there are a significant number of children who feel excluded from the decision-making process and who would like to have a greater connection with that process. In order to establish that connection they need to be provided with age-appropriate information to enable them to understand the process and the role which they might play.

They need to have it explained that whilst their wishes and feelings are important, they are not necessarily determinative. When I see children in my court I make it clear that we cannot have secrets from their parents and the other parties in court; and that judges have rules – they are required to take a number of different things into account,

Of course there are challenges –

It is my personal belief that Cafcass officers should routinely discuss with children and young people of an appropriate age and understanding whether or not they would wish to meet with the judge, at the same time explaining that not all judges will be willing to see them. In my view, and in the view of the Sub-Group, judges should not be reluctant to meet them. Many judges like to have a photograph of the child in order to give a face to the person for whom they are making a decision – better still, surely, to meet in

person? It needs to be stressed that the object of the child meeting the judge is not to assist the judge but rather to assist the child. There are many ways in which this can be achieved.

It is rarely appropriate for the judge to see the child in the presence of parents or other parties. He can see the child in his chambers or in the courtroom. He should do so in the presence of another professional such as the Cafcass Officer, the child’s solicitor, the court associate or legal adviser. It is my practice to agree a note of what was said which can then be shared with the other parties.

Some will find it easier than others to talk to children. Guidance and training needs to be introduced to assist judges in communicating appropriately with children, which would be of benefit to all. The members of the subgroup would like to think that ten or fifteen years from now judges will be routinely seeing those children who wish to see them. Of course, some children may prefer the decision to be made without meeting the judge. What is important is that the alternatives are discussed with the child and that he should be given the choice. This means providing the child with the information to enable him to understand the whole process

17

and then discussing it with him in order to establish how best to meet his individual needs. Involvement is empowering, even if it results in the child declining to take part.

Empowerment increases confidence and selfesteem. Refusal to meet a child who wants to meet the judge lowers confidence and selfesteem.

I started this article by posing some questions.

I conclude by posing another – should judges be making these sorts of decisions if they are unwilling to meet the people they most affect and sometimes, in appropriate circumstances, to explain their decisions to them?

Note: in this article “children” should be taken to include young people; and “judges” should be taken to include magistrates sitting in the family proceedings court.

Nicholas Crichton is a District Judge, sitting at the Inner London Family Proceedings Court, a member of the Family Justice Council and the Chair of the Council’s Voice of the Child Sub-Group.

18

the barrister

the barrister

Public Inquiries - do they really work?

By Ann Alexander, formerly Senior Partner of national clinical negligence law firm Alexander Harris

B

arely a week goes by

me for advice about how they might have

"I hope to be able to make recommendations

without fresh calls for a

such an inquiry after his criminal trial. But

which will seek not only to ensure that a

public inquiry of some

these families know that they want answers,

doctor like Shipman would never again be

kind.

these

and for the truth to be revealed in a totally

able to evade detection for so long, but also

the

independent forum. And most importantly

to provide systems which the public will

Lockerbie and Omagh

they want complete transparency – for that

understand and in which they will have well-

bombings or the circumstances surrounding

search for the truth to be conducted in public

founded confidence."

the recent death of a young student in Leeds,

with the media present to report on the

public inquiries are seen as being the most

evidence being given so that all the details

But

effective way of investigating major tragedy

will be exposed and nothing can be hidden

formally

so that lessons will be learned and change

away behind closed doors. After all, in spite

recommendations, they have still not been

will happen. After all, it is well known that

of a lengthy legal battle which went to the

implemented.

following such an event, grieving families

Court of Appeal, the parents of the children

since the publication of Dame Janet’s sixth

are intent upon discovering the truth behind

killed and injured by nurse Beverly Allitt in

and final report, a report from the Healthcare

what has happened and most importantly

Grantham had to settle for an investigation in

Commission says more work is necessary

want to make sure that change is effected

private with little involvement for themselves

to ensure all concerns are picked up,

so that no-one else will have to go through a

or for journalists. And today, nearly 15 years

investigated and, where appropriate, action

similar experience.

later, many of those parents still don’t feel

is taken.

calls

Whether arise

from

even

though

accepted

very

the

government

many

of

those

Recently, nearly four years

that they know enough about what really In recent years there have been many

happened and why.

And this is by no means an isolated example.

examples of major organisations who have

There have been 70 public inquiries into

failed to carry out their responsibilities,

Whilst inevitably to some extent those

child abuse cases in England and Wales,

whether they are substantial companies or

responsible will have been one or a handful

producing thousands of recommendations.

government agencies, and often the result of

of individuals - after all it was Shipman

But that failed to prevent the death of 8-year-

those failings is catastrophic human tragedy.

himself who killed his patients - it is the

old Victoria Climbié, which was itself followed

In the health care arena, for example, one

exposure of failings in the systems which

by another far reaching Inquiry under Lord

only has to ask why so many babies died in

is vital to identify where and how change

Laming.

the cardiac unit at the Bristol Royal Infirmary

must take place and for the Inquiry to make

between 1988 and 1995 and how Harold

recommendations for change.

A number of reasons might be put forward as

Shipman, the general practitioner from

to why this might be the case. It is beyond the

Hyde, Cheshire managed to kill so many of

But that is all an Inquiry can do – make

brief of an Inquiry Chairman to make sure

his patients throughout his career without

recommendations. They are not the law. And

something happens after his or her report is

arousing suspicion?

it is then up to government to decide whether

published and government ministers who do

it accepts them and when and how to

have that responsibility move departments.

implement them. And there lies the problem.

In March 2006 when Harriet Harman M.P.

“Families call for public inquiry” – an all too familiar headline following such a tragedy

was Minister of State for Constitutional

but do those families actually know what they

In a series of reports following the Shipman

Affairs she went to Hyde, Cheshire where

are asking for? Michaela Willis’ 7 day old son

Inquiry, Dame Janet Smith made hundreds

Shipman practised as a GP to talk to some of

Daniel was one of the 29 babies who died at

of recommendations for sweeping changes

the families about how her department was

Bristol. She chaired the Bristol Children’s

across

general

implementing the changes to the Coroners

Heart Action Group and recently told me that

practitioners operate to close all the loopholes

system but shortly afterwards she became

they didn’t know what one was. Neither did

Shipman had exploited. Writing in her first

Deputy Leader of the Labour Party and she

the Shipman families when they approached

report published in 2002, Dame Janet said:

had to pass the responsibility to someone

the

systems

in

which

19

else. That is what civil servants are there for

transparent Inquiry process if the shutters

Ann Alexander, formerly Senior Partner

but the families believe the impetus has been

then come tumbling down. How many more

of national clinical negligence law firm

lost and little has happened.

avoidable tragedies will occur before a

Alexander Harris, has now retired from

rigorous mechanism is put in place to make

full time legal practice and runs a media

sure effective change is implemented? Until

and communications consultancy, working

that happens, institutional and systemic

in partnership with broadcaster Alistair

failings will remain.

Macdonald as one half of Alexander Macdonald

And is that good enough?

In the course of making a documentary recently for Radio 4 about how such Inquiries

(www.alexandermacdonald.co.uk)

work,

As Michaela Willis summed up, “It seems

I spoke to a number of people with

ludicrous if you actually go through such a

considerable experience of public inquiries

lengthy process for the recommendations

and I asked whether there needs to be a

then not to be acted upon.”

change in the way in which the Inquiry system operates.

© Ann Alexander October 2008

Neil Garnham QC was Leading Counsel

The documentary which was broadcast as

at the Climbié Inquiry and told me that

part of the Analysis series for Radio 4 on the

there needs to be a follow-up process. That

30th October and 2nd November is available

process should, he says “call to account

to listen to at www.publicinquiries.co.uk. It

the government departments or the local

was researched, written and presented by

authorities or whoever it is, to ensure that

Ann Alexander and produced by Jim Frank.

they have done what has been expected of them and that needs to be a refinement to the process of some inquiries.”

The idea is supported by Richard Lissack QC, who has been involved in nine inquiries and is the editor of a forthcoming book on the system. “It would be an extremely good idea to build into the inquiry process the idea of someone being charged with seeing through the recommendations for change. This would ensure “it doesn’t just sit on a shelf for six years gathering an ever thicker collar of dust.”

At present there is no procedure for anyone to take responsibility for making the changes.

And of course because the media spotlight has died down, there is regrettably an assumption on the part of many that the changes have in fact been implemented and the failings have been fixed. There’s no doubt that the process has a beneficial effect on cultural change; it does inform the public.

