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3 rd J une - 31 st J uly 2014 TRINITY TERM ISSUE



Chambers 13 Acquiring Premises

Term 2014 The year 2014 began with what may well be seen as two significant and historically important events which can now be shared with readers of ‘The Barrister’ – you cannot be exempt from knowing about them even if you missed the CPD points we achieved for both of them! The first was a fascinating ‘off-the-cuff’ lecture on ‘Judicial Independence’ by Justice Stephen Breyer at Middle Temple; the second a formal speech by the incoming Lord Chief Justice, Lord Thomas of Cwmgiedd on ‘Reshaping Justice’ delivered to the organisation ‘JUSTICE’ at Freshfields.

The weather was dreadful outside on 5th February 2014, and the trains were not running because of a strike. But even the rough winds of almost gale force and non-existent underground transport couldn’t deter a determined audience of assorted lawyers --

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Maintaining Judicial Orthodoxy Two historic judicial events held in Hilary

E st . 1999

By Scott Leonard, partner in the Corporate and Commercial team at Russell-Cooke LLP

Forensic Science 16 Rationing By Jo Millington BSc (Hons)

MSc PGCert MIABPA, Senior Forensic Scientist, Manlove Forensics Ltd

the Use of Technology 25 How Can Lessen the Impact of Increasing Regulation of Chambers By Helen Ford, Managing Director, Bar Squared Ltd

Phillip Taylor MBE, Richmond Green Chambers

constraints in the 28 Budget legal system reduces the

quality of evidence that appears before the courts By Matthew Jackson, Director, Senior Forensic Consultant and Expert Witness at Athena Forensics.


The Ballad of Reading (in) Gaol: Injecting Legal Analysis into the “Book Ban” Debate


“Books were the great saviour inside, and

to a restriction on the parcels prisoners

I sincerely believe books and education

can receive; an exclusion extending to

are the great rehabilitators.” This, from

underwear, clothing, and other gifts; letters

a prisoner who over the course of three

are still permitted. Though changes to the

decades was contained in over 30 different

“Incentives and Earned Privileges Scheme”


came into effect in November 2013, the

Such statements can trigger our emotions.

issue has recently resurfaced in the public

But as the effects of the much-hyped “book

domain following an article from Frances

ban” unfold, it is important that we limit the

Cook, Chief Executive of the Howard

Publishing Director: Derek Payne

stock we place in our instinctive reactions,

League for Penal Reform. The “book ban”


and instead consider the objective legal

has been widely debated and scorned by

issues at play.

academics and authors alike. Below

The popularly named “book ban” refers

we recount the reaction to the


Bar Chairman Welcomes "A Viable Pathway for the Criminal Justice System"


Statement From Bar Leaders on Very High Cost Cases

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Bar Chairman Welcomes "A Viable Pathway for the Criminal Justice System" The Bar Council, which represents barristers in England and Wales, has welcomed today's (27 March 2014) announcement by the Ministry of Justice of revised plans for criminal advocacy including deferring implementation of any cuts in the Advocates Graduated Fee Scheme (AGFS) for at least a year. The announcement follows months of mounting concern among the legal profession and beyond about the effects of the Government's proposed cuts to legal aid for Crown Court advocacy on access to justice and on the provision of legal representation by suitably skilled and experienced advocates. Nicholas Lavender QC, Chairman of the Bar, said:



administration particularly complex


making them more efficient.

There is no objection in


We have much to contribute



to Sir Brian Leveson's review

undertaking VHCCs, if that is








and look forward to working

what they choose to do."

on having advocates of the

with Sir Brian.

Nicholas Lavender QC added:

highest quality. It is in the

"We welcome the Ministry's

"The Government has today

public interest to ensure that

decision to commission a


people of ability at different

study of the economics of

listened to the Bar's concerns



practice at the criminal Bar,

and addressed a number of









which will take account of

them. It is also testament to

practices at the Bar. That is

previous funding cuts and

the profession's commitment

why I believe that today's

their effects on barristers and

to speaking with one voice in

announcement points to a

sets of chambers. The results

making sincere and evidence-

better future from the one


based arguments, steeped in

which many have feared,

evidence on which to base

and is to be welcomed. This




affecting the structure of the

"On behalf of the Bar Council,

just for the Bar, but more

Bar and avoid recourse to

I want to see us build on

importantly, for the criminal

further salami slicing of legal

today's announcement by the

justice system.

aid to achieve savings.

Ministry of Justice to ensure










the public interest.



that the criminal Bar has a


"We think that there may be

sustainable future. There are,


better ways of arranging for

and will remain, challenging

to face tough decisions in

the payment of fees in the

times ahead. We cannot alter

making savings in public

most complex cases than

that, but we must address

expenditure. The Ministry of


them. By doing so I believe

Justice has not been immune

scheme, so we welcome the


from those difficult choices.

Ministry's announcement of

strong and independent Bar

But legal aid barristers who

the opportunity to re-consider

which is properly valued for

are working at the front


its unique contribution to the

line of public service, often


"The Bar has consistently

in difficult and demanding


opposed the Government's



deeply unpopular plans to

often found themselves at the

developed an alternative GFS


cut once again the fees paid

sharp end of those decisions.

Plus scheme some years ago.


This has been reflected up



"In the meantime it is up to

take this opportunity to move

and down the country on

previously, a deferment in

each barrister what work

forwards, by engaging with

each of the circuits. It is


they do. The Bar Council

the reviews which have been

hardly surprising that, after

everyone to take stock of the



announced today, resuming

successive waves of cuts to

outcome of the independent

revised rates approved by

normal working relationships

legal aid, barristers have felt

review of criminal advocacy

Parliament last autumn some

with our partners in the

demoralised and devalued

by Sir Bill Jeffrey. We have

barristers may be unwilling

criminal justice system and

when faced with the prospect

always been willing to look at

to undertake work on these

calling off any further days

of having to bear the brunt of

ways of improving criminal

cases. That is a matter for

of action. We can do so in the

the highest cuts anywhere in

proceedings with a view to

them. We will respect their

confidence that our voice has

the public services.

streamlining procedures and

right to make that decision.

been heard."













following of




administration of justice.



"That is why, in the interests building high

sustainable quality

representation, have





relationships. the

for Crown Court advocacy. we





legal should


First4Lawyers forms partnership with Exchange Chambers as clinical negligence expansion gathers pace First4lawyers has become the first claims management company (CMC) to form a partnership with a set of chambers, amid plans to grow its clinical negligence service to customers and lawyers alike. The agreement with leading northern set Exchange Chambers is the first of several steps by First4lawyers to increase its capabilities in clinical negligence work. The marketing collective is in the process of growing its panel of specialist clinical negligence law firms and also has plans to create the first TV advertisement dedicated to this serious area of law. The partnership with Exchange Chambers will give law firms on the First4lawyers panel access to the expert advice of counsel when screening difficult cases,

while Exchange Chambers will usually be the first port of call for panel firms seeking advocates. Led by well-known QC Bill Braithwaite, the clinical negligence team at Exchange Chambers boasts a wealth of expertise in handling the most severe catastrophic claims. It has four other silks, supported by over 20 juniors. First4Lawyers head of business development Chris Rodgers says: “The number of clinical negligence claims is rising fast, meaning an increasing number of CMCs are looking to muscle into an area they know little about. This is a dangerous trend. There is an urgent need for ethical companies like First4Lawyers to show they have the confidence of the legal profession and ensure that potential claimants get the best possible advice from

the start. “In our view, augmenting our panel of expert solicitors with some of the best clinical negligence barristers in the country should achieve both of those goals.” Tom Handley, Director of Chambers at Exchange Chambers, says: “Working with First4Lawyers is a good fit all round. They are experts in helping the victims of medical negligence find the right expert solicitor for their case, while our team has extensive experience acting for claimants in complex, high-value clinical negligence matters. About First4Lawyers For six years’, First4Lawyers has been the driving force behind successful personal injury and clinical negligence law firms. Operating as a genuine marketing collective, the firm’s exacting standards

consistently claimants.



High-impact marketing campaigns, including a hugely successful TV campaign fronted by sports personality, turned TV presenter, Andrew Castle, a vigorous approach to vetting and customer services, delivered by an expert customer team, and a guiding principle to deliver a truly ethical and effective service for claimants seeking access to justice, ensures First4Lawyers is the most trusted brand in the claims market. The company has won the Personal Injury Awards’ Claims Management Company of the Year for the past two years and operates a zero tolerance policy on fraud.

myBarrister Partners with leading search firm for the Bar, Hewetson Shah myBarrister, the leading online find-a-barrister service, is partnering with Hewetson Shah LLP - the Bar Council’s exclusive Service Partner for Legal Search & Recruitment, to further build on the established direct-access barrister platform. Hewetson Shah will now play a pivotal role in the growth of myBarrister, acting as an ambassador for direct access to the Bar, promoting the value and benefits of the service. myBarrister has been live since June 2013 and is now moving quickly into its next phase of development. The service offers barristers

access to a significant flow of direct enquiries from businesses and individuals. Ronald DeKoven, CEO of myBarrister, comments: "The website went live in June last year and since then strong and consistent growth has proven our business model. We’re now moving to the next phase in the development of myBarrister and are focused on significantly increasing the number of member barristers on the site. “We are confident that working closely with Hewetson Shah will enable us to achieve this goal and establish myBarrister as the leading direct access portal in the UK. Hewetson Shah have

unparalleled contacts within the legal sector both here in the UK and internationally, and we are certain their influence in the market will be of real benefit to our business move forward.” Guy Hewetson, one of the founding partners of Hewetson Shah, added: "We have been involved in myBarrister since its inception and we believe this to be the only credible and proven direct access portal to the Bar. It is widely recognised that the two key areas of growth for the Bar lie in direct and international instructions. “We have noticed an increase in demand for barristers to

be instructed directly and consequently an uplift in barristers being trained to accept direct instructions. We believe myBarrister to be a very timely offering for a market that demands a commercially viable route to the Bar." Hewetson Shah has six lead partners, including an exSenior Clerk (with 25 years' experience) previously with 20 Essex Street and magic circle set Essex Court Chambers, and an ex-Senior Clerk (with 45 years’ experience) who more recently was the former CEO of St Philips Chambers, one of the largest chambers in the UK.


Statement From Bar Leaders on Very High Cost Cases The leaders of the Bar, who represent barristers in England and Wales, have published the following joint statement: Very High Costs Cases (VHCCs) are the most substantial, complex and difficult cases to be tried in the Crown Court. They are cases where the trial is expected to last more than 60 days. Skilled and experienced advocates are required to present these cases. In April 2013 the Government announced its intention to cut the fees paid to advocates conducting VHCC cases by 30%. We opposed this proposal, as did many others. The cut was introduced with effect from December 2013. In a debate in the House of Lords on 11 December 2013 all speakers opposed the cut,

including Lord Faulks QC, who is now a Minister of State at the Ministry for Justice. Lord Faulks QC said: “these further cuts really threaten our justice system”. Lord Faulks QC added, in relation to the criminal justice system, that: “Its reputation, hard-won as it is, is now at serious risk.” Each advocate who had signed a contract to undertake a VHCC case was presented by the Government with a choice: either to accept a 30% cut in their fees or to terminate their contract. They chose to terminate their contracts. Since then, we understand that no barrister has signed a new contract to undertake a VHCC at the reduced rates. We stated on 27 March 2014, on the day we

reached agreement with the Government, and we repeat: • Whilst it is an individual choice for any barrister as to what work they choose to do, there is no objection, in principle to barristers undertaking VHCCs. • There is no reason why barristers who want to work on VHCCs should not do so. Nicholas Lavender QC, Chairman of the Bar Council Nigel Lithman QC, Chairman of the Criminal Bar Association John Elvidge QC, Leader of the North Eastern Circuit Sarah Forshaw QC, Leader of the South Eastern Circuit Andrew Langdon QC, Leader of the Western Circuit Paul Lewis QC, Leader of the Wales and Chester Circuit

Andrew O’Byrne QC, Leader of the Northern Circuit Mark Wall QC, Leader of the Midland Circuit 1. Further information is available from the Bar Council Press Office on 020 7222 2525 andPress@BarCouncil. 2. The Bar Council represents barristers in England and Wales. It promotes: • The Bar’s high quality specialist advocacy and advisory services • Fair access to justice for all • The highest standards of ethics, equality and diversity across the profession, and • The development of business opportunities for barristers at home and abroad.