And whilst it has to be up to government to

decide

which

recommendations

it

accepts, what is the point in having a wholly

NEWS ROUND UP

20

the barrister

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Solicitor’s appointment to senior judicial sets example, says LawNEWS Society NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSpost NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSand NEWS The Law Society has warmly welcomed the appointment of solicitor David Latham to the role of President of Employment Tribunals NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS says his appointment should set an example for the profession’s judicial ambitions.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Law Society President, Paul Marsh, says: NEWS NEWS NEWS 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 “We congratulate Mr Latham on his appointment this senior judicial role and hope NEWS this fuelsNEWS the aspirations of other NEWS solicitorsNEWS to seekNEWS NEWS NEWS NEWS appointment to the bench.NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS “Once the reserveNEWS of the Bar, the judiciary is gradually opening up. Mr Latham’s appointment is a giantNEWS step in NEWS that process.”

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Mr Latham, 62, was admitted as a solicitor in 1971. He was appointed as a part-time Chairman of the Employment Tribunals in 1992, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS becoming a full-time Chairman in 1996, and then appointed as Regional Chairman in 2001. He was also appointed as Legal Chairman of the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Reinstatement Committees and Umpires Panel in 1998 and of the Reserve Forces Appeal Tribunal in 2003.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Mr Latham replaces His Honour Meeran whoNEWS retired NEWS as President of Employment Tribunals (England andNEWS Wales) NEWS on 31 December 2008.

NEWS NEWS NEWS NEWSJudge NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The LawNEWS Society has beenNEWS a strongNEWS advocate for an NEWS independent and NEWS impartialNEWS systemNEWS for judicial appointments.

It continues to lobby on behalf NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS of its members improvements to both the underlying statutes andNEWS the selection could either NEWS deter or NEWS debar solicitors NEWS NEWSfor NEWS NEWS NEWS NEWS NEWS NEWS NEWSprocess NEWSwhich NEWS NEWS NEWSfrom NEWS applying NEWS for and attaining appointment as aNEWS judge. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Commission, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The LawNEWS Society is working with the Judicial Appointments Master of the Rolls and the Lord ChiefNEWS Justice NEWS to persuade senior NEWS NEWS to NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS partnersNEWS to adoptNEWS a more NEWS positive attitude colleagues considering a judicialNEWS appointment.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Paul Marsh says: “Mr Latham’s appointment is currently the exception to the rule, but I am convinced that senior solicitors with experience NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS of managing major projects and cases would make ideal candidates for judicial appointment. However, they are just not putting themselves NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS forward.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS “In the contact we have with senior partners most cases thereNEWS is a negative attitude to NEWS the idea NEWS of partners having time out of practice NEWS NEWSthat NEWS NEWS NEWS NEWSinNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS to sit on NEWS the bench.

We want to change thatNEWS mindset.

Firms NEWS should regard theNEWS appointment of NEWS one of their solicitors to the benchNEWS as reflecting NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS credit onNEWS their firms.”

NEWS 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 Through NEWS its collaboration with the NEWS JAC the NEWS Law Society is working open upNEWS the judiciary to solicitors, and in turn helpNEWS to ensure the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS toNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS appointment of more women, disabled, black and ethnic minorities the bench.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Paul Marsh says:NEWS “The appointments process must NEWS result inNEWS the bestNEWS talent obtaining judicial positions, not onlyNEWS for the NEWS benefit ofNEWS the courts NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS system but most importantly of all for the society it serves.”

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS 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 Law Society presses bankers toNEWS support StudyNEWS into NEWS local NEWS legal NEWS advice announced NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS solicitors The Ministry of Justice has announced a study into the funding and NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS On Thursday 04 NEWS December 2008 the Law NEWS Society started series provisionNEWS of localNEWS legal advice.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSaNEWS of meetings withNEWS all the NEWS major retail banks to explore howNEWS NEWS NEWS is NEWS NEWS NEWS NEWS NEWS NEWS NEWS The government keen toNEWS assessNEWS how recent legalNEWS aid reforms and NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS solicitors NEWS NEWS NEWS NEWS any wider changes to the NEWS way in which local advice NEWS agenciesNEWS are banks can help support throughNEWS the recession.

NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWS NEWS funded have affected the provision of services.

The NEWS aim is toNEWS identify,NEWS NEWS The president the LawNEWS Society NEWS approached the banks andNEWS the NEWS NEWSand NEWS NEWS NEWSevidence NEWSacross NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS bring together analyse the available England British Bankers Association recently seeking an opportunity to NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS and Wales. explore NEWS the issues affecting solicitors' businesses in the credit NEWS NEWS Lord NEWS NEWS NEWS NEWS NEWS NEWS crunch.NEWS NEWS NEWS NEWS NEWS NEWS NEWS Justice Minister Bach has commissioned the study which will NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS examine: 'We hope to develop a common of our members' NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSunderstanding NEWS NEWS NEWS NEWS • the impact of the recession and the demand for civil legal NEWS advice NEWS NEWS various NEWS businessNEWS modelsNEWS and the NEWS factors affecting judgement NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS of risk of lendingNEWS so that NEWS we can encourage the banks to take • the impact of civil legal NEWS advice fixed fees NEWS on local NEWS providersNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS a supportive approach solicitors to helpNEWS them through financially and inNEWS terms ofNEWS the typeNEWS of workNEWS they areNEWS taking on NEWS NEWS NEWS NEWS NEWS NEWS NEWStoNEWS NEWS NEWSthe NEWS downturn', says Des Hudson, Law Society chief executive.

NEWS NEWS NEWS NEWS • the initial experience of NEWS Community LegalNEWS Advice NEWS Centres,NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS includingNEWS the impact on other providers in the area NEWS NEWS NEWS NEWS 'In theseNEWS meetings we will discussNEWS the extent of theNEWS currentNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS problem, the prognosis for the future and steps banks can NEWS take • trends in funding from sources other than the Community Legal NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS to minimise the impact on the profession.

We would also like to Service, including local authority funding, national lottery funding, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS agree to regular meetings to keep the situation under review.' charities, central government departments and others.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS 'This is NEWS one of a NEWS series ofNEWS proactive steps the Society is Lord Bach said: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS taking very urgently to support these challenging NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSsolicitors NEWS inNEWS NEWS NEWS 'Legal aid is one of the fundamental elements underpinning the times and theseNEWS are all set out atNEWS www.lawsociety.org.uk/ NEWS NEWSand NEWS NEWSway NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS justice system an important of helping poorer members survivingthedownturn. are also reviewing the process NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSWeNEWS NEWS NEWS NEWSand NEWS of the community.

It enables access to justice for those whoNEWS cannot NEWS NEWS market NEWS for professional insurance with aNEWS view toNEWS NEWS NEWS NEWS NEWS NEWSThe NEWS NEWS NEWS NEWS NEWS indemnity NEWS NEWS NEWS afford toNEWS pay for legal advice and representation. government avoidingNEWS in future the difficulties many solicitors facedNEWS this NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS that NEWS NEWS NEWS aims to get the best valueNEWS for money from the provision of these year.' NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS services,NEWS so that as many NEWS people as possible can beNEWS helped using theNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS availableNEWS resources.

This move follows the announcement of a NEWS first phase of a Law NEWS NEWS NEWS NEWS NEWS NEWS in NEWS NEWS Society NEWS action plan whichNEWS aims toNEWS assist solicitors relation 'The need for legal adviceNEWS in areasNEWS like housing andNEWS debt willNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS to their professional indemnity insurance (PII) renewals.

A Law inevitably increase in these difficult economic times and the NEWS NEWS NEWS NEWS NEWSresources NEWS NEWS NEWS NEWS NEWSonNEWS NEWS Society NEWS sub-group will beNEWS seekingNEWS expert advice the insurance government wants to be sure that NEWS the bestNEWS use of existing NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS market to establish whether there are ways in which some of the is being made. This study will improve our understanding of how NEWS NEWS NEWSand NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS difficulties that have been experienced this year can be alleviated legal advice is delivered funded at the NEWS local level and establish NEWS NEWS NEWS we NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS for the future. what further information may need to inform future decisions.'

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS 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 barrister

21

NEWS ROUND UP

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS IBA launches e-magazine International Criminal forNEWS lawyers NEWS NEWS NEWS NEWS NEWSon NEWS NEWS NEWS NEWS NEWSCourt NEWSmatters NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS In its continuing effort to encourage lawyers and bar associations to engage with the International Criminal Court (ICC), the International NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSabout NEWS Bar Association (IBA) today launched a new e-magazine, 'EQ: Equality of Arms Review'. This important publication informs lawyers NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the ICC’s work through a compilation of concise, thought-provoking articles on important developments at the Court. EQ will act as a NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS valuable resource for lawyers worldwide. This e-magazine is to be published quarterly and subscription to it is free.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSnew NEWS NEWS NEWS NEWS NEWS NEWS NEWSChief NEWS NEWSatNEWS Among the manyNEWS articles NEWS in this exciting publication is an opinion piece by JusticeNEWS RichardNEWS Goldstone (the former prosecutor NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the International CriminalNEWS Tribunals for theNEWS former NEWS Yugoslavia and Rwanda).

Entitled ‘For Peace’s Sake: ShouldNEWS Justice NEWS Defer to NEWS Politics’,NEWS it NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Omar NEWS NEWS criticallyNEWS assesses the implications of a possible UNNEWS SecurityNEWS CouncilNEWS deferralNEWS of an arrest warrant against Sudanese President al-Bashir NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS under Article 16 of the Rome Statute.

In this regardNEWS Justice NEWS Goldstone states NEWS ‘an Article 16 deferral [byNEWS the Security Council], should it occur, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS will likelyNEWS be heralded as a failure NEWS for justice againstNEWS the might of politics’.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS One unique purpose of EQ is to highlight specific issues faced by defendants and defence teams appearing before the ICC. In this regard, EQ’s NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS first edition contains a special background feature on the defence team representing Thomas Lubanga, the ICC’s first accused. In a stimulating NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS commentary entitled ‘Does the ICC matter to lawyers?’ lawyers worldwide are encouraged to engage fully with the ICC by signing up to the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Court’s list of counsel. The magazine also includes insightful commentary on major issues currently faced by the Court, including: disclosure NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS challenges in the Lubanga case, the confirmation of charges against Mathieu Ngudjolo Chui and Germain Katanga and the need for states to NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS implement Rome Statute legislation into their national laws.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Mark Ellis, IBA Executive Director,NEWS comments, ‘TheNEWS long term viability of the ICC depends on collaboration and NEWS support NEWS of the legal profession.

NEWS NEWS NEWS about NEWS NEWSatNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Lawyers NEWS need timely information keyNEWS developments the Court in a format that is quick, easy toNEWS read, yet comprehensive’.

He adds, ‘EQ NEWS NEWSresource NEWS that NEWS NEWS NEWS NEWS knowledge NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS is an important the IBA expects will increase and awareness about the ICC and act asNEWS an important bridge between NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the legalNEWS community and the Court.’

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS To read the first edition of EQ: Equality of Arms Review go to http://www.ibanet.org/images/downloads/hri/11_EQ_News_November_2008.pdf NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Optional Protocol to the UNNEWS Convention forNEWS the Elimination of Discrimination Against NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Women NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Justice Minister hasNEWS made aNEWS statement on the publication of an independent of NEWS a protocol that allows women to take NEWS NEWS Michael NEWS Wills NEWS NEWS NEWS NEWS NEWS NEWSreview NEWS NEWS NEWS NEWS NEWS complaints directly to theNEWS United Nations they believe their rightsNEWS have been violated.

NEWS NEWS NEWS NEWS ifNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Minister NEWS of State,NEWS MinistryNEWS of Justice (Michael Wills):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 review of theNEWS experience of theNEWS United NEWS KingdomNEWS under the Optional Protocol to the United NEWS Nations NEWS Convention for the Elimination of NEWS NEWS NEWSAgainst NEWS NEWS NEWSannounced NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Discrimination Women (CEDAW) on 25 June 2007NEWS by my Noble Friend LordNEWS McKenzie of Luton has been concluded.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The CEDAW Optional Protocol allows women in the UK to submit complaints directly to the United Nations Committee for the Elimination of NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Discrimination Against Women if they feel that their rights have been violated. The government accepted the Optional Protocol to reaffirm NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS our commitment to women's rights and gender equality, and to gain greater empirical evidence on the value of individual petition to the UN NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS generally.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The review of CEDAW wasNEWS carried NEWS out by Professor Jim Murdoch of Glasgow University SchoolNEWS of Law. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Professor Murdoch finds that: *theNEWS CEDAWNEWS OptionalNEWS Protocol has notNEWS yet provided women in the UK with real benefits NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS *non-governmental organisations in the UK have not used the Optional Protocol in advancing the cause of women NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS *the quality of theNEWS UN Committee's adjudication on NEWS admissibility of complaints can appear inconsistent.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Government expenditure casesNEWS involvingNEWS the UK NEWS has beenNEWS calculated at just over £4,000 perNEWS case. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS on NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS evidence NEWS NEWS NEWS NEWS Professor Murdoch's findings suggest that NEWS the first NEWS three years haveNEWS not provided sufficient empirical to decideNEWS either way on the NEWS NEWS NEWScomplaint NEWS NEWS NEWSWeNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS value of other individual mechanisms. will need further evidence, over aNEWS longer NEWS period, to establish what the practical benefits NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS mechanisms NEWS NEWS NEWS NEWS NEWS are. In the meantime, the NEWS government will NEWS considerNEWS the merits of other individual complaints on aNEWS case-by-case basis.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Consultations onNEWS payment Crown Clarifying IELTSNEWS test NEWS requirements for NEWS NEWS NEWS NEWS of NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS CourtNEWS defence costs NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS BVC students NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The Ministry of Justice and NEWS the LSC NEWS have issued two NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS(MoJ) NEWS NEWS important new consultation papers on Crown Court meansNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS enrolling NEWS NEWS NEWS NEWS All candidates, on the BVC fromNEWS 2009, for whomNEWS testing and the award of costs from Central Funds.NEWS A number NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS English or Welsh is not their first language must demonstrate of controversial are proposed.

NEWS NEWS changes NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS that they have attained minimum 7.5 IELTS standard in all NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSaNEWS NEWS NEWS NEWS NEWS These include: sectionsNEWS of the test.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS *those who fail to apply for legal aid in Crown Court cases could NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS no longer be eligible for Central Funds payments if acquitted NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS You canNEWS apply forNEWS the BVCNEWS before completing the IELTS *consideration whetherNEWS those who fail the Interests of Justice NEWS NEWSofNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS requirements. in order NEWS to enrol on the BVC with the test in Magistrates’ Court NEWS cases, but subsequently legal NEWS NEWS NEWS NEWS NEWS obtain NEWS NEWS NEWS NEWS NEWSHowever, NEWS NEWS NEWS NEWS NEWS Provider in the autumn of 2009 you are required to have satNEWS and advice and/or representation, should no longer be able to claim NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS achieved 7.5 in all sections of theNEWS academic IELTS NEWS tests. NEWS back their costs from Central Funds NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS *cappingNEWS Central NEWS Funds payments in all cases for acquitted NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS defendants, including companies, to the relevant aid rates NEWS NEWS NEWS NEWS NEWS NEWSlegal NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSthe NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The LawNEWS Society will be seeking views of the profession NEWS NEWS NEWS NEWS NEWS to NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS and will be submitting detailed responses both consultation NEWS papers. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS

22

the barrister

the barrister

Financial Irregularity and Criminal and Civil Redress in the City In November 2008, at its Annual General Meeting, Napo, the Probation Union, called for an investigation into speculation and City dealings to ascertain whether there had been any criminal activity or behaviour or any evidence of recklessness or negligence.

N

apo

financial institutions. It has found that there

recent financial activity was anti-social in

sanctions introduced to control anti-social

are a wide range of readily available powers

that it caused individuals or groups alarm or

and criminal behaviour could be applied in

for the Government to draw upon to address

distress. Any sanctions could be based on

the circumstances outlined above. It is highly

this problem.

existing legislation such as that covering anti-

unlikely that speculators deliberately try to

social behaviour orders or curfews.

cause harm but in certain instances there

The Sentencing Advisory Panel, which was set

By Harry Fletcher, Assistant General Secretary, NAPO

23

may be evidence of total disregard towards

up by this government offers some guidance.

Activity deemed reckless could also lead

whether harm is caused or not, and certainly

They say that the highest level of criminal

to perpetrators being required to sign

harm has been a consequence of many of

culpability is where there is intention to

acceptable behaviour contracts instructing

the actions.

cause harm. The lowest level is where the

them to act properly and responsibly in

individual is proved to be negligent.

The

financial affairs. They would be similar to

Young people involved in anti-social behaviour

demanded

eroded and their savings put in jeopardy.

there are any forms of redress presently

panel describe two other levels, first where

those used with young people who have

in our communities are now frequently made

evidence

This offends against a sense of justice

available to the Government to bring some

there is recklessness with regard to whether

acted irresponsibly.

the subject of Anti-Social Behaviour Orders.

properly

and fairness within the wider community,

of the individuals to book for their behaviour.

any harm is caused and secondly whether

tested.

If criminal

especially since it is the taxpayer who has

Napo represents those professionals who

there is a knowledge of specific risks entailed

activity

is

proved

had to pay for the bail-out of the banks

have been given the responsibility by the

The Inquiry could consider possible penalties

Others are prohibited from associating with

in certain actions without intention to cause

then individuals and

and many people are expected to lose their

Government for implementing laws and

if misdemeanours were proved.