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For more information about STEP call +44 (0)20 7340 0500 or visit to download an application form This route is available in England and Wales only

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Law Society says the benefits of family law changes will be undermined by legal aid cuts The benefits of speeding up the way that the family law courts work will be undermined by cuts to civil legal aid, the Law Society said.

and Punishment of Offenders Act 2012 is leading to more delay.

The changes will speed up court processes for dealing with issues arising from divorce and separation, and for taking children who are at risk into local authority care. However the fact that more and more people are representing themselves in the family courts as a result of civil legal aid cuts introduced in the Legal Aid, Sentencing

• Restrictions on the use of expert evidence, requiring judges to have regard to the impact of delay on the child when deciding whether to permit expert evidence. • The creation of a single Family Court for England and Wales which should operate more efficiently for court users. • A 26 week time limit

The main changes which came into effect in April include:

for completing care and supervision cases, to speed up the process of finding a permanent placement for a child. A judge will have the discretion to extend cases by up to 8 weeks at a time if necessary. • Child Arrangements Orders’ in place of ‘residence’ and ‘contact’ orders. • A requirement to attend a meeting to find out about mediation before making an application to the family court in disputes over money or the upbringing of children. The Law Society has played a

key role in developing these changes with government and the family judiciary. Law Society President Nicholas Fluck said: “The Law Society supports these changes, but the problem for many separating and divorcing couples is getting access to legal advice to help them through the court process, or to find alternatives to court. The cuts in legal aid for family law have put people off from seeking advice and support from solicitors who can explain where they stand and what their rights are.

Briefed: A Platform for the Modern Professional to Cut the Hours out of Admin Briefed is the story of a barrister using digital technology to solve a problem her colleagues face every day, that could just as easily have come from a different industry. Orlagh McGahan was running a successful practice but was drowning in the office work that most people don’t see behind any legal case. The modern barrister must be not just a lawyer but also a good office administrator, as well as being under increasing demand to provide excellent customer service. There had to be a better way to handle the admin. Orlagh couldn’t find one. So she built it instead. Briefed is an online case management platform for barristers and their staff to manage most of the admin behind their cases. Those mountains of paperwork can now be accessed digitally, and new documentation can

be created and sent swiftly using template content. Tasks and appointments, such as court appearances, are easy to manage. The system also looks after other parts of the job, including fees and even CPD points. Critically, it brings these functions together in one place, linking paperwork with events and fees and so on, when for most barristers they are probably all still disconnected. It’s also easy to customise, such as by adding new template content. Briefed is secure, cloud-based and mobile, so barristers can now do their work in what used to be down-time – waiting outside courtrooms, in airport lounges and taxis. An outsider to the industry might assume that for the respectable legal professional the admin was someone else’s job. But barristers are largely like any independent businesspeople, tasked with managing their own back

offices, usually in the unpaid hours. And having a little experience of barristers’ chambers from a previous life, I’ve seen the skyscrapers of case notes and the scraps of paper with scrawled lists of hours worked and people to call. Besides the need to for self-management, Orlagh described a confluence of further issues that amplify the need for an application like Briefed at this time. The whole legal industry is tightening its purse strings. Funding for legal aid has dropped. Barristers are under increasing competition from solicitors and the new role of the solicitor advocate. Clients are demanding more transparency on the work their barristers are doing for them. Generally, too, connected technology is underpinning all sectors and becoming instinctive to everyone. This is a good time

to put down the fountain pen, leave the dusty photocopies and move into the cloud. In launching Briefed, Orlagh McGahan has become the first Northern Irish barrister to be permitted by the industry to operate another business. And by working closely with the Bar Councils of Belfast, Dublin and London, the application is the first of its kind to be promoted at the top level of the Bar. There is an opportunity here for Briefed to become a standard tool in a more digitally-savvy legal industry. But the case management functions provided by the platform could have wider applications too, not just for other legal professionals like solicitors. Anyone needing to manage complex paper trails and client rosters might benefit from Briefed in future. Although Orlagh admits her “heart will always be with the barrister market”.

the barrister

and the occasional well-known p.1 journalist -- from crowding Middle Temple Hall almost to capacity to hear The Honourable Justice Stephen Breyer, Associate Justice of the Supreme Court of the United States, deliver the ninth annual Dame Ann Ebsworth Memorial Lecture. And what a lecture it was! The South Eastern Circuit sponsored the event and it was introduced by Sarah Forshaw QC, the Circuit Leader. The subject was ‘Judicial Independence’, with particular emphasis on the rule of law. With his engagingly informal, yet no-nonsense manner, Breyer revealed, among other things, any number of historically significant anecdotes and insights into pivotal events, specific cases and judicial decisions which influenced the course of American history, not to mention world opinion, whilst cementing the concept of judicial independence. Take, for example, the case of Bush versus Gore. That’s Al Gore and George Bush. Remember them? It was of course George Bush who eventually became President but that particular election in 2000 was a close-run thing. You may also recall the issue of the ‘hanging chads’ spewed out by presumably faulty voting machines which imposed a giant question mark over the final result of the election. The split among the American electorate was 50:50. It was about a month before the great American public, as well as the world, knew who exactly had been elected president. With such inconclusive results, apparently unprecedented in American history, it became the responsibility of the U.S. Supreme Court to make the final decision – and indeed they did – and the rest is history. Obviously and inevitably, as Breyer reminded us, the decision was unpopular with half the U.S. population. But as he pointed out, ‘there was no rioting in the streets.’ The rule of law – and public

respect for the rule of law – prevailed. In such a situation, he said, 311 million Americans have to be convinced of the value of following the judges’ decisions, even if they are unpopular. Going further back into relatively recent history, Breyer touched on the issue of racial segregation in the southern United States, declared ‘unconstitutional’ by the Supreme Court in 1954, but with no immediate result. ‘Nothing happened,’ he said, until the attempt to desegregate schools in Arkansas in 1957, which floundered in the face of defiant, almost fanatical opposition led by the then state governor Faubus. ‘I control the State Police,’ he declared -- and according to any number of reports, ‘black kids walked away in front of the Press.’


Supreme Court. ‘The result,’ he added, ‘was an integrated society imperfect to this day… accomplished by the judges, yes, and by other people.’ If anything, these events and their results do prove that societal change really can be brought about by legislation, even though the actual implementation of it may prove appallingly tough.

All of which led Eisenhower, the then President, to declare -- equally defiantly -- that ‘we have to do it’ and sent paratroops from the 101st Airborne to escort black children into the previously all white school. The schools were then shut and for a time, nobody got educated, until eventually the schools were re-opened under a new Board of Education who collectively said, ‘back to school.’

In offering such illuminating and illustrative glimpses into American judicial history, Breyer spoke with the authority of erudition and experience. Born in 1938 in San Francisco, he received a BA in Philosophy from Stanford University, a BA from Magdalen College, Oxford as a Marshall Scholar and a Bachelor of Laws (LL.B) from Harvard Law School. In 1967 he became a law professor and lecturer at Harvard Law School, specializing in administrative law. Before his nomination to the Supreme Court, he served in a number of roles, including assistant to the United States Assistant Attorney General for Antitrust and interestingly, as special prosecutor of the Watergate Special Prosecution Force in the early 1970s. He has also written an excellent book on “America’s Supreme Court” which I reviewed a while back.

‘Something had been started by those paratroopers,’ said Breyer on this historic chain of events initiated by the

While still teaching at Harvard, he also served as a professor at Harvard’s Kennedy School of Government. His


the barrister

It is worthwhile for readers of ‘The Barrister’ to check out the South Eastern Circuit’s website for information on other forthcoming lectures and events in future and if you are a barrister in the south east, you might consider joining the Circuit. Also, you won’t forget, will you, that next year is the 800th anniversary of Magna Carta, as Breyer and no doubt the entire American Bar Association would amiably but firmly remind you. Magna Carta was a rich theme which ran throughout his address.

appointment to the Supreme Court by Clinton followed the retirement of Harry Blackman in 1994. His biographical details reveal a number of other academic achievements and also that he was the second longest serving junior justice in the history of the Supreme Court. Appointed by a Democratic president, Breyer’s approach to law has been described in such terms as ‘liberal’ and ‘pragmatic.’ He is a judge who regards the U.S. constitution as ‘a beautiful thing,’ but certainly a thing that ideally should be scrutinized as to its purpose and its consequences. One of the Court’s most controversial decisions has been on the issue of abortion rights on which Breyer has consistently voted in favour. He does not look with favour, however, on the proliferation of guns, or on capital punishment. Breyer parried pointed questions from the floor with the ease and the caution of the established senior judge. Of course, he gave no specifics on the matter of judicial independence which would have disappointed the keenest jurisprudents. ‘How do you reconcile the principle of judicial independence with an elected judiciary?’ he was asked. ‘I can’t,’ was his terse two-word reply, much to the amusement of most of his audience, who shortly afterward were reminded

of the significance of Magna Carta. ‘Those barons at Runnymede really started something,’ he might have said, but didn’t. Instead he quoted from Rudyard Kipling’s poem, ‘At Runnymede.’ ‘Magna Carta’, he then remarked, was the first ever attack on the ‘Right Divine’, that is the divine right of kings to, as it were, rule the roost with the authority of the Divinity Himself. It took a long time from the thirteenth century onward -- and considerable blood and tears to consign this annoying concept to history (we hope) to the point where we at least have a constitutional monarchy which the world, even the Americans, might envy.

The Breyer speech sets out a special precedent establishing and confirming the orthodoxy of judicial independence which remains a cornerstone of our democratic constitutions in both the U.S. and U.K. For many present it was a legal history lesson in how to set out the judicial stall without ever appearing partisan - Breyer did just that in a memorable performance. A SHORT ADDRESS BY THE NEW “CHIEF” ON A VERY BIG ISSUE: ‘RESHAPING JUSTICE’.

The South Eastern Circuit and Dame Ann Ebsworth

And then we heard from Lord Thomas a month later. It has not been the norm for a Lord Chief Justice to deliver the type of short address I saw given on 3rd March 2014 at a meeting at Freshfields of ‘JUSTICE’ - a cross party legal organisation chaired by the splendid Baroness Helena Kennedy who never fails to impress with her passion over legal issues.

Breyer’s lecture was a fitting tribute by the South Eastern Circuit to Dame Ann Ebsworth, who, had she lived would have approved of its spirit and content. Dame Ann Marian Ebsworth was a distinguished barrister and judge who in 1992, became the sixth female High Court Judge and the first to be assigned to the Queen’s Bench Division. She also taught advocacy at Gray’s Inn and for the South Eastern Circuit and additionally, at an annual course at Keble College Oxford.

JUSTICE was established in 1957 and became the U.K. section of the International Commission of Jurists one year later. The organisation covers representatives from all the main political parties as it seeks to advance the fair administration of justice and to persuade decision-makers by the strength of its legal research. It has a reputation for being far-sighted, independent and practical in its approach to legal reform hence the invitation to Lord Thomas on the latest

the barrister

initiative known as ‘Reshaping Justice’. Thomas had two purposes with his address which can be read in full on the judiciary website. He said: “The first is to make clear that our system of justice does need reshaping to deal with the fundamental change that is occurring in the role of the State. It is retrenching. The budget for justice is being reduced substantially. We must ensure that our system remains able to maintain the rule of law by administering justice effectively, speedily and impartially in this new age. The second is warmly to welcome the re-shaping of Justice and to say how very encouraged I am that Justice in its re-shaped form can and must play a vital role in reshaping our system of justice.”

The speech then went into some detail and some journalists picked themes afterwards mainly on the possibility that some form of inquisitorial procedure might be introduced and that a two tier Crown Court might be established. All well and good but the real issue was that the Lord Chief Justice had actually come out of the shadows to talk about the future of the courts and the way we do our business without damaging the concept of “judicial independence” or talking political money. It was a brilliantly professional performance, like Breyer, with absolutely nothing given away except the contents of the speech itself, and deft handling of questions. What I liked of these two events, apart from the sharp intellect of both men, was the presence throughout of some forward thinking. Breyer and the Americans still revere Magna Carta in a way we British do not - that may change next year. Thomas went further (some would say he had to) by looking at the very basis of how we administer Justice


in the future. He urged us: “we must do what the Evershed committee did not. We have to keep an open mind even on radical options”. Exactly! This is when the ears pricked up and reference was made to the Judicature Acts and the length of time it took the Victorians to reform the administration of justice in the nineteenth century. We do not have the privilege of that length of time for reform this time round, Thomas might have said, as he sailed close to the financial wind (he had to) but the words ‘information technology’ appeared in paragraph 14 of his speech. This was what we wanted to hear after years of computer neglect in the Law! Since, “Reshaping Justice” has now been introduced as a research topic by a number of organisations who have sent up groups to review how we are going to administer Justice in future. Time is not on our side unlike Victorian England so I came away from both events gratified that our model of “judicial independence” remains intact but I was delighted to see a much more modern approach as to how we will do Our LLM in Employment Law is the perfect qualification our legal business for legal practitioners who wish to expand their in future whilst knowledge and understanding of UK employment law judicial orthodoxy and its development. There is no need to take a career break to study with us; our LLM in Employment Law is is preserved.

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the barrister

p.1 “ban” and discuss whether such

necessities to purchase, books become

receive parcels; the difficulty occurs as

an unaffordable luxury.

there are differing conceptions as to the

assessed and reviewed in a jurisdiction

As the debate has continued the

status of prisoners’ rights.

which has yet to firmly establish the

argument has broadened to assert that

Liora Lazarus brought our attention

status and extent of prisoners’ rights.

in reference to the aims of educating

to this issue in her 2006 Modern

Changes to the “Incentives and Earned

and rehabilitating prisons, the “book

Law Review article “Conceptions of

Privileges Scheme” were introduced

ban” simply cannot be a good thing.

Liberty Deprivation”. Lazarus stated

in April 2013, under Prison Service

Mark Haddon, author of The Curious

that we “must determine what is



Incident of the Dog in the Night-Time

contained in the custodial sanction

are only two exceptions to the rule;

stated that it is a “counterproductive”

as a sentence as distinct from what

a one-off parcel which can be sent

policy, “gratuitous and mean-spirited”

is entailed in the administration of

following conviction and, in exceptional

which “fails to acknowledge the vital

the custodial sentence.” She noted

circumstances, parcels may be sent at

part books play in educating and

that it is “imperative to distinguish

the discretion of the prison governor.

rehabilitating prisoners.”

between the liberty and rights lost as a

Cook referred to the changes as part

Furthermore, Geoffrey Robertson QC

consequence of the custodial sanction,

of an “irrational punishment regime”

has argued that the government could

and that lost as a consequence of

stating that ‘”punishing reading is

be acting illegally in inflicting “cruel

prison administration.” She refers to

as nasty as it is bizarre”. There has

and unusual punishment” on literate

this as the necessity to recognise the

been an outpouring of criticism from

prisoners. Robertson, joint head of

“key distinction”.

authors and academics including Mary

Doughty Street Chambers has stated

The “primary importance of liberty”

Beard, Carol Ann Duffy and Philip

that Chris Grayling “has no power

demands that any rights limitations

Pullman. The reaction has been hugely

to impose additional punishment on

are justified. The context in which a

emotive, with Pullman stating that

prisoners over and above that which is

prisoner’s rights are limited must be

the prohibition was “one of the most

imposed by the courts. The action has

explicit: “A failure to make explicit

disgusting, mean, vindictive acts of a

nothing to do with prison security or

in which context the limitation of

barbaric government”; Duffy said it

any other legitimate purpose."

a right is or is not justified would

hurt the "soul of the country".

From a literary and liberal background

not only undermine the rigour of the

The particulars and realities of the PSI



proportionality exercise, it would result

have been widely debated. Criticisms



in unsatisfactory legal opacity” writes

of the changes have been rebutted

and emotional arguments, and to


with clarifications that there is in fact

review whether the PSI conflicts with


no “book ban”; prisoners remain able



implementation of PSI 30/2013 have

to purchase items from the NOMS

legality tests, we must examine both

failed in this regard by entangling rights



the purpose of imprisonment and the

lost due to administration with rights



status of prisoners’ rights.

lost due to sentence. The prohibition

governor and access to prison libraries

The imposition of this policy deprives

on parcels has been justified by the

remains. Those advocating the removal

prisoners of the right to receive parcels

administrative concern of smuggling

of the “ban” have countered that prison

outside of the exceptions provided. To

contraband items: “it is inconceivable

libraries are often badly stocked and

assess the legitimacy of this policy we

that we could impose the additional

inadequate, with understaffing leading

must first ask what rights prisoners

operational burden on our staff of



have to receive parcels, and what

carrying out detailed assessments of

library visits. The Howard League

limitations those rights are subject to.

an unlimited number of parcels coming

notes that an employed prisoner is

It has never been stated that there is

into prisons” and in reference to the

paid approximately £8-10 a week. With

a fundamental right for prisoners to

curtailment of rights as part of the

changes can ever be properly




List by


or the

through prison

outrage to

is move







the barrister



As Lazarus emphasises without guidance

imprisonment constitutionally defined”;

only be rewarded to those prisoners

on the distinction between personal and

the German Prison Act was passed in

who engage in "proper rehabilitative

residual liberty “the English conception

1976 to give expression to the above


of the prisoner’s legal status is not


In implementing the PSI Chris Grayling

sufficiently robust to fulfil the principles

Meanwhile the approach to the prison

muddles two differing aims and fails

of legality and proportionality,” meaning

system in England and Wales is politically


changes in policy cannot be properly


Without recognising in which context

assessed or challenged.

interest and to the fluctuations of party

a right is limited it is impossible to


review whether the curtailment of the















politics. Courts in England and Wales



courts have developed two lines of cases

right is legitimate and proportionate.

the need to have “guidance as to the

“one which has tacitly accepted and

Grayling’s statements are not altogether

purpose or rationale of both the penal

built upon the key distinction, the other

surprising since, as Lazarus states, in

sanction and the purpose of prison

operating on an implicit conception of

England and Wales “there is no clearly

administration.” Lazarus compares the

the indivisible of the offenders’ liberty.”



jurisdictions of Germany and England.

Whilst Daly, a case concerned with

limitation of rights as a result of the

Germany has the advantage, not merely


imposition for the criminal sentence and

of recognising the divisible nature of

correspondence saw Lord Bingham state

limitation of rights during the day-to-

prisoners’ rights, but additionally of

that a custodial “order does not wholly

day administration of prisons.”

having the “resocialisation purpose of

deprive the person confined of all rights



outlines the

that key





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the barrister

The above highlights the difficulty

the purposes of the prison system.



Lazarus suggests that, “the primary


importance of liberty demands that


legislature and courts deliver stable and

defined purposes for both prison

clear frameworks which determine the

administration and for imprisonment

exercise and extent of its deprivation. A

would define how changes and reforms

new Prison Act clearly delineating the

could be challenged and reviewed

prisoner’s legal status in England would

in future. As Lazarus states “If we

be a crucial advance in this process.”

were to decide that the purpose of

Whether a new Prison Act is introduced,

prison administration was primarily

or whether courts begin to take a more

punitive, there would be little room

consistent approach regarding divisible

to argue against severe limitations of

rights, steps need to be taken, without

prisoners’ residual liberty and human

progress prisoners’ rights will remain

rights within prisons.” Alternatively if

undefined and subject to arbitrary and

the purpose of prison administration

fluctuating limitations.






forward emotive changes.


enjoyed by otherhe citizens. Some rights,

was tailored towards rehabilitation

perhaps in an attenuated or qualified

then “the justification for a punitive

form, survive the making of the order”

style of prisoner administration, and

Nilson countered that “it is not so easy

its consequent restrictions on prisoner’s

to define the test of what are the natural

rights, would be limited.”



Whilst there is ambiguity regarding

and these are certainly susceptible

the purposes of imprisonment and

to change as a result of changes in

the purpose of prison administration

attitude to punishment.” Wavering from

there is no purpose against which

commitments to rehabilitative justice to

the proportionality of a measure can

stronger ‘prison works’ mantras, “there

be assessed. Furthermore without a

is no fixed political or legal consensus

definite view of what prison is for there

as to the nature and purpose of the

is no guidance for which reforms and

sanction of imprisonment or, for that

changes should be made.

matter, of prison administration within

For now the campaign to overturn

the English system.”

the changes continues to grow, with












which provides books to prisoners has

movement of British academics and

stated, “From our experience there is


a constant battle between punishment


and rehabilitation and the two are at

shifting political beliefs on the aims of

loggerheads in prisons. The punishment

imprisonment and a tendency to echo

is the loss of a person’s liberty otherwise

the public interest in policy changes,

called imprisonment. Rehabilitation or

it may be that the campaign succeeds

resettlement should be trying to turn a

in reversing the changes. However a

person’s life around by convincing them

reversal of the changes in this instance

of the error of their ways. The banning

would not detract from the necessity

of books seems to just be an additional

for the entrenchment of the divisibility

punishment to us.”

of rights and a definitive decision to






government ban”.


Maleha Khan Creative Copywriter, Justis Publishing Limited.

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

the barrister

Acquiring Chambers Premises As with any business, premises issues are of fundamental importance to a Chambers. Not only is premises one of the largest overheads, but it can also play an important role in attracting and retaining members. By Scott Leonard, partner in the Corporate and Commercial team at Russell-Cooke LLP


ets are also increasingly recognising that their premises can play an important role in their branding and many see modern, high specification meeting rooms and other client facilities as essential in this context. As a result, there has been a trend over the

last decade or more for Chambers to seek new premises which better accommodate their needs.