These

certain individuals or going to certain places.

harm.

Napo believes that this advisory

institutions should be dealt with by the full

jobs, and even their homes, as a result of

policies introduced to tackle behaviour which

might involve fines or compensation orders

Surely the government could consider orders

force of the law, and consideration should

what many commentators have described

has caused harm to society.

framework should be examined by any

in civil litigation. The Inquiry could consider

which told the speculators not to be involved

investigation to determine whether existing

imposing prohibition orders in respect of

in that behaviour again, or which prohibited

sanctions can be applied or new sanctions

trading if reckless or criminal activity or

them from working in financial institutions

are required.

intent were proved.

Such an order would

for a set period of time, or which prevented

prevent an individual from being involved

them from associating with individuals who

in any speculative financial behaviour if it

have behaved recklessly in the past.

that

any

should

be

be given to the possibility of new laws being introduced to cover reckless behaviour.

as reckless behaviour within our financial institutions.

During the last ten years the government had introduced ASBOs, curfews, parenting

In his opening address to the conference,

As Labour MP, and Secretary of the cross-

orders, and placed prohibitions on a range

In effect the court tells them not to do it again.

National Chair, Mike McClelland asked the

Party Justice Unions Parliamentary Group

of activity. The Anti-Social Behaviour Order

Napo believes that the Inquiry should be

question “who is it in society that creates

said, following emergency talks between the

has been used on thousands of occasions

carried out by a body deemed appropriate

was proved that their previous actions had

the most pain and harm? Is it those who

Government, Bank of England and Financial

against individuals where it has been proved

by government, which could be the Financial

caused individuals alarm or distress.

The

The union, however, is realistic. It is highly

we traditionally brand offenders, and with

Services Authority on the crisis in the British

their behaviour has caused alarm or distress

Services Authority, Ombudsman, the Home

Inquiry could consider whether powers were

unlikely that any of these actions will ever

whom the Probation Service engages in an

banking sector in mid-October:

to ordinary citizens. Curfews have been used

Office, or Justice Select Committee or, if

needed to seize any profits from proven

be taken, and once again those who are in

attempt to redirect them away from crime,

"Yet again the taxpayer is being asked to pay

to prevent predominantly young offenders

necessary, the Crown Prosecution Service.

reckless dealing which had compromised tax

a position of privilege and behave recklessly

or is it bankers, spivs and speculators whose

for the mistakes of the bankers with next to

from being at large during certain key hours.

The Inquiry should establish whether there

payers’ funds. Such legislation could draw

greed ultimately seems to threat the stability

nothing in return. The Government is set to

The

are immune from the civil and criminal

is a prima facie case for prosecutions to be

of whole economies and the well being of

throw £50 billion of taxpayers' money at the

prohibition orders against those involved in

on existing laws dealing with powers to

consequences.

brought against individuals or corporations

millions of citizens. Who are the villains and

banking sector's failures. I believe that the

certain types of offending. This has involved

confiscate the proceeds of crime.

criminals now?”

Government should nationalise to stabilise

preventing individuals going into certain

the banks. At a minimum the Government

geographical areas, from associating with

government

has

increasingly

used

Over the last period, many members of the

must place conditions on any bail out

named individuals or engaging in certain

public and both national and local politicians

including

activities.

have

scrutiny of the banks' accounts”

expressed

concern

that

certain

full

public

and

parliamentary

individuals in our banking and financial

Napo believes that many of

these principles could, and should, be used if recklessness and speculation has, itself,

under the existing criminal law or civil action in case of possible neglect.

Harry Fletcher If reckless behaviour was very serious individuals could be banned if the Inquiry

The Inquiry would also establish if any new

thought fit from further commercial dealing

legislation is needed to deal with recklessness

for a specified period of time.

or other criminal behaviour.

The Inquiry

institutions, who have been responsible

Since October 2008 it is clear that this activity

caused alarm and distress to members of

could examine the nature of any risk taking

The government has created 3,600 new

for causing or contributing to the current

will exacerbate the effects of the recession.

the public.

which

criminal offences since June 1997 in 55

economic crisis facing our country, appear

Indeed, hundreds of bank employees, who

to be able to walk away from the damage

are not responsible for the speculation, seem

that they have caused with impunity. Yet the same individuals have often received record

have

compromised

public

finances. Any sanctions which might be

Criminal Justice Statutes.

During the last few weeks the union has

drafted could be based on existing legislation

unfortunate that few if any of these sanctions

set to lose their jobs as a consequence of the

examined what actions can be taken under

which covers recklessness and criminal

might be applied in the current financial

catastrophe and bail-out.

existing

damage.

circumstances.

The Inquiry could examine whether any

Napo believes that the principles behind the

bonuses, whilst taxpayers in the community have seen their pension funds seriously

could

laws

against

those

who

have

It is indeed

recklessly caused harm to our society by Questions have been raised over whether

their anti-social behaviour in our banks and

Assistant General Secretary

24

the barrister

the barrister

Conferring on human rights and wrongs Reviewing the 2008 legal conference season: The Justice Conference, the Bar Conference and the Criminal Justice Management Conference

A

utumn is always a time for

interference with the right is essential. That

feel that the audience approved even though

the

seemed to me to be the thrust of her opening

it was nearly time for morning coffee.

goer,

and

conferencea

recurring

evaluation rights

law

of

human

after

“Things have changed radically in the last However,

considering

judicial

review

impeded efforts to counter terrorism. But this

Justice Conference was certainly profound

had not been the perception. Then we got a

and worth hearing.

bit of the ‘knock about’ politics and the views

the next General Election must be remote.

the Tory Conference in Birmingham with

LORD BINGHAM

JACK STRAW

David Cameron’s commitment on a future

The Bar’s theme for 2008 was ethnicity with

The other keynote speaker in between the

HRA.

the theme of human rights running throughout

50 years,” she explained. “The public is no

just as it has for our fellow professionals at

specialist sessions which were all of a very high quality and ‘fit for purpose’ was Jack

the Criminal Justice Management Conference with the police ‘take’ on human rights and

Lord Chancellor and ‘Justice Secretary’,

A FUTURE GREEN PAPER: A “Bill of Rights & Responsibilities

and he conceded that the Human Rights

What was needed now, he continued, was a Bill

Flanagan who did not disappoint with a

Act had not found a place in the public’s

of Rights and Responsibilities encompassing

statement on new policing policies.

Straw. Jack combines roles as a modified

argument in the morning.

theme for 2008 was the

In reality, he went on, the Act had not

wait and see, but Arden’s contribution to the

of the Opposition which I had witnessed at

By Phillip Taylor MBE, Richmond Green Chambers

serious

law of unintended consequences. We shall

25

an eagerly awaited speech from Sir Ronnie

ten

applications not involving human rights, she

years for members of the Bar and legal

longer content to know what the law is. They

affection — “despite its manifest benefits”.

social and economic rights that had not

considered that it would be for the individual

want to know why it is.” I came away from

This started well and I was looking forward

been included in the European Convention.

The best speech from the well attended

this session, as I have with other judges like

to some ‘politics’ (dare I say it!). I was not

It would be “an opportunity to bring together

Bar Conference came from Lord Bingham

Lord Bingham (see below), that we really

disappointed.

existing rights and responsibilities in one

although I found every session was of an

place and to provide a clearer articulation of

excellent standard - the most enjoyable being

the duties we all owe”.

the debate where ‘equity reflects core values

professionals.

to show that a decision under challenge could

Justice and Thomson Sweet & Maxwell combined again to run their most successful,

be held to be “perverse”.

do need to hear much more from them if Democracy had now become a “complex

for no other reason than the beauty of their

interplay between majority and minority

well crafted, and sensible, speeches. It was a

in human rights law with the theme, struck

rights”, she added. A comment I found

privilege to heard Arden LJ and I feel most

well by keynote speaker, Jack Straw, on how

particularly interesting from such a senior

were very impressed.

to make people love human rights, ten years

member of the judiciary.

on.

The Court of Appeal judge, who has been

well

established

and

thought-provoking

annual conference on current developments

it was his answer to the sixth and final

full flow of our equitable heritage was heard

question put to him which summed up his

lasting impact, it would have to win the

(forget the common law, this was where it

feelings when he replied with a passion about

public’s support — "and affection" — in a

was at!)

human rights issues involving conduct and

way that Human Rights Act had yet to do.

the balance which our society needs to have

Without it, Straw added, in response to initial

I started with Lady Justice Arden and I

as a two way street for rights. That struck

questions, the existing legislation would be

end with Lord Bingham. We were very

a chord with me as I have been teaching

at risk. This was the bit which remained

lucky to have these contributions at such

Arden thought that the Supreme Court

law to adolescents who know the rights but

with me as I could see he was genuinely

an uncertain time for all. It is impossible to

would evolve, although this would happen

seem unaware of the responsibilities that are

moved with a bit of low key emotion which

do justice to Bingham’s speech (forgive the

so the new Supreme Court will need to

slowly. She gave the example of the ‘Conseil

tagged on (like some clients).

can always have its place on these occasions

pun) as it stood out for its learning, its sense,

explain its decisions to the public in 2009.

Constitutionnel’,

when the future of such an important policy

its content and its conclusions. It was a bit

Perhaps I am a bit cynical but I felt she was

powers this year to annul laws that it regards

is being re-assessed

like reading some of the finely-tuned Lords

trying (rightly) to get the new agenda set on

as unconstitutional in France.

THE CONCEPT OF THE ‘CONSEIL CONSTITUTIONNEL’

The Bar Conference keynote speech from

this year (2009) when the changes occur,

Lord Bingham, and other speakers travelling

SUPREME COURT

also suggested that human rights law should

these rights are of genuine concern for those pursuing multiculturalism. It was particularly poignant just before the 70th anniversary of Kristallnacht which held a special place for all of us last year and was justifiably referred to for its historic warning.

show favour to individuals over the majority

which

AND

was

THE

given

new

its true course.

This went much further than the Human Of the new Supreme Court, which will take

Rights Act, which came into force eight years

over from the law lords (in name anyway),

ago but is clearly a persuasive precedent for

Arden LJ said this gave us all “a unique

us. She said: “It enables the citizen to argue

LADY JUSTICE ARDEN

opportunity for setting up an apex court

that primary legislation is unconstitutional

Before we heard from Jack Straw, it was the

for the twenty-first century”. She said we

human rights (as shown by some newspapers

statement which was the answer to a question

regularly named that day as critics) would

I referred to earlier on where the burden if

And that was that, because the jurisprudence,

damage the foundations of the two-way

responsibility lies: this is how he replied

the learning and the practical philosophy were

an affection for human rights — and one,

for minority rights in today’s society where

first ten years as we look forward to further

quite profound, way of achieving that is

Lord Bingham raised the hard cases and

legislation. His theme was echoed at the

by saying that this is a two-way street,

gave his version of what we do. It was a

other main conferences I attended, including

with responsibilities and obligations — then

thought-provoking start to a very successful

However, she was not predicting a parallel

the Bar Conference at Lancaster Gate on

the foundation in people’s souls for human

Bar Conference and as I saw earlier, I came

development in the United Kingdom. “But

‘Multinationalism

rights won’t be as deep or as strong as I

away feeling society needs more exposure

She went on to question whether the new

the Conseil Constitutionnel illustrates how

Tomorrow’s World?’

would wish; and it will be easier for a future

from these speakers talking about our ‘rights’

court should have different criteria for

institutions

administration of a different complexion to

in a world which, days later, found Obama as

selecting the cases it was to hear, perhaps

circumstances require.”

start to undermine the whole fabric.”

the 44th President of the USA and it is to be

the success of individual rights.

of the majority.

produce answers’.

for the soul of human rights law after the

changed the way we think about democracy,

the rights of the individual rather than those

at risk for us- namely a lack of affection for

Jack Straw finished his session with this

there throughout considering the safeguards

needed to build new institutions to ensure

contention was that the issues centre now on

law reports: ‘it raised questions but did not

waiting for) with a stark point about what is

street for these rights so it was for us to fight

Conference and tell us all that the Act has

law in cases where the Act applied. Her

Jack ended on his highest note (well worth

“If we don’t establish, in the public’s minds,

turn of Lady Justice Arden to open the Justice

and the way we consider the focus of the

which transcend cultural differences’ and the

view on the internet for its worthy content, But if such a Bill was to have any real and

tipped for promotion to the House of Lord

along the same route, rightly suggested that

Forget his delivered speech which you can

and to seek an order that it be set aside.”

can

change

and

evolve

as

favouring those that raised constitutional issues.

Arden felt that either an individual’s rights

Other judges have said they do not expect the new Supreme Court to be any different from

and

Multiculturalism-

Straw started his speech by telling us that

hoped that character rather than colour will

the main reason for the HRA can be seen with the atrocities of September 11, 2001,

I liked this because he got the tone right.

now find its predominant position for our

occurring less than a year after the Act

However Straw made no promise of any

global community as we fight for the soul of human rights in the twenty-first century.

Arden felt that its judgments, particularly

came into operation. “The debate became

legislation in the next Queen’s Speech. Since

can no longer be abridged, or the onus

the old House of Lords, which has no power

concerning such rights has been shifted to

those dealing with human rights, had to be

about whether terrorists themselves should

the Government has said it will consult

clearly communicated to the public. I could

be given the very rights they deny to others,”

widely on what a new Bill should contain, the

the state which would have to show that any

to overturn primary legislation. But observers have said that this takes no account of the

he said gravely.

chances of legislation being passed before

26

the barrister

the barrister

27

Forensic Science – Who investigates the investigators?

there is the opportunity for a defence

If a complaint has been made, say by a

been authorised. This cannot happen soon

scientist to explore the accuracy of both the

grieving relative, or harassed suspect then

enough and will at very least allow for the

tests, the interpretation and offer realistic

the case may be referred to the Independent

Courts to be reassured that the scientist has

alternatives in order to give balance to the

Police Complaints Commission. They have

performed to the best of his abilities. Those

Roger Robson, Partner, Forensic Access Ltd. gives his opinions on the current process of historic case review with particular emphasis on the impact within the UK forensic market.

overall thrust with which the forensic aspects

regional facilities throughout the UK with

working more so for the CDS should also

assist with a safe conviction or acquittal.

many staff – this is telling in itself.

not shy away from such regulation and this

Y

On this point, it is often unwise to go to the

ou would think in these

families who have had to live for many years

once more, say on the anniversary of a

other large corporate forensic provider for

modern times; cocooned

not knowing where, why or by whom their

particularly high profile unsolved murder.

a second opinion as their scientists too are

in quality systems; that

loved ones were killed.

Funding is released from the force and the

generally deeply entrenched in prosecution-

team review once more what they perceive

biased strategies and few have the skills to

to be the best way forward. Bias may already

effectively challenge.

there was little room for error and miscarriages of justice; yet the very

drivers of today’s society unfortunately still allow for the occasional slip which is hopefully captured further down the line, those not caught are sadly a reflection on our own inabilities within the judicial process. Whilst the figure surrounding such embarrassment is not within the status of shock, you will I’m sure agree that it would be absolutely unacceptable should the finger point without fairness at your partner, son or daughter.

I don’t recall a year passing by during the past 10 years or so without some high profile case being either solved, or a conviction being overturned using the power of DNA to make such judgements. Forensic science has been critical in many of these cases – sometimes it has been enormous help, other times it has been the misinterpretation that has lead to the downfall.

In terms of any

misuse, obviously, it is important to get it all right in the first place. Taking all of this into consideration it has to be applauded that advances in forensic techniques have assisted far more in solving old cases and allowing for safer convictions today on a

Forensic science – a powerful tool for

daily basis across the UK in comparison to

the police investigator

the occasional case which has for various

The use of forensic science as a tool to assist both the Investigator and the Criminal Justice System has become enormously important; much more so since the introduction in the 1990’s of DNA analysis. Whilst not conclusive in its interpretation, DNA alone has proved its worth in tracking down the perpetrator and assisting the juries with phenomenal statistics that evaluate how likely the DNA came from someone else with the same profile. The technique of DNA has been

reasons been at fault through the forensic tests or their interpretation. Within our adversarial system we do at least have the opportunity to challenge all aspects of the investigation that has lead to the prosecution case...and rightly so. These days there is now the opportunity to challenge the investigative strategy, the leads, decisions taken mid-way through an investigation and the forensic testing rational. All of this detail is now documented and disclose able.

exist and be heightened if a strong suspect

Criminal Case Review Commission [CCRC].

roger.robson@forensic-access.co.uk

suspect and in desperation spending many

to go for an appropriate expert to scrutinise

currently been reviewed and those waiting

thousands of pounds attempting to locate his

the prosecution work. Many Barristers have

on the touchline. Longwinded though this

DNA on the victim’s clothing, when in reality

their favourites. I suggest they seek to find

process may be at least we have checks in

it was not he who committed the offence in

out if the expert they use is still competent to

place within the CJS that allow for an Appeal

the first place. If allowed to perform their job

undertake the scrutiny. Are they or were they

process.

correctly, the forensic scientist should remain

a practitioner themselves? If not then the

appears. The police however do hold the funds ... why buy a CD if you don’t like the singer! Some Senior Investigating Officers (SIOs) believe as they hold the funds they have the right to set the forensic strategy.