Having made the

decision to move, the next question is whether to lease new premises from a third party landlord or for Chambers itself to acquire a property. Many have concluded that they would prefer to be their own landlord. Not only does this allow for a greater degree of control over the premises but it also provides members with an opportunity to invest in commercial property at potentially attractive rates of return. Purchasing a property can be a challenging process from getting consensus for the purchase in the first place, to determining the appropriate structure to use and the logistics of the move. This article looks at the preliminary decisionmaking process, suggests a typical structure that might be used and discusses some of the associated issues that will need to be considered. THE DECISION TO PURCHASE There are two distinct issues that need to be considered when deciding whether to purchase a property. The principal consideration is for Chambers as an entity. Is there a commercial rationale for Chambers moving from



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its current premises (with all the

(who can be individuals or companies),

associated costs and disruption) and, if

who hold the property on a bare trust

so, is the premises under consideration

for the members of Chambers who

suitable for Chambers’ needs (both


currently and taking into account any

price, in shares proportionate to their

future expansion)?

contributions. The trustees borrow part

If that test is passed, the next question is whether the property concerned stacks up as an investment proposition,





of the purchase price from a bank with the borrowing being secured by a first legal charge over the property.

taking into account the potential rental

The property is leased to Chambers

yield and prospects for future capital

at a commercial rent supported by a


professional valuation. Each investor

If the response to both questions is positive, the next question is whether there is sufficient appetite amongst the members to fund the purchase. Somewhere between 30 to 50 per cent of the purchase costs will need to be

is entitled to their proportion of the rental income, which may be used to discharge their share of any borrowing. Each investor also indemnifies the trustees against their share of all trust expenses.

applicable). The structure is flexible enough to accommodate both SIPP and non SIPP investments. In fact an investor can hold part of their share in a SIPP and part in their personal capacity and may even transfer units between the two (on commercial terms and subject to compliance with the other requirements of pensions legislation). There are annual limits on pension contributions and a lifetime limit on the size of an individual’s pension funds. There are also restrictions on the maximum amount which a SIPP may borrow. Whilst attractive for many, investing through a SIPP may not be suitable for all and it is important that

raised from members’ own resources

The bare trust is tax transparent and

members take independent financial

(with the balance being borrowed

has no separate legal personality. A

advice for deciding to do so.

from a bank). Occasionally the project

trust deed regulates the relationship

will fall at this hurdle with members

between the trustees and the investors.

reluctant to commit to a property

Amongst other things, the trust deed

Finding a lender who understands

investment of this type.

will deal with the sale and purchase of

Chambers’ requirements, is able to

shares in the property and set out what

offer competitive terms and move

happens in relation to their share if a

quickly enough to meet the transaction

member leaves Chambers.

timetable is essential.

A SUGGESTED STRUCTURE A bare trust is a popular structure for purchasing Chambers property.


Naturally Chambers’ existing bankers

Using this structure, the property is


will often be the first port of call, but

purchased by two or more trustees

The tax transparency of a bare trust

they are not always the best option

makes it attractive to hold a share in

and it is prudent to talk to a number

the property through a self-invested

of potential lenders to establish what

personal pension scheme (“SIPP”).

terms are available in the market

The main advantage of doing so is that all rental income and capital gains (on disposal of the share) will be tax free in the SIPP. Using a SIPP can also assist members with raising the necessary funds, either by transferring an existing pension fund to their SIPP or by making a pension contribution. The net pension contribution will be boosted by tax relief at 20% which is reclaimed by the SIPP (with higher rate tax relief being claimed on the investor’s tax return, if

and get a feel for which bank is best equipped to deal with a transaction of this type. Commonly lenders will propose that Chambers moves its banking to them as a condition of the loan. However Chambers are often reluctant (for good reason) to disrupt their banking arrangements and most banks are prepared to treat the property purchase in isolation if pushed. The bank will be looking to ensure

the barrister


that the property represents adequate security and that the loan repayments can be comfortably serviced from the rental income. This will be “stress tested” to ensure that there is adequate rental cover should interest rates increase over the term of the loan. In deciding upon the lender, clearly the interest rate, arrangement fee and other fees charged will be significant factors. However it is also important to seek a commitment from the bank to a lengthy loan term, ideally 10 or 15 years to reflect the term of the lease. Banks will often seek a right to review the facility after a relatively short period of say 2 or 3 years. This should be resisted if

lease with potentially significant rental

and do fall, and those participating must

possible as refinancing can be a costly

and other liabilities over the term, it is

accept that risk).

and time consuming process.

a good idea for Chambers to review the

VAT VAT is another potentially thorny issue. Commonly the property to be acquired

arrangements in place for discharging Chambers’ costs and indemnifying those (often the Head of Chambers) assuming liabilities on behalf of Chambers.

By ensuring that all member of Chambers contribute to their use and enjoyment of Chambers (through their contribution to the rent) and that investors receive a commercial return on their investment,

has been opted to tax and the purchase

This is likely to involve a review of

Chambers can ensure that everyone,

price is therefore subject to VAT. In order

the Chambers’ constitution to ensure

including members who do not own a

to recover the VAT, the trust will need to

that the indemnity arrangements are

share in the premises and investors who

opt the property to tax and register for

adequate and holding a Chambers’

have left Chambers, is treated fairly and

VAT. This will also mean that the trust is

meeting to approve the lease terms. It is

that Chambers enjoys the benefits of the

able to recover any VAT which it incurs

not uncommon for Chambers to put in

move for many years to come.

in connection with the purchase and any

place specific indemnity arrangements

subsequent refurbishment.

in respect of liabilities under the lease,

The registration process itself is an administrative task and not unduly burdensome. However, if VAT is payable there are two knock-on consequences. The first is that Stamp Duty Land Tax is payable on the VAT element of the purchase price in addition to the price itself (tax on tax!). Secondly, although the VAT may be reclaimed it will need to be funded in the short term, which causes a cash flow issue which needs to be addressed. CHAMBERS INDEMNITIES As Chambers will be entering into a

in addition to the standard constitutional

Scott Leonard is a partner in the


Corporate and Commercial team at Russell-Cooke LLP and has advised


many Chambers in connection with

Many Chambers have taken the plunge and purchased premises and for most it has been extremely successful, providing modern





investment return and the flexibility of being their own landlord. An essential element of a successful purchase is to ensure that the move works both for Chambers as a practice and also quite separately as an investment proposition (although of course property values can

their property purchases.


the barrister

Rationing Forensic Science The commoditisation of the forensic market in England and Wales means that police Casework Submission Units select forensic services from a menu of largely fixed-cost options. If their administrators are not aware of the potential strengths and limitations of forensic analysis, and submissions are under extreme financial scrutiny, the question of science- versus cost-led investigation arises. Are robust strategy decisions being made, or is cost the defining factor? Is forensic science being rationed to the detriment of the court? By Jo Millington BSc (Hons) MSc PGCert MIABPA, Senior Forensic Scientist, Manlove Forensics Ltd


mpartiality, independence and

a transition from public service to

potential to be stifled when budget is

integrity are the foundations

commercial enterprise that is difficult

limited and when budget is a defining



for practitioners who have spent a

factor in decision making it becomes







significant proportion of their careers

increasingly difficult to maintain best-

qualities that evolve during

in the ‘old world’. In some eyes the

practice. If this state is to continue,





new horizon is colonized with limit and

then investment in training is urgently

science and we arguably donate them


imbalance and we should take care to

required so that individuals tasked with

to our profession for free.

navigate it properly.

making these decisions are informed in

It is our

personal responsibility to nurture and

terms of what the forensic science can

sustain them and we entrust them to

It would be futile to present an argument

deliver, given the questions that are

a system which we hope will protect

against change but we must ensure

being asked, and where their limited

and develop them. Historically, these

that undue restrictions are not placed

resources would be best directed. It

qualities and the ‘civil service ethos’ fit

on the provision and scope of forensic

is also necessary to ensure that those

extremely well with the way in which

investigation and that quality is not


forensic services were commissioned

undermined. These restrictions can be

services are not being asked to run

in the UK. However, since the closure

‘budgetary’, for example because spend

before they can walk. Whilst graduates

of the Forensic Science Service (FSS),

on an offence type may be capped (volume

may offer a cost-effective solution in

and in a transitioning market, we have

crime events rarely command unlimited

the delivery of time and cost limited

a professional responsibility to ensure

resources) or because the instructing

services, their effectiveness in the UKCJS

that these virtues are protected, that an

administrator has been asked to reduce

is only resolved if their contribution is

unbiased approach is encouraged and

the number of items being submitted for

appropriately validated and certified.

that forensic practitioners are able to

‘costly’ examination. Or the restrictions

Is it appropriate to call as a witness an

continue to deliver robust science to the


expert who has never had court training

UK Criminal Justice System. Reasonable

relative inexperience of practitioners

expectations we might assume, but has

who are being asked to screen items

the market changed so radically that it is

for a particular evidence type before


no longer practical to retain this system?

submission, without necessarily having













or set foot inside a court room? the


compilation would



a in


a wider awareness of forensic potential.

conjunction with a laboratory-based

science through the national forensic

These may be generalisations, but if only

practitioner. More frequently it is being



a fraction of decisions are influenced

developed in forensic submission units

to present a significant challenge to

on this basis, the broader rationale for

in consultation with a readymade menu

forensic provision. The approach that

forensic submission and examination

of forensic options and costs. This means

it encourages can sit uncomfortably

requires review.

that the experience that was relied upon








forensic scientist and it can require

to support effective decision making is Effective strategy decisions have the

being diluted, or worse, lost from the

the barrister


market. This approach develops a self-

of a non-partisan forensic strategy.

will undergo an informed review in light

fulfilling rationale that forensic tests

It is arguably impossible for police

of changing scenarios, or in preparation

do not offer value for money because


for trial and because of this, the defence

misdirected requests have generated


inconclusive or failed test results. A clear

which investigate the prosecution and

primary examinations and presenting

example is the prominence of tests that

defence hypotheses; a) because their

prima facia evidence to the court.

are directed towards the recovery of

investigations are unavoidably offender-

Arguably neutralising any perceived

DNA. Surely DNA will tell us ‘who did it’?

centred and b) because the work that they

cost-efficiencies that were sought at the

Recent rulings by the Court of Criminal

procure is subject to extreme financial

start of the process. Is this acceptable?