Whilst this may appear reasonable a little

attack the interpretation with vigour they will not have appropriate skills to check the very basics of the tests. To take up the services of a “Hired Gun” may achieve success in muddying the waters but this practice is foolhardy and unethical and merely creates

knowledge is dangerous and their decisions

enhanced problems further down the line.

and

Yet the Hired Gun still exists and practices.

strategy

often

biased

–

they

are

As many of the high profile cases involve Expert Witnesses working for both sides the move to have pre-trial experts’ conferences in order to lay some common ground should only be applauded. The Barristers should stay away from the debate I suggest and the Experts should be reminded that it is their duty to serve the Court and not the individual who is paying their fees.

investigators not scientists and should allow

The forensic services offered in the UK

the scientist to do their job. A scientist who

continues to move rapidly, though the quality

does not challenge the decisions to ensure they are safe is not undertaking his role

So what is been done about it?

of the Statements, the time allowed to undertake tests and the role of impartiality

professionally. To remain objective the duty

The police forces have their own internal

has not been permitted to keep pace. The

of the scientist is not only to assist the court

mechanisms and checks to ensure themselves

forensic commercial marketplace has lead

and their Governors that they are spending

quite rightly to the Home Office introducing

public money wisely. The larger major crime

the first Forensic Regulator. His remit is

investigations are usually reviewed within

to oversee the quality of forensic science

7 days if no one has been charged with the

throughout the judicial process – a huge

offence; then re-reviewed more thoroughly

undertaking for anyone. Police forces, large

after 28 days. If the enquiry goes cold then

commercial forensic providers and eventually

the force may decide to bring in a fresh

the lone expert will need to demonstrate to

by finding scientific evidence to support the investigator’s proposition (that say Mr Smith

refute the proposition. Whilst many scientists

back as far of 30 years are making the

Access on 0845 230 2414 or by email at

a rather unhealthy list of cases that are

matter how forthright the police investigator

refer to this in the preamble within their statements, sadly very few have either the

fewer miscarriages of justice.

of years and through the guidance of the

Criminal Defence Service do not know where

chances are that whilst they may be able to

scrutiny, fewer “hired guns” and ultimately

Roger Robson may be contacted at Forensic

public money can be spent chasing the wrong

objective throughout the re-investigation, no

I’m confident will allow for a more robust

review process often spanning a number

A look at the CCRC website demonstrates

cases and bring to justice individuals who

of the Expert

directed, via a solicitor, through a rigorous

On occasion solicitors working for The

killed Mr Jones) but should equally attempt to

Misuse of the tool and the independence

unfit and still plead their innocence are

has committed offences in the interim. A lot of

used with great effect to unlock unsolved

have remained free to reoffend; cases going

Individuals that consider their convictions

headlines on a monthly basis. This has been

On occasion even the reinvestigation of a

time, the funding or are fully conversant

heartening for the forensic community as

historic case can and does not proceed as

with all the facts from the defendant to

a whole reaffirms the public’s trust in the

successfully as it may. The original police

perform the task of fully assessing the

investigative team from another force to

the court that the tests they use are accredited

police and most of all brings closure for the

investigative team may be pulled together

proposition to refute. Thankfully therefore

review all the original work.

and their competence to act as an Expert has

28

the barrister

the barrister

The future of e-discovery So, what of the future for litigation technology? It is fairly safe to assume that the needs of the litigator will remain fairly constant. This holds true for the expert as well – those of learning, distilling and processing the facts into a coherent, logical and persuasive presentation that retains integrity in court or other litigation.

By James Stanbury, Partner and Chris Paley-Menzies, Manager at RGL Forensics

2

050;

a

a

29

correspondingly, the longer it will take to

technologies, it must be said that searching

automatic system - this actually the subject

process into a reviewable form. Obviously,

for key words is rather a poor relation.

of some current research where decision-

when the term longer is used, this means

The industry now abounds with terms

making in a document review is set to

more expensive.

like

algorithms.

The collection guys also

contextualisation,

conceptualisation,

have to race to keep up with technological

categorisation,

threading

and

near

advances. The old days of performing disk

duplication.

Apart from the latter, these

Where we can hope to see light at the end

images onto a tape drive, when a 6GB hard

are all technologies designed to make the

of the tunnel is in the routine handling

disk would take all day, are long gone. Now

litigator’s life easier and are broadly aimed

of information within organisations.

hard disks in new laptops routinely top

at grouping similar documents in a data set

the moment most ways of automatically

At

200GB in size and there is a struggle to keep

together, sometimes via a visual interface.

classifying or tagging documents lie in

in

its roots in the expression ‘paperless office’.

familiar with the process of scanning paper

up to date with expensive forensic hardware

The theory goes that, if all emails suggesting

retrospectively applied technologies, which

Nottinghamshire

plain

room

The phrase, which came to prominence

into electronic format and being able to

to make acquiring such volumes of data not

a quick sojourn to the local hostelry are

are only brought in when needed.

overlooking

around 30 years ago, was the dream of

review it in an online system. The age-old

only possible within the deadlines, but also

clustered together then that grouping can be

assume that data is not going to get more

A middle-aged

office managers and technologists where

problem remains of how to search through

economically viable for the litigator client.

safely ignored. Unless, of course, the whole

structured,

man walks in and sits at

they envisaged the new computer technology

it all.

issue is looking into low staff productivity in

indicates a move to less overall structure

which case the reviewer has hit gold! These

in data storage – gone are the days when

methods are great but, because there is

each department would have its own file

farmhouse the sea.

This problem has been exacerbated

(indeed

the

current

If we

pattern

the UltraWood™ desk and

completely replacing paper within years.

hugely by now having to add in the

waves his hand through a sensor field above

However, any litigator will tell you it was a

exponentially increasing amounts of ESI. It

the desk. The field detects and authenticates

naught but a pipe-dream, in time-scale at

seems paradoxical that the very systems put

When looking at the task of retrieving

usually rather a large cost associated with

server) it is imperative that systems which

the e-Chip™ embedded in his hand and

least, as they still have to review rooms full of

in place to make our lives easier and more

relevant data from a large collection of

their application, they are usually reserved

automatically make sense of the unstructured

verbally identifies and welcomes – J. to his

archive boxes to discover the relevant parts.

“productive” are making things harder for

documents, or data set, the words precision

for those cases where the data set is truly

become commonplace.

iChambers™.

multiple

Sometimes, the only recourse was to throw

us, and, currently, there are no “easy” (or

and recall are often used. The precision of

enormous.

forerunner of this in a small utility program

beadlike projectors mounted within the

staff and hundreds of chargeable hours at

cheap) ways of taking these virtual vats of

a search determines the relevance of the

SynthStone™ walls beam into life a three

the problem.

data and making sense of them.

document(s) returned but does not take into

a wood panelled court room. The window

However, the eventual proliferation of the

Let us look at some of the particular

been retrieved. Conversely, recall measures

So,

shows a view of the long since demolished

microprocessor and electronic storage media

difficulties presented to the various involved

how well a search has performed in terms

technology? It is fairly safe to assume that

engine.

Royal Courts of Justice, the shining sun still

has lead to a gentle shift in the balance

parties: lawyers, forensic technology teams

of the number of documents retrieved.

the needs of the litigator will remain fairly

built in will be able to organise and present a

its normal shape. The Judge dons his iWig™

of power between paper and electronically

and forensic accountants.

However, it does not measure the relevance

constant.

structured view of the information at a single

which immediately starts communicating

stored information (ESI). While the concept

of the documents.

This principle is amply

as well – those of learning, distilling and

with the central nervous system terminals in

of the paperless office is still not wholly

The problem for the lawyer, as mentioned

demonstrated when using the traditional

processing the facts into a coherent, logical

his neck and stimulating his corneal implants.

based in reality—just about any established

above, has always been getting the best, most

method of interrogating a large data set

and persuasive presentation that retains

Finally, developments in artificial intelligence

The court room now becomes populated as

company that proudly boasts paperless

relevant information in the least time. There

without doing a page by page review, that of

integrity in court or other litigation.

mean that computers are already nearing

the AI system displays the avatars of the jury,

systems will still have large numbers of

is a trade-off between applying expensive

key word searching. A client of ours would

barristers and other attendees. A level toned

printed documents in a deep warehouse

technological solutions, which may or may

regularly ask us to do word searches across

Experience will still count, not only in

which determines the ability of a computer

but disembodied voice speaks, “All rise…”

archive—now the focus of the litigator’s

not get the most relevant information (see

computer evidence data and they would

deciding what the best course of action is

being able to fool a human observer into

Simultaneously,

dimensional scene and the room becomes

Relevant Data Retrieval

We can see a

called Calais. This is a ‘fact extractor’, which

Back to the Future

will analyse a document and record such

account whether all relevant documents have

information as names, events and places what

of

the

future

for

litigation

This holds true for the expert

which can then be fed into an analytical Document repositories with this

command.

the capability of passing the Turing Test

problem has largely shifted to the new virtual

below), or doing a page by page review

invariably ask for the word “Spain” to be

but also in analysing and getting to the nub

thinking they are interacting with another

A fanciful view of the future of court

world of things such as email archives, CRM

which takes huge resources and experience.

included. “Spain” always returned hundreds

of a case.

human.

proceedings

perhaps

computer

systems, transactional databases, shared

Additionally, at a recent seminar on this

(or occasionally thousands) of positive hits –

Expert, technology can forge highly pertinent

are becoming more and more sophisticated

technology

advances,

are

the

network folders, backup tapes, backup disks

subject, the point was raised that junior staff

a high recall factor but with low precision.

links and equations between data, but it has

and cheap.

implications for a problem apparently both

and even a technology that is actually called

performing the initial review may be less

However, by clarifying the search term to,

yet to replace their intuition in finding and

the opening paragraph will be replaced with

caused by and being solved by technology:

“virtualised storage”.

efficient than a senior, more experienced,

say, “villa and Spain” we might hope to get a

pursuing a line of enquiry that may support

a U.S. Robotics NS-6 (the “I, Judge”™), and

lawyer, but cheaper.

higher precision score.

or undermine an argument, or indeed a

the multiple Terabytes of data will have been

whole litigated case. The bloodhound is yet

subjected to a page by page review by a huge

to be replaced by K9!

bank of RoboParalegals™.

but,

as

what

that of e-discovery?

Current Challenges The

rise

of

e-discovery

and

For the Forensic Accounting

Additionally, robotics technologies

Maybe our online judge from

For the forensic technologist, who is tasked

Thus, the struggle faced by litigators is to

It appears that litigation support teams are in

with collecting the information to begin with,

balance these twin factors whilst applying

a difficult period at present. Technologically

the problems tend to be more logistical. It

the most technologically efficient way of

That's not to say that someone will eventually

James Stanbury is a Partner and Chris Paley-

The rise of e-discovery as a jargon term on

speaking, paper based records are relatively

follows that, the more data there is, the

actually

retrieval.

somehow manage to capture the knowledge

Menzies is a Manager at RGL Forensics

the lips of almost all litigation lawyers has

easy to deal with—most lawyers will be

longer it will take to collect and collate and,

However, compared to some of the emerging

and skills of a litigation professional into an

electronically stored information

performing

document

NEWS ROUND UP

30

the barrister

the barrister

The perils of trying to do a good deed

By David Griffith–Jones, Barrister and Director of Cantaffordalawyer.com

T

he

following

is

Litigation Costs: In anticipation of the effects of the ominously close Legal Services Act, we have to ask ourselves whether the current litigation model is looking outdated.

a

Barrister for a while and so he contacted his

is it sensible to continue to handicap qualified

fictional account based

chambers. The Head Clerk was immediately

practising barristers? What should Baby

upon a true story. It

concerned. Baby Barrister had broken the

Barrister have done?

considers the limits of

Bar Code of Conduct. He could not represent

pro bono support and

or advise Mr Thompson without proper

A barrister can help someone with a legal

acts as a warning to

instruction from a solicitor or similar licensed

problem so long as that help does not

body. The Head Clerk refused to accept any

constitute “legal services” as defined by the

more documentation. Despite his efforts Mr

Bar Code of conduct. He could have explained

Mr Thompson had been served with a notice

Thompson couldn’t find help from elsewhere.

to Mr Thompson what the procedure and

of repossession. He was 63 years old and

In the end, under prepared and with little

law was relating to repossession. He could

had lived in the same house for 9 years. The

legal knowledge, he had no choice but to

have researched the law on his behalf and

landlord claimed that he had not been paying

represent himself. But he didn’t understand

summarised it for him. In essence he could

his rent, however, he disputed that this was

the Defence or Counterclaim. Mr Thompson

have educated him on the law by providing

the case. His next door neighbour’s husband

struggled at court, lost the case and his house

and explaining legal information. What

was a barrister. He thought that she might

was repossessed. Instead of being able to

he could not do was apply the law to Mr

be able to help him and so he raised the

help, Baby Barrister now faced the prospect

Thompson’s case. He certainly could not

matter when she saw him in the street. She

of disciplinary action. He had jeopardised his

draft documents, advise or represent him.

kindly agreed to see what she could do. The

career trying to do a good deed.

The rules of conduct for barristers are there to protect the integrity of the profession. But

know this is a fair statement. Unarguably

charitable barristers.

neighbour’s husband, a QC, was too busy to

31

By Antony Brown, Chief Executive of Bivonas, solicitors and trial lawyers based in the City of London

B

arristers solicitors work

used

successfully

and

consumer wises up to the fact he can identify

us has to be fixed cost since the time and

to

niche firms that can deliver quality legal

expense system in most cases will encourage

in

representation more cost effectively.

delay and higher costs.

tandem; however this

E-disclosure has gained much attention

increasingly

recently with judges and experts calling

Bivonas specialise in civil and criminal fraud

costs

for all courts to implement the Commercial

litigation or where commercial disputes have

which is unacceptable in today’s financial

Court Long Trial Recommendations and

dishonesty undercurrents. Most cases go to

climate.

demanding that the legal sector takes action.

trial; there is little room for compromise.

E-disclosure practice directions are a step

We have our own QC, Mark Rainsford and

The Bank of England Governor, Mervyn

in the right direction but it is hard to accept

maintain a paperless office which is able

King described the framework as “an arcane

that such discussions are taking place in

to manage large volumes of documents

process which allows professionals to earn

2008 when the majority of businesses were

electronically. Mark acts as a conventional

vast fees”. The majority of litigants in

probably having similar discussions a decade

leading counsel or uses his knowledge of

England, whether private client or corporate,

ago.

large fraud trials to manage the disclosure

duplication

involves of

process and trial preparation, making sure

help himself but he asked a junior member

Unfortunately it is difficult for a barrister to

when it comes to pro bono work there is a

litigation is an expensive business and for

Supported by well managed IT the smaller

that whatever external counsel receive is

of his chambers (Baby Barrister) to give Mr

provide direct pro bono support. If he were

disparity between the two branches of the

some impossible.

niche practice can take on the perceived

capable of being relied upon at trial.

Thompson a call.

a solicitor he could have provided these

legal profession. In these times of limited legal

legal services so long as he had indemnity

aid and high private fees the aim should be to

The two professions arguably no longer

“Magic Circle” only really has a significance

Baby Barrister listened to Mr Thompson. He

insurance. A barrister in this situation could

create as much pro bono support as possible.

run in tandem but in parallel resulting in

in the areas of Banking and commercial deals

had a good case. In fact there were powerful

only act for the client if he was 3 years PQE

Until the code of conduct changes barristers

huge costs for the litigant. Several barrister

and the term really has no resonance in the

Bivonas are leading solicitors and trial

arguments for a counterclaim. Mr Thompson,

and had paid the £400 for a direct access

have to be very wary of any requests for help.

have explained to me what drives them to

field of litigation.

lawyers based in the City of London. The firm

however, didn’t understand the significance

qualification. The vast majority of barristers

of a particulars of claim, how to respond to

still don’t undertake this course. Only 120

them or what the court procedure would be.

or so are listed as undertaking housing law

Acting pro bono Baby Barrister drafted a

in the whole of England and Wales. It is not

Defence and Counterclaim. He met with Mr

known how many would entertain pro bono

Thompson and explained what he had done

work. Law Centres, Citizen’s Advice Bureaux

for him. He thought it was an interesting case

and other pro bono services are overrun.

and he agreed to help him. The Defence and

When there are so many people looking for

We see evidence of chronic over-manning by

Counterclaim were served.

pro bono support is it right to deny them

law firms which attend court with an army

The Legal Services Act will be the “big bang”

a source of free help from a professional?

of partners, associates and paralegals when

for the £20 billion legal industry. Now is the

The weeks went by and Mr Thompson’s

While solicitors continue to advance into

the case is argued by one QC. This is not

time to look at the structure of law firms and

case progressed. He hadn’t heard from Baby

territory once firmly the preserve of the Bar,

going to be sustainable if the sophisticated

how we bill our clients. The way forward for

Goliaths in the litigation industry. The term

perfection when preparing for trial and the

Antony Brown is Chief Executive of Bivonas

acts for large scale commercial and criminal

answer is the fear factor. The fear of being

The Bar aims to generate as much business

cases and are specialists in fraud and

made to look foolish by the trial judge, the

directly as it can and is probably more aware

regulatory litigation, criminal investigations

appellate judges, by opposing counsel, or

of the parallel system colliding than solicitors.

and prosecutions.

simply the fear of losing; criminal trials have

However the infrastructure of chambers does

the added dimension of a jury scrutinising

not necessarily support the unified litigation

counsel.

model and the lack of corporate/ collegiate infrastructure is a serious disadvantage.