Appeal for England and Wales, including

scrutiny. This leads inevitably to the

Scientific provision in the defence market

of Dlugosz, have demonstrated that DNA

situation where in order to investigate


is not the Holy Grail of forensic science

an allegation of kicking and stamping to

industry benchmark accreditation has

as originally thought, and the more

the head of the complainant only a left

been achieved by a number of providers

appropriate question is not necessarily

training shoe is submitted for forensic

who offer defence services, the results

‘who could it have come from’?, but

analysis. It is also the reason why

that they generate are not compelled

‘how did it get there’?

complex forensic findings are distilled

to be disclosed and in almost all cases

into one line summary reports for

are not subject to independent re-

The development of police in-house

charging purposes and it is why forensic

testing or review. Surely all forensic

services, which has been accelerated

examinations are conducted in a staged

providers should function at the same



















approach and stopped at the first sight

level of accreditation, proficiency and

market and the dissolution of the FSS,

of a ‘positive finding’. There is very little


increases concerns over the delivery

cogent evidence that a forensic strategy

Whilst the preference is that all defence

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_061NU_137462A01 (A4Single).indd 1

07/05/2014 11:47


the barrister

been sexually assaulted at his home. The complainant stated that after leaving a bar in the early hours of the morning, she had no recollection of anything until her next memory of being in an underpass in the morning. This raised the issue of whether or not she would have been capable of giving consent. DNA matching that of the defendant had been detected on samples taken from the complainant and the case went to trial. The defendant stated consent and that the complainant had worn an item of his clothing at times during the evening, including when they were intimate, which she denied. The defence reviews should be done by regulated

and efficiencies are more difficult to

instructed an examination in order to



achieve, justification to finance these

investigate if there was any evidence

industry standard competence and are



‘ancillary services’ become increasingly

that the defendant’s clothing had been

working in an appropriately (UKAS)


worn by the complainant as alleged. A

accredited facility, funding pressures

With collaboration and training in

sample of material from the inside back

(including those conferred by the Legal

what our discipline can offer, Casework

was recovered in order to establish if

Aid Authority) and a variable profile of

Submission Units and other users will

DNA matching the complainant, which

providers from lone minds to collectives,

be able to make an informed decision

may have transferred had she worn the

means that the market is as vulnerable

based on what forensic providers can

item, was present. The DNA analysis

to disparity as the market which serves

actually deliver. From there we can

indicated a mixture of DNA consistent

the Crown. It is interesting to note that

reverse the trend of rationed forensic

with the defendant (the routine wearer)

the LAA cap remuneration rates for a

science being presented to the court

and the complainant having contributed.

forensic scientist to review and comment

and focus on delivering cost-effective

Furthermore, hairs in keeping with

on the scientific findings generated in

answers to case-relevant questions.

those of the complainant were observed.

a case at a rate which is largely below

Although this evidence could not assist

the rate that Crown laboratories charge

Forensic analysis cannot provide the

in progressing the issue of consent,

to copy (or allow access to) the records

wider context for deliberation, it cannot


that the scientist has been instructed to

direct a jury and should not be taken



in isolation. When forensic science is

the findings were more likely if the



the and

framework probabilities,

utilised we must be absolutely satisfied

complainant had worn the clothing than

If forensic provision is to be spread



if she had not. Circumstantially, the

across the whole market, and conducted

presented is complete, fit for purpose

new evidence was significant and it was

by all players within it, then the field

and in context with the whole case

successfully argued in court that she

needs to be levelled and investment

circumstances: the whole truth and

had been a willing participant and not

must be targeted evenly in all aspects.

nothing but the truth. In my opinion,

incapable of giving consent. Proceedings

This includes in the framework on

the new forensic market has not yet

were discontinued.

which robust science depends: research,


development of services and people,

to demonstrate that forensic science

Streamlined Forensic Reporting – a case

collaboration and continued learning.

submitted to the Crown for consideration


None of these elements form part of

is any of these things.

In August 2011, the shooting of Mark








the procurement framework or the

Duggan sparked violence in London

Legal Aid framework, and as costs are

Fit for purpose testing? - a case example

which eventually spread to almost every

squeezed, at different rates depending

A male was charged with the rape of

major city in England. During this time

on the sector that is being employed,

an individual who alleged that she had

hundreds of individuals were charged

the barrister


During the civil disturbances hundreds

approximately two years after the case


entered the forensic process. It was







employed not


only then that the UKCJS was furnished

unreasonable to consider that they

with all of the scientific information on

may have been injured as a result, by

which to consider their case. Although

treading on broken glass for example.

the strengths of Streamlined Forensic

In a forensic context, the presence of

Reporting are apparent, arguably the

animal DNA could be significant. Its

limitations of this process, in a forensic

non-disclosure is also significant and

context, are less well understood.

could be due to a number of issues which are developing in the forensic market. Firstly,

with crimes related to the rioting, over half for burglary. One of these involved the Commercial Burglary of an electrical store in South-West London. During the examination of the scene a blood sample was recovered from the floor of the warehouse. This blood was submitted for DNA profiling and a DNA match conveyed to the police in the form of a Streamlined Forensic Report (SFR), an abbreviated document which is currently being rolled out nationwide to deliver forensic results to the court and fast. The individual was charged and court proceedings began. DNA in a forensic context can provide extremely

Author: Jo Millington BSc (Hons) MSc Senior

reported as fact and any interpretation

Forensics Ltd

of what that finding could mean in the

Post: MFL, Unit 12, The Quadrangle,

context of the case is not presented.


In addition, the chain of analysis is

Oxfordshire, OX12 9FA





The sample was recovered by a Scenes of Crime Officer with no confirmation of whether blood had actually been present in the stain. Although it was said to have ‘looked like blood’, it wasn’t tested






photographs the




available, were


none sufficient

resolution to allow the shape of the stain to be investigated. In other words, it wasn’t possible to determine how the

evidence of association. The match itself

stain may have been

in this case seemed to provide a black and

originally deposited:

white framework for conviction, except


for two things. Firstly, the defendant had

onto the floor or

worked in the warehouse and felt that

transferred through

his DNA could have been legitimately

contact. Was it paw-

present, in saliva for example. Secondly,


all of the information present in the DNA


result had not been disclosed in the SFR,


specifically that there were indications


of animal DNA in the sample, potentially

the court until the

from a dog.




for elaboration. Scientific results are










not provide a framework that allows



presence DNA


of was to










the barrister

What is a Sukuk? The word sukuk has become popularised – or at least better known than it was before at the English Bar and in broader legal and financial circles – by the government’s announced intention (in October of last year) to issue a first sovereign sukuk denominated in pounds sterling in an amount of about £200 million this year or next. By Scott Morrison, Door Tenant, Temple Court Chambers (London) Associate Professor, Akita University (Akita, Japan)

A newly familiar instrument



Some observers consider ‘sakk’ as the

Walmsley in Sohail Jaffer, ed. Islamic

etymological origin of the contemporary

Investment Banking, Euromoney 2010 at 47).


conventional instrument, the cheque.

under way led by HM

The Dictionary of Islamic Finance (Aly



Khorshid, ed., Euromoney 2011 at 41)

this end have been in


traces sukuk to the Umayyad period



Definition of sukuk


(661-750 CE) of early Islamic history,


with a variety of expert

when soldiers and civil servants were


groups, consultations and feasibility

paid in the form of sukuk redeemable

Bahrain – the Accounting and Auditing

studies conducted under the auspices

for cash and commodities such as grain.


of the government since then. After



based of



Manama, Financial

Institutions (‘AAOIFI’) -- formulated

several years of concluding that such an



the most widely cited contemporary

issuance would not be value for money,

governments of Bahrain (2000) and

definition (‘the AAOIFI definition’) of

the plan is one among several measures


sukuk as

designed to promote the UK (and the

pioneering sovereign sukuk. In 2004,

City of London most especially) as a

the German state of Saxony-Anhalt

Certificates of equal value representing

world centre of Islamic finance.

completed the first sovereign sukuk


issuance in Europe. Dubai (United

tangible assets, usufruct and services (in

In addition to the aim of encouraging

Arab Emirates), Saudi Arabia, Kuwait,

the ownership of) the assets of particular



Qatar and Pakistan among others have

projects or special investment activity

these measures and the sukuk issue

also closed large sovereign or quasi-

[Standard 17(2)]

in particular have the potential of


attracting inward investment and of

Mohamed in Ariff, Iqbal, and Mohamad,

Three principal attributes of sukuk

inviting further access to liquidity and

eds., The Islamic Debt Market for Sukuk

emerge from the AAOIFI definition.

foreign investment in the foreseeable

Securities, Edward Elgar 2012 at 29-35).

First, as a certificate, sukuk are a kind

future by means of corporate issuances

Part of the appeal of the UK sovereign

of security -- like a share or a bond.

of sukuk as well as continued and

sukuk is the possibility of tapping

Some types of sukuk can be traded on

increased listing of foreign sukuk on the

liquidity pools abroad – particularly but

a secondary market, although others

London Stock Exchange.

not only in the oil and gas wealthy states

cannot. (Frequently investors buy and

of the Gulf.

hold until the maturity date due to the





modern (2002)


instantiation each









‘Sukuk’: a genealogy

limited availability of sukuk secondary The LSE has listed at least 25 sukuk

markets worldwide.)

In Arabic the word ‘sukūk’ is the plural of

issuances with the first corporate sukuk

‘sakk’ – which means legal instrument,

listed there in 2006 (Tabreed Finance)

Second, ownership – as a result of a



and the sovereign sukuk of other

true sale/purchase. The ownership is

Wehr Dictionary of Modern Arabic).

countries not long thereafter (Gillian

fractional and each individual certificate




the barrister


on the Islamic finance and banking industry due to the added difficulty and lead-time required to locate assets (that are also lawful). A further reason for the insistence on ownership in a sukuk issuance is a result of Islamic law’s preference for commerce and the collective participation in a commercial enterprise. In addition there is a disapproval of the commodification of money (which is instead deemed a medium of exchange only) and a ban on trading in debt. Interest-based debt transactions are unlawful and charging or paying interest is anathema at Islamic law.

represents an equal part of the whole.

6 Actors' Benevolent.pdf 6 Actors' Benevolent.pdf

6 Actors' Benevolent.pdf

be excluded as the

there is a broader definition of asset that goes beyond a physical or tangible asset

of a sukuk. 6 Actors' Benevolent.pdf



(for example, an airplane), to include

evidence is mixed

rights of use (for example, lease rentals)

and opinion divided

and services or investment activities. The asset may be a single asset or a





emphasis on asset basing (or backing)

for general operating costs or financial

in Islamic financial

needs; this requirement strengthens the


claim to being asset-based.








pornography, pork or gambling. For this reason some scholars would consider for example a resort or a restaurant or the hospitality industry broadly conceived haram due to the associated sale and consumption of alcoholic beverages. Some scholars would also consider arms and industries associated with military equipment and procurement off-limits. Depending





interpretation a substantial number of assets and associated industries would


Patron: H.R.H. The Prince of Wales Patron: H.R.H. The Prince of Wales 09:09


Patron: H.R.H. The Prince of Wales

Patron: H.R.H. The Prince of Wales Patron: H.R.H. The Prince of Wales


…a helping hand …a helping hand for actors since for actors since 1882… …a helping hand 1882… …a helping hand …afor helping actorshand since for actors since for actors1882… since 1882… 1882… acting profession is


‘The public’s perception of the ‘The public’s perception of the acting profession is that we are glamorous and well paid but the image that we are glamorous andof well paid but the imageis …apublic’s helping hand ‘The perception the acting poses – both to the of fame and fortune is not the reality forprofession most of ‘The public’s perception of the acting profession for actors since ‘The public’s perception of the acting is is of fame and fortune is not the reality for most that we are glamorous andthe well paidprofession but theof image the profession and for some show will not go 1882… local and to the that we are glamorous and well paid but the that we are glamorous and well paid but the image the profession and for some the show will not go fortune is not thewho reality most ofimage onof– fame thoseand actors and actresses arefor suffering of fame and fortune not thethe reality forsuffering most of goof ofthe and fortune issome not reality for most global financial on –fame those actors andisfor actresses who are profession and the show will not hardship because of illness, accident or old age. the and some thethe show will not go go hardship because offor accident orare old age.not the profession and for some show will onprofession – those actors and actresses who suffering system. The perception asset ‘The public’s of the acting profession isillness, on – those actors and actresses who are suffering on –fund those actors and actresses who areold suffering hardship because of illness, accident or age. that we are glamorous paid but the image The was founded to provide financial support requirement and and well hardship because illness, accident or old age. The fund was founded to provide financial support hardship because illness, accident ormaking old age. of fame and fortune is not thefor reality for most ofofof such individuals. Please help them by the emphasis on forThe such individuals. help themnancial by making fund was founded to provide support the profession and for some the show will not go Please a donation or remembering the fundfiin your will. was founded Please to provide fithem nancial aThe donation or remembering fund in your will. limiting andactors sharing forfund such individuals. help by support making on – those and actresses who are suffering The fund was founded to the provide financial support Thank you.’ for such individuals. Please help them by making Thank you.’ a donation remembering the fund in your will. hardship because of illness, accident or individuals. oldorage. risk disallows a high for such Please help them by making Penelope Keith, C.B.E., DL a donation or rememberingPenelope the fundKeith, in your will.DL C.B.E., Thank you.’ President a donation or remembering the fund in your will. degree of leveraging Thank you.’ President Penelope Keith, C.B.E., DL The fund was founded to provide financial support Thank you.’ -- of the sort that DL Dame Penelope Keith, C.B.E., D President for such individuals. Please help them by making 6 Adam Street, London, WC2N 6ADPenelope Keith, C.B.E., DL President 6Tel: Adam Street, London, WC2N contributed the 020 7836 6378 Fax: 7836 6AD 8978 a donation ortoremembering the fund in your will.020 President Tel: 020 7836 6378 Fax: 020 7836 8978 E-mail: 6 Adam Street, London, WC2N 6AD Thank you.’ global 2007-2009 E-mail: Registered Charity No. 206524 6 Adam Street, London, WC2N 6AD Tel: 020 7836C.B.E., 6378 Fax: 020 7836 8978 Penelope Keith, DL Registered Charity No. 206524 economic crisis. Tel: 020 7836 6378London, Fax: 020 7836 8978 6 E-mail: Adam Street, WC2N 6AD President Registered Charity No. 206524 E-mail: Tel: 020 7836 6378 Fax: 020 7836 8978 From another Registered Charity No. 206524 that Islamic finance

Assets that would be unlawful (haram)

09:09 09:09



used for particular projects rather than

The asset itself must be lawful (halal).