32

the barrister

the barrister

33

series of recommendations to both the

would be permitted to speak to the media with the

the case as the tariff "does not reflect the seriousness

that, if the Government was in imminent danger

Lord Chief Justice at the early stages of the policy

mistakes in the Craig Sweeney case. This should

Government and the judiciary. The report

aim of securing coverage which accurately reflects

of the crime". On a BBC Radio 4 programme, Vera

of infringing the rule of law, he would speak "first

making process.

be reflected in the Editors Code of Practice and the

focused upon the impact of the Human

the judgment or sentencing decision". We also

Baird MP, then Parliamentary Under-Secretary at

of all privately to colleagues, and then publicly, if

Rights Act 1998, the Constitutional

considered the appearance of judges before select

the Department for Constitutional Affairs, stated

necessary". He stated that "publicly" meant "on the

The Committee also considered the potential role

Code of Practice Committee’s deliberation which

Reform Act 2005 and the creation of the Ministry of

committees, the role of the Lord Chief Justice and

that the sentence was wrong (an assertion she

floor of the House of Commons or in the public

for the courts in providing guidance to Government

will respond to our concerns.

Justice, which occurred during the inquiry.

his annual report, and the interaction of individual

later acknowledged was incorrect and for which

print".

on whether proposed or recently enacted legislation

judges with the media.

she issued a formal apology). In the Committee’s

p.1

In the report, we emphasised the importance of the Lord Chancellor’s fulfilling the duty to defend the independence of the judiciary (recognised by section 3 of the Constitutional Reform Act 2005) by ensuring that ministers do not impugn individual judges (and to restrain and reprimand those who do so) and recommended the inclusion in the Ministerial Code of "strongly worded guidelines setting

out

the

principles

governing

public

comment by ministers on individual judges". This recommendation followed the Craig Sweeney case, where the then Home Secretary the Rt Hon John Reid MP had publicly criticised a legal judgement.

We also criticised the Government's handling of the creation of the Ministry of Justice and called for a transparent process for the setting of the budget of Her Majesty's Courts Service, with appropriate judicial involvement. Other recommendations to the Government concerned the status of the Lord Chancellor, the involvement of the Law Officers in policy-making and legislative drafting, and the possible use of advisory declarations by the courts to rule on whether recently enacted legislation is

Follow up Report In October 2007 the Government published their response to the Committee’s report and the Lord Chancellor, Jack Straw MP, gave evidence to the Committee. The judiciary also provided a response that month—their first to a select committee of Parliament—and the then Lord Chief Justice, Lord Phillips of Worth Matravers, subsequently gave evidence to the Committee on two occasions. We sent a copy of our report to Sir Christopher Meyer, Chairman of the Press Complaints Commission (PCC). This was followed by correspondence with the Editors' Code of Practice Committee which reviews the Code.

The Committee took account of the two responses, the three oral evidence sessions and the subsequent correspondence and on 16 October published a further report2. Our aim in publishing the followup report was to analyse the responses by the Government and judiciary and to assess progress made since the original report.

Committee expect to see an outcome to the Editors’

is compatible with the Human Rights Act. We

Our reports on these issues have come at a time of

original report, we found that there had been a

In the original report, the Committee acknowledged

recommended a system of advisory declarations

significant change for the Judiciary and the legal

"systemic failure" in the operation of the new

that it would not be necessary for the Lord Chancellor

whereby the courts could make a declaration

profession. We hope to have made a contribution to

relationship between the Lord Chancellor and the

to reprimand fellow ministers if they always adhered

on the compatibility of legislation after hearing

ensuring that the changes being undertaken do not

judiciary, concluding that Lord Falconer, then Lord

to the principle of not commenting on decisions of

submissions from two or more parties. We found that

undermine judicial independence. We will continue

Chancellor, had failed to fulfil his duty to ensure

individual judges in an inaccurate and intemperate

this would avoid legislation being undermined by

to scrutinise the Government’s commitment to

that ministers do not impugn individual judges and

manner. We suggested that one possible way of

on-going legal challenges under the Human Rights

changes to the Ministerial Code and any future

to restrain and reprimand those who do so. We

achieving this would be to amend the Ministerial

Act. Such advisory judgements would have to be

reforms of the Judiciary or court systems.

also concluded that the senior judiciary could have

Code (the code of conduct and guidance on

made after the usual adversarial legal process, so as

reacted more quickly to what the Committee saw as

procedures for ministers, published by the Cabinet

to allay fears that such declarations might prejudice

Lord Goodlad, Chairman of the House of Lords

inflammatory and unfair press coverage following

Office) to include reference to the constitutional

future court cases.

Constitution Committee

the sentencing decision.

conventions which ought to govern public comment by ministers on judges. Such amendment would

We also recommended in the follow-up Report that

The Government’s response to our original report

also make the Lord Chancellor’s execution of his

the roles of Lord Chancellor and Secretary of State

1 http://www.publications.parliament.uk/pa/

did not accept our criticism of the conduct of Lord

responsibilities in this area easier. We were therefore

for Justice should continue to be combined in a

ld200607/ldselect/ldconst/151/15102.htm

Falconer. The Committee expressed disappointment.

pleased that the Government said in their response

single office holder as at present.

Whilst Lord Falconer eventually spoke out "fully

that they would "further consider the Committee's

and forcefully in public in defence of the judge in

recommendations when the Code is next updated".

We agreed with Lord Phillips, the then Lord Chief

the Sweeney case", we believed that he should have

In the follow-up Report we reiterated the importance

Justice that he should continue to publish an annual

done so sooner and that the Government should

of amending the Ministerial Code so that it gives

report and called on his successors to continue the

have disassociated themselves more quickly from

clear and unambiguous guidance to ministers about

practice.

the comments of the Home Secretary. It remains

how they should or should not comment about

our view that the Home Secretary's comments were

judges in public. We have undertaken to review

In our original report we concluded that the media

wholly inappropriate.

the position when the Government next update the

all too often published distorted and irresponsible

Code.

coverage of the judiciary, treating judges as 'fair

2 http://www.publications.parliament.uk/pa/

compatible or incompatible with the Human Rights

Amending the Ministerial Code

Act.

The first recommendation in the follow-up Report

The Government response stated that Lord

related to the Ministerial Code. In our original

Falconer's successor, Jack Straw MP, "will not shirk

Other recommendations

restraint and should desist from blaming judges

The report also examined the judiciary's channels of

report we had discussed in particular the political

his responsibility in reminding ministers that they

The Committee considered the establishment of

for their interpretation of legislation passed by

communication with the media and the public. Whilst

reaction to the Craig Sweeney case. Sweeney was

need to be extremely careful not to attack judges".

the Ministry of Justice - criticised in the original

politicians. In order to ensure more responsible

the Committee criticised sections of the media for

sentenced to life imprisonment for abducting and

In oral evidence, Mr Straw commented that "we [the

report on the grounds that the Government failed

reporting, we recommended that the Editors' Code of

irresponsible coverage of judges, we also concluded

sexually assaulting a three-year-old girl in June 2006

Government] are regularly going to be respondents

to consult with the Lord Chief Justice or the Lord

Practice, which is enforced by the Press Complaints

that the senior judiciary should act more quickly

but, in accordance with the sentencing guidelines,

to actions and quite frequently will lose those, and

Chancellor prior to announcing the new department.

Commission, be regularly updated to reflect these

in explaining judicial decisions in controversial

he was given a minimum tariff of five years and

we have to take it on the chin without a huge amount

In the follow up report we stressed that any future

principles. In the follow-up report we re-iterate

cases and recommended that "consideration be

108 days. The then Home Secretary, Dr John Reid

of complaint" and that "we may regret a particular

constitution or machinery of government changes

these concerns and stressed that media coverage of

given to appointing one or more spokesmen with

MP, subsequently attacked the sentence as "unduly

decision and we are entitled to say that, but not to

that impact significantly on the judiciary should

legal judgements should be factually accurate and

appropriate qualifications and legal experience who

lenient" and asked the Attorney General to examine

do that in a disrespectful way". He also made clear

follow consultation with the Lord Chancellor and

temperately expressed to avoid repetitions of the

game'. A responsible press should show greater

ld200708/ldselect/ldconst/177/17703.htm

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