09/02/2011 09/02/2011

Patron: H.R.H. The Prince of Wales

pool of assets. Sukuk are intended to be

Assets and ownership


6 Actors' Benevolent.pdf 1 09/02/2011 09:09 6 Actors' Benevolent.pdf 1 09/02/2011 09:09

potential asset base Third, sukuk are asset-based. However

1 1


perspective the WC2N Registered Charity No. 206524 6 Adam Street, London, Tel: 020 7836 6378 Fax:Actors 020 7836 8978Ad.indd 1 Benevolent 9/12/05 16:24:10 asset requirement Actors Benevolent Ad.indd 1 9/12/05 16:24:10 E-mail:

Registered Charity No. 206524 also acts as a brake Actors Benevolent Ad.indd 1 Actors Benevolent Ad.indd 1

Actors Benevolent Ad.indd 1 Actors Benevolent Ad.indd 1

9/12/05 16:24:10 9/12/05 16:24:10

9/12/05 16:24 9/12/05 16:24:10


the barrister

In addition to the ban on interest (riba),

ex post. These scholars should also have

accessed 17 March 2014) in October

speculation or excessive uncertainty

a role in reviewing and approving the

2012 (Patrick Jenkins and Camilla

(gharar) and gambling or games of



Hall, “HSBC’s Islamic closures highlight

chance (maysir) are also prohibited.



dilemma” Financial Times 7 October

Risk and uncertainty are inevitable in

organisations including the AAOIFI and

2012) although it remains an active

any transaction so gharar is (arguably)

also (in Malaysia) the Islamic Financial

participant in the global sukuk market.

best interpreted as a ban on excessive

Services Board (‘IFSB’) have published

levels of risk and uncertainty.

guidance on the attributes and the



underpinning sukuk








Sukuk are not infrequently equated with

-- who are typically constellated as a

bonds producing the appellation ‘Islamic

shari’a board, and employed by an

As a capital market overlay, sukuk

bonds.’ This is a helpful shorthand for

Islamic financial institution.

sit atop a contract or a series of

those familiar with conventional finance;

nominate contracts. There are fourteen

furthermore the economic function of

The corporate governance of Islamic

contract types that have received wide

sukuk can mirror that of conventional


recognition both by the AAOIFI and

bonds. However scholars of Islamic law

challenges, as well as regulatory issues


would maintain that the equation is not



Each contract type may be used singly

strictly accurate as the requirement of

Authority (‘FCA’) must deal. For example

or combined with the other contract

assets and ownership render sukuk

possible divergence between shari’a

types as the underlying commercial and

equity, not debt, instruments.

boards could be exploited in a form of

contractual basis for a sukuk.










arbitrage, undermining the perceived Shari’a compliance

shari’a compliance of the issue (and of

The sequence of consultation papers and

the sector more broadly). Depending

responses published by HM Treasury (in


upon the incentive structures in which

collaboration with the Debt Management

authorised in Islamic banking and

shari’a scholars are embedded, conflicts

Office and with the Financial Services

finance claim consistency with the

of interest are also possible. In addition

Authority as it then was) took up for








to specialising in Islamic commercial


jurisprudence (fiqh al-mu’āmalāt). This


jurisprudence shari’a scholars must

types out of the fourteen (“Government

central tenet of the business enterprise

possess a sufficient understanding of

sterling sukuk issuance: a consultation”

is commonly summarised as that of

modern economics, financial law and

November 2007).

‘shari’a compliance.’

UK regulations.




The first of these is a purchase and lease It should be noted, however that shari’a

Advising HM Treasury on the Sukuk

is not a comprehensive legal code; nor

back agreement (sukuk al-ijara). The second is a partnership contract (sukuk

could it be considering its pre-modern



al-mudaraba.) In both cases a trust (a

origins. In the context of contemporary

been made about the composition or

Special Purpose Vehicle; hereinafter








personnel who will comprise the shari’a

‘SPV’) acts as the issuer of the sukuk

better understood as an ensemble of

board for the sovereign issue. However

certificates. The SPV is bankruptcy

principles and accepted practices the

the Treasury has selected Linklaters to

remote from the originator -- in the case

application and enforcement of which

advise on it, together with HSBC Bank

of this sovereign issue, the government.

requires some flexibility, adaptation,


as well as interpretative acumen and

role for Government on UK first-ever

jurisprudential skill.

Sukuk issue” The Lawyer 31 January



wins Sukuk al-ijara

2014). The selection of HSBC is open

Lease rentals are the source of returns

Hence the UK sovereign issue, as with

to some question since HSBC appears


other shari’a-compliant transactions,

to be exiting the Islamic financial

government identifies an asset or pool

must be vetted by Islamic legal scholars



of assets to sell to the SPV (‘the asset’).



retail division HSBC Amanah in the

The SPV gives the investors the sukuk

principles to the particular transactions

UK and several other countries (bank

certificates in exchange for capital which

ex ante, and who monitor compliance

notice at

funds the purchase of the asset from the













the barrister


government. The SPV then leases the


asset back to the government on pre-

operates. The government buys the

Door Tenant, Temple Court Chambers

agreed commercial terms.

investment asset and the SPV transfers


the proceeds as the redemption payment

Associate Professor, Akita University

to the holders of the sukuk.

(Akita, Japan)

The government also enters a purchase





agreement with the SPV, undertaking to buy back the asset at maturity (‘the

Scott Morrison Conclusion

promise to purchase’). The rental payments for the usage (usufruct) of the asset by the Government (with the government being responsible for its maintenance) are transferred by the SPV to the sukuk holders as periodic distributions -- the equivalent of the periodic coupon payments of a conventional bond. At maturity the promise to purchase operates. The asset is sold back to the government and the SPV transfers the purchase funds to the investors as the redemption payment.

From a low base Islamic finance has grown rapidly over the last decade or so. Although its products -- including most prominently sukuk -- are still novel, there is a critical mass of practitioners and professionals possessing increasing familiarity and with it the ability to better meet the legal, regulatory, accounting and technical challenges that remain. Whilst starting small the initial UK sovereign sukuk is a measured and careful first step in increasing and diversifying the scope of financial services in this country. It is a promising if incremental development.

Sukuk al-mudaraba In this contract type investors purchase the sukuk from the SPV. The SPV transfers the proceeds to the government, which acts as the entrepreneur and which invests that capital in a shari’a compliant investment




asset’) on terms set out in the sukuk issuance prospectus. In addition to the mudaraba agreement between the government and the SPV, the government also acts as obligor furnishing an undertaking to purchase the investment asset at maturity (‘the purchase promise’). In a pre-agreed ratio the government transfers the returns from the investment asset to the SPV as periodic profit

Chambermade would  like  to  personally     thank  all  respondents  for  their  recent     notifications  of  interest;     the  response  has  been  overwhelming         Further  panel  registration  announcements     will  be  made  shortly

distributions. The SPV in turn channels the distributions to the investors -- in the equivalent of the periodic coupon payments of a conventional bond.


the barrister

To disclose or not to disclose: That is the age old question Dexter Flynn, an English Solicitor in the litigation department at Voisin in Jersey, looks at a recent case before Jersey’s Royal Court concerning disclosure of trust documents to a beneficiary.





the Court in effect to bless their

role in the decision making process as


refusal; the disappointed beneficiary

to how they discharge their own core


may make a challenge to the trustees’

obligations”, as this would not afford

beneficiary is an issue

negative exercise of their discretion to

adequate protection to beneficiaries.

that vexes most trust

or the beneficiary may simply

The Royal Court referred to the judgment



seek to invoke an original discretion

in In re Rabaiotti (1989) Settlement

daily basis. The Royal Court has recently

in the Court (Breakspear -v- Ackland

[2000] JlR 173 in which the Judge talked

given further assistance in this “knotty”

[2008] EWCH 220).

in terms of the Court, not the trustee,



In the case entitled In the Matter of the


y Trust [2014] JRC 027, the Court had

Breakspear that, as with any other

Rouse -v- 100F Australia Trustees ltd

blessed the decision of the trustee (the



[1999] 73 S.A.S.R. 484, approved by

“Trustee”) of the y Trust (the “Trust”)

powers, trustees are not obliged to

Rabaiotti, that the discretion of trustees

to refuse disclosure of information

provide reasons for their decision as to

is “a limited one which must always be

concerning the Trust to a former

whether to disclose trust documents to

limited by the general duty of disclosure

beneficiary who had requested the

beneficiaries and that it is not a matter

by a trustee”.

information for the purpose of assisting

for criticism if trustees do not either

The Royal Court held that, once the

her husband’s claim against the settlor

give reasons or apply to the Court for

issues of disclosure of trust documents to

of the Trust. The Court’s blessing was

directions if minded not to accede to

a beneficiary is before the Court, it will

given on the basis that it would have

a beneficiary’s request for disclosure.

exercise its own discretion, not merely

reached the same decision if exercising

Unless the trustees make an application

review a decision
of the trustees. The

its own discretion, as it was clear that the

to the Court seeking to surrender their

Court expressly wished to leave open

information was sought by the former

discretion, the decision will be that

the question of whether this jurisdiction

beneficiary with a view to proceedings

of the trustees and it will stand in the

should follow the decision in Breakspear

which might involve an attack upon the

absence of a successful challenge of the

to a future case where full argument can

assets of the Trust, which would not be

decision or invocation of the supervisory

be heard.

in the interests of the beneficiaries as a

jurisdiction. Where the matter is referred


to the Court, the Court will exercise its

Dexter Flynn, English Solicitor, Voisin

The application raised the issue of

own discretion.

Law Firm

the function of the Court; namely

However, the Royal Court considered

whether the Court was exercising its

that, whilst it is well established that



information a
















having a discretion
to refuse disclosure

 in and to the Australian court’s view in







the Court should not usurp the role of

England and Wales in 1995, has been

intervening in the administration of a

trustees, its function may arguably be


trust or merely considering the decision

quite different when it comes to the

for over 15 years. A respected and

of the trustee.

enforcement of trustees’ fundamental

experienced commercial litigator Dexter

A disclosure issue may be presented

obligation to account to beneficiaries

has been involved in many high profile

to the Court in four ways: the trustees


cases over the years representing clients

may seek to surrender their direction

conferred on them by a trust instrument

to the Court; the trustees may, without

and that “intuitively it does not seem

surrendering their discretion, invite

right that ... trustees can have a central







from numerous jurisdictions.


the barrister

How the Use of Technology Can Lessen the Impact of Increasing Regulation of Chambers By Helen Ford, Managing Director, Bar Squared Ltd




upfront as a package and then install

require additional services or increased


it onto your computer. Software as a

storage capacity, they are immediately


Service users, however, subscribe to

available on demand;

legal profession in

the software rather than purchase it,

recent years, none

usually on a monthly basis. Applications

more onerous than

are purchased and used online with

updates are immediately available to

files saved in the cloud rather than on

existing customers, so everyone may

individual computers.

benefit from the latest enhancements;

and its staff. Many may soon struggle

SaaS is a scalable platform so, as the

• Device

to fulfil their duties and comply without

requirements of chambers increase,

applications can be accessed via any

increasing their reliance on technology.

services can be expanded without need

internet enabled device, such as mobile

for significant capital expenditure and

phones and tablets. This is a relief for

How will chambers react to mergers,

long lead times. Likewise, in times of

users who don’t always use the same

consolidations, pressures on existing

consolidation, services and fees can

device or operating platform;

staff and further regulation?

be reduced as required, resulting in


has myriad


those relating to regulation.



changes have massively increased the administrative burden on Chambers


Updates are automated – online



Remotely Accessible - rather

options are available to them?

immediately cost savings.


There are a number of reasons why

individual computers, an application

SaaS is beneficial to chambers:

can be accessed from anywhere with an

Historically, companies were required to buy, build, and maintain their IT infrastructures



costs. Software as a Service (SaaS) is a model in which applications are hosted by a third party service provider and made available to chambers over a network, typically the internet. SaaS is often referred to as softwareon-demand and utilising it is akin to renting software rather than buying it. With traditional software applications you





than being restricted to installations on

internet enabled device. •

Usage is scalable - if chambers


the barrister

Document Management

of documents can be deposited and

tracking and saving of email into case

distributed in a secure, automated

management systems streamlines the

The increase in Direct Access work


administration of case files ensuring

brings with it additional administration


requirements as chambers communicate

to barristers involved in the case.

against the correct file and reduces

Encryption can be enforced throughout

the administration burden in achieving

the process.

this. In conjunction with the delivery












directly with the client on all aspects of a case.

Document management and

archiving becomes a key requirement and technology can be utilised to ease the burden. There are numerous online document storage and sharing offerings (e.g. Huddle and Dropbox) but the need for integration with chambers management software,





paramount. Emailing large files can be extremely hit and miss, as at any point in the process the sender, service provider or recipients’ email system may restrict the size of file that can be delivered and it could be some considerable time before

of files direct to participants in a case,

the sender is aware that the files have In circumstances

Notification of the uploading of new

this technology alone can save many

where delivery is affected this could have

documents may be automatically sent to

hours each day in copying and pasting

serious consequences as work is delayed

those participating in the case (clerks and

information from emails into case files.

or vital information is unavailable to a

barristers) and distribution undertaken

barrister in court.

without compromising security, also

Email is tracked by automatically adding

saving costs of administration, couriers

case reference tags to letters or emails

and DX.

generated from the case management

not been received.

Sourcing an integrated application that runs with your chambers management software is the ideal solution, as access

software enabling resulting replies to Email Tracking

be uploaded automatically into the

and security can be controlled via the

document management area of the

main software application, invitations


sent to the client (Direct Access client,


Local Authority etc.) to participate in

email traffic of larger files, there is no

There is no doubt that the administration

accessing their own private document

doubt that email will continue to be a

burden wrought on chambers can be

management portal .

major communication tool. Automated

eased by using technology to assist in

Large bundles


utilisation systems




relevant case.



the barrister

those tasks that can be automated and

providers to apply for Legal Aid and

otherwise of the upload.

by scheduling delivery of information

manage certificates.

Providers and

will obviate the need for double entry;

direct to barristers, cutting out manual

counsel can use the system to submit

the only additional information required

processing of reports, for example.

claims. CCMS also allows users to scan

will be supporting documentation that

and attach electronic documentation

should be uploaded to the CCMS case

associated with their application or






system to schedule the delivery of aged

This upload


debt, work done and payment summary






reports on a regular basis leaves your

Whilst this introduction will reduce the


administration team free to turn their

burden on the LAA as chambers input

administrative burden but also provides

hand to those tasks that cannot be

information into CCMS, rather than the

a central repository of information that

achieved without their skill and personal

LAA case worker, it will most certainly

can be utilised to confirm compliance,


increase the burden in chambers as

reduce budgets and provide up-to-date,


real-time information to members and





option other than to manually enter

Apps for your mobile device are also available so that appointments added via. Chambers’ management software

all claims into CCMS, having already entered the information into their case management software.

can be viewed on your mobile phone


or tablet.

Diary appointments are

technology can make a huge difference

synchronised between the chambers

- by introducing a bulk upload facility

software application and your device


within seconds and, given security

provide functionality where claims may

access, appointments may be created on

be generated in chambers management

the mobile app and will synchronise to


the chambers management software.

create a file of information in XML

Time recording may also be utilised via mobile devices and this also reduces the administration burden by minimising










Creation of each claim will

format, that will be stored securely until such time that all the claims generated are uploaded to CCMS (typically daily).

the amount of re-keying of information

The upload of the XML files will be

onto fee notes/invoices when billing.

achieved by accessing CCMS using the username and password issued by LAA. The logged in user will then identifying

Bulk Upload

the files of information that should be The LAA is introducing online ways

uploaded and save the information in



CCMS. The rules engine in CCMS will

Certificated legal aid. The client and

then validate the files of information and

cost management system (CCMS) allows

report back via its portal the success, or











the barrister

Budget constraints in the legal system reduces the quality of evidence that appears before the courts By Matthew Jackson, Director, Senior Forensic Consultant and Expert Witness at Athena Forensics.


lmost monthly the









attention new


process. The presence of an image does


not necessarily mean that the user had

press release from

techniques by the authorities will allow

CEOP or the National

for the identification of such material on



the Internet which would, in turn, lead to

Having been involved in the examination

relating to unlawful

investigations by those authorities, often

of computer evidence, predominantly

images and the individuals attempting

resulting in the seizure of computers

within legal cases, for over 12 years and

deliberately created it.

experiencing the expectations of working both within a Hi-Tech Crime Unit of a Police Force and as an independent computer




Expert for Athena Forensics, I have seen the increase in use of digital evidence within criminal cases and the changes of the quality of the evidence that is relied upon over that time and, as a result, there is a continual movement from an original ingrained process whereby an Examiner would manually review the material in front of them to automated software based processes where the Examiner simply has to wait for results to be produced for them. Almost






unlawful images are based upon the to find such material. The Government

and/or mobile phones from a suspect’s

initial findings of the examination of the

has also recently publicised a policy in


computer evidence by Police. Clearly, these initial findings are critical to the

which Service Providers automatically block the ability for the user to access pornographic




proviso that, rightly or wrongly, this will prevent children from accessing such material and will prevent adults,

However, the mere presence of an

decision as to whether charges are

unlawful image on a computer or mobile

made against an individual as well as

phone is commonly becoming the only

what Charges are brought. However,

evidence used to form criminal cases

the level of detail to which evidence is

involving such material or to support

initially examined by Police is frequently

other charges. Significant issues, such


if they were so inclined, from accessing

as, how they had been created are being

unlawful material.

asked, if at all, far later in the court

As an example, due to budgetary

the barrister


constraints and to reduce the backlog faced by Hi-Tech Crime Units, it has become frequent for software named C4P to be used by Police forces. This software automatically scans all data on a hard drive and identifies images, thereby reducing the amount of manual work involved in completing the examination of a computer. Where such an examination may previously have involved the manual review of many thousands of images, this process removes that need by comparing images on a hard drive against a database of ‘known’ images (images previously identified by that Examiner) by the software and, in the event of a match, that image is highlighted as being relevant or unlawful. However, whilst the use of this software enables the ability to identify potentially unlawful material more quickly, there is still a need to carry out some manual tasks, including: i.

The review the material identified to confirm its

relevance. ii.

The requirement for the C4P database to be accurate

and correct. iii.

The images present on a hard drive will still require

review or material that is not contained within the C4P database will not be identified. It is apparent that consideration, other than the existence of the images, is not being fully conducted. Questions such as the location of the images on the hard drive, notably, whether they were located within system/hidden directories or whether they

Adaptability is a good thing. Right? Tailored LLM programmes

were located within user defined areas of the hard drive, the time/date of creation of them or the origins of them or any other number of possibilities are not asked. Therefore, individuals can be faced with charges that have resulted from the mere presence of images identified by automated software with no consideration or investigation as to the significance of those images by an Examiner. One such case was one that I was instructed in earlier this year. A significant number of images had been identified by the Prosecution within backup files on one computer of several that had been examined. The material had been identified through the use of C4P and the report findings and material based upon the results of the use of that software. No further action had been taken and no further investigation of the images or other files on the hard drive had been conducted. The images were

A change of direction can be good, but before you wiggle the wig over the teapot, lets look at some options. Southampton Law School offers a range of tailored LLM programmes in the corporate or commercial field; Maritime Law; Insurance Law; Crime Analysis or even a combination of these areas. So why not talk to Professor Hazel Biggs, Head of School, via email

or call our Student Recruitment Team on

02380 80599457. email:


the barrister

used to support other allegations that

6 months, after months of investigation


had been made against the Defendant.

by Police and Charges being brought,

that whilst some cases will be missed

that reconsideration has resulted in the

others will be brought about wrongly or

A review of the computer evidence

Prosecution case not proceeding even

incorrectly which, surely, simply moves

confirmed the presence of the material

before the computer evidence has been

the cost of rectification elsewhere within

that had been identified using the

disclosed to us.

the legal system.




C4P software and, whilst the content of a number of those images were

Due to the increased pressure on Police

highlighted as being questionable (e.g.

Hi-Tech Crime Units, further measures

the ages of the individuals and the


nature of the images themselves), the

evidence more quickly. For example, the

examination also revealed the presence

initial examination of evidence is now



commonly being conducted within local

pornographic images that were also

Police Stations by relatively untrained

contained within the same backup files.

Officers whose line of work is not

Evidence was also identified to confirm

normally the examination of computers

that those images had been copied to

or mobile phones.









the hard drive at the same time and had originated from the same source. The

Currently, it is normally the case that if

Charges relating to those images were

any evidence is identified on a computer


later dropped by the Prosecution prior

then it is then referred to the more

Forensic Consultant and Expert Witness

to Trial.

specialist department, however, clearly,

at Athena Forensics.

there is a danger that potential cases

0845 882 7386

Normally, the identification of evidence

will currently be missed and it would

requires that any evidence has been

not require too much imagination to

investigated in order to determine its


significance. Even, if the Defendant

would result in the additional work

accepts responsibility for the creation

being seen as unnecessary. This already

of images any number of processes can

occurs with the evidence retrieved

result in the duplication of images. For

from mobile phones whereby generic

example, different system processes

techniques are adopted which results,

on a computer can result in the files,

on occasion, with significant material


not being found.







duplicated which is then reflected within the Charges. The duplication of files on

Unfortunately, whilst there is a focus on

a computer is not necessarily a manual

highlighting, removing and identifying

action and can take place without any


user interaction and once properly

by authorities, those who face the

investigated can result in them being

challenges of examining and presenting

removed from the Charges, greatly

evidence within any cases that occur

affecting the sentencing outcome to

as a result and the lawyers themselves

reflect the actual actions and offences

are being driven to reduce costs in the

committed by that individual.

ensuing legal process. These budget





reducing attempts are already resulting The simple instruction of an Expert can

in procedures being accepted now that

cause the Prosecution to review their

were not previously and this will impact

findings and on occasion within the last

the presentation and investigation of




e-mail: m.jackson@

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Putting the client first – using client service to improve chambers’ standings Putting the client first: how are chambers measuring the effectiveness of their services and value of their people in terms of customer feedback / satisfaction and if the data is collected, is it being used to build / deliver better service offerings? By Catherine Bailey, Managing Director, Bar Marketing






organisation understand it, opening the


door to customer-centric change and



beginning appreciate

value in conducting proper client research and


improved performance. Net Promoter programmes are not traditional



programs, and simply measuring your

NPS does not lead to success. Chambers’

enthusiasts who will continue buying

will need to follow a full project of

and will refer others, fuelling growth.

implementations if they are to actually

drive improvements in customer loyalty

satisfied but unenthusiastic customers

and enable profitable growth.

who might be receptive to competitive

methodologies sets should be adopting



to help them understand their current

commitment, and the right business

position and improve upon it.

processes and systems in place, to deliver

unhappy customers who can damage

real-time information to employees, so

your brand and impede growth through

they can act on customer feedback and

negative word-of-mouth.

feedback. As a result, they are actively seeking out the opinions of their clients. The paths to collecting the data are varied, ranging from online surveys to telephone interviews and focus group discussions.

This article looks at what

It’s more than just a number Net Promoter® is both a loyalty metric and a discipline for using customer feedback to fuel profitable growth. It’s the basis of many client surveys and it’s really useful. However, it’s not all encompassing for chambers. Developed





Company, and Fred Reichheld, the concept has been embraced by leading companies worldwide as the standard for measuring and improving customer loyalty. The Net Promoter Score, or NPS®, is a straightforward metric that holds companies and employees accountable for










achieve results.

Promoters (score 9-10) are loyal









To calculate the Net Promoter Score

The good news is that many chambers


have the business systems in place to


deliver the majority of what is required.


How NPS works

Studies examining the NPS “loyalty

To implement the NPS process Chambers (or their representatives) would contact all their clients, past and present with an initial survey. The survey asks two simple questions: 1. Would

subtract from







effect” have shown that companies with the highest customer loyalty typically increase revenues at more than twice the rate of competitors. However, just knowing your NPS score isn’t enough. You need to build on the information



and understand how it can help you

Chambers to a friend of colleague?



Building on the NPS

How would you suggest we

improve our services to you?

Alongside the NPS questions chambers

has gained popularity thanks to its

The survey participants respond on a

should also be exploring additional

simplicity and its linkage to profitable

0-to-10 point rating scale divided into

market benchmark criteria including

growth. Employees at all levels of the

three groupings:

the amount of time clients have used


the barrister

barristers’ services this year compared

be improved and, finally, how they have

to last, and if they predict that this will

been improved.

increase or not in the coming years.

communication is complete without a

They should also seek out trends such

benefit statement. By this we mean the

as decreased external spend and detect

“so what?” test. For example, if a client

buyer behaviour patterns.


has said that they weren’t happy about

any client research should examine

the time it takes a set to respond to them

the primary criteria used when hiring

with a fee proposal writing to them and

counsel and also when not hiring

telling them that you’ve hired an extra


clerk will result in them thinking “so






Remember that no


competitive advantage. It’s also worth mentioning that when you do have clients who are avid promoters of chambers you need to be using them to deliver more than just a directory quote! Work with that client to network through other departments in their firm, promoting other practice areas for chambers.

You may also

have the opportunity to work with their clients; adding value for both of you in

in relation to the market is vitally

However, if you write to them and

their client’s eyes by presenting a ‘team’

important in order to identify over or

tell them that you’ve addressed their

solution to their issues.


concerns about turnaround times by



Clients are fairly


The closer the links you have with your


hiring a new clerk and that by doing

particularly if they can see that their

so this clerk will be able to respond to

opinions are valued and will lead to

them quicker meaning that they will

improvements, as this will directly

have a more accurate cost figure for

impact upon the service they experience

themselves and for their clients and that

in the future.

Questions examine the

as a result of the new person they won’t

quality of the advice received, the

be wasting their valuable time chasing

approachability of the team involved,

you for details, they can instantly see the

A free guide for Chambers

the resourcefulness of the clerks’ room

personal benefit of your actions and you

For further information and advice on

and how chambers can improve their

gain kudos. Your chambers’ reputation

how your set can increase your client

client experience, amongst others.

increases and so does the likelihood of

service download our whitepaper on

further instructions.

client service.

In short, the changes introduced by

Catherine Bailey, Managing Director,

chambers, provided they are properly

Bar Marketing

Interpreting the data Having gained a representative number of responses, sets are able to interpret the data in order to understand how they are currently perceived and how they may enhance their client service offerings. They are then formulating long-term plans which place the clients at the heart of their chambers. These plans should include on-going communications with the clients. Each of the NPS categories should receive a quarterly update. It has been proven that clients respond better if they have played a part in improving the services they receive.

promoters, the more you will grow your business and your profits. It will also have the added benefit of making life very difficult for your competition to get a foothold – and that can’t be a bad thing!

communicated, lead to increased client retention, increased instructions and increased turnover, all of which has a positive effect on profitability. An on-going process However,




this research need to be careful that they don’t fall into the trap of thinking that a one-off survey will do the trick. Increasing




client satisfaction is a continuous process of refinement. Clients’ issues will vary over time, as will the set’s service levels.

Therefore, it is very important to

Taking regular snapshots of the service

communicate with the clients on a

levels and clients’ opinions are essential

regular basis; informing them on the

if they are to keep their improvement

services to be improved, how they will

programmes on track and maintain a





and effective marketing services for chambers’.


the barrister

Considering the Cloud Given the downward pressure on fees in the legal sector, keeping a tight control on IT costs is increasingly vital for legal businesses. The ‘cloud’ could be a way of offering a more flexible approach to costs, and in some areas could considerably reduce the cost of providing services. By Paul Coote, Founder and M.D., Instant On IT



premise services, meaning on-site in

requirement for proven technologies,

taken bigger strides to

your buildings or offices, 2) private


date when it comes to

cloud services - which are being run

implementing a more cautious future-

the adoption of cloud

specifically for you, outside of your

proofed cloud services plan over a



building and 3) public cloud services

longer time frame.

sector is always more

- which are being run outside of your

cautious in using any new IT services,

building or office, but are not specific to

Cloud can be touted as cheaper than

but it is catching up. Many legal firms


running your own services and, for








some, this is true. In some respects, the

are already using services which would be now sold as ‘cloud’ - for example

Many organisations use a combination

Law Society guidance is very similar

many organisations use offsite backup,

of these three styles of services and our

to advice that could have been given

Legal Reference services, and many

belief is that, over time, the percentage

10-15 years ago when talking about

unauthorised products such as Dropbox.

running private or public cloud services

outsourcing of IT support: the decision

Attitudes in the sector are changing

will increase. This combination of IT

goes beyond cost. Hiring IT staff may

and, in April, the Law Society issued its

services is key to future strategy. Every

be more cost effective than outsourcing

latest practice note, which gives their

client is different and a blanket approach

in some instances but there are still

view when it comes to cloud computing

of all-in cloud services is not appropriate



for most established organisations.



strategic choose

reasons to



such as being able to focus exclusively

advice/practice-notes/cloud-computing/ Some of our more entrepreneurial clients

on key business strengths. IT continues

One great starting point for this note is

have very few on-premise services at all;

to have elements of scale that result in

that it helpfully gives definitions in terms

a VOIP phone handset, printer and coffee

reduced costs as the number of users

of what ‘cloud’ means. Cloud is not new;

machine are their token on-premise

increase. Many companies delivering

certainly companies were using the

services. Public services - such as Office

public and private cloud services are

concept in the early 1990s and being able

365 or Google Apps - provide them with

able to benefit from such economies of

to provide services on demand, which

the ability to share information and

scale as well as being able to deliver

can be scaled up and down, goes back

collaborate. These organisations have

strategic advantages for organisations,

further to mainframe delivery of services

no initial need for tailored applications

particularly when it comes to services

in the 1960s. What has driven its recent

or services.

such as email. The storage of everincreasing quantities of email, combined

success is the ability for companies to build and deliver services based on

However, in the legal sector, there needs

with backups, archiving, compliance

virtual infrastructure, combined with

to be a much greater understanding

and DR, mean that the cost of running

a widespread fast internet to connect

of where your data is, who has access

internal email far exceeds the cost of

companies and consumers.

to it and how to control it. IT planning

public cloud delivered services such as

and strategy does not start with a clean

Microsoft’s Office 365.

When we talk cloud services with our

piece of paper either. Legacy investment



in everything from phones, servers,

For custom-built or securely isolated

cloud model which includes 1) on-

software purchases, combined with a

private cloud services, these are unlikely





the barrister professional services sectors. Instant On IT are cloud specialists, with proven experience in this field for over 7 years. The company has developed an outstanding reputation for knowledge and quality of service over the course of the last 10 years. Their approach is founded on the principles of Integrity, Quality, Dedication and Flexibility. 0207 831 1923

to be cheaper than buying hardware,

brought with it new opportunities to lock-

software and services in the short-

in their clients. Take, for example, those IT

medium term. However benefits are

companies advocating cloud-based back-

gained from increased billing flexibility, as

up systems for email, there are limited

opposed to funding (and captialising) up-

ways to extract information from these

front, and the ability to take advantage of

largely proprietary systems. Therefore,

technology more quickly, which can result

if you have to keep your backups for 7

in significant competitive advantage.

or more years, your investment in these systems (or other PAYG Case Management

The similarities in guidance when it

or Diary systems) may have to continue

comes to reviewing cloud services or

long after the system is in fact needed.

outsourcing contracts will be obvious to many. Choosing the right partner is

In summary, the practice note issued by

critical, as is making sure your contracts

the Law Society recognises that the cloud

are well researched and have in-built

brings with it a great many advantages,

flexibility. IT is a fast-changing industry,

and the guidance does not deter its

and so are the companies within it.

adoption. If the right decisions are made,

5 year contracts may be suitable for

the cloud offers a great opportunity for

photocopiers or for public bodies but


seem excessive in terms of agile services

security and a more flexible approach to

where developments are more rapid.

costs. The key is navigating the options




available. Even where contractual tie-ins do not seem further





warrants growth

Author: Paul Coote, Founder and M.D., Instant On IT

of cloud has been partly achieved by software vendors changing to monthly

Instant On IT provides tailor-made IT

payments rather than upfront charges


and, for some IT companies, this has

to SMEs in the Legal sector and other




the barrister


Budding legal eagles have their day in court



Nigel Briggs, head of law at Notre Dame

Nigel added: “Through the mock trials

Dame Sixth Form College

Sixth Form College, said: “Learning


swapped the classroom

about law in a classroom is one thing,

students have been able to study topics

for the courtroom, when

but seeing how that translates in a real

and practise skills that we are unable to

world situation is completely different.

cover on the A-level syllabus, providing

The mock trial was a huge success,

them with the experience needed to

and it was great to see the students

help them decide if they would like to

The budding lawyers re-enacted a

developing their skills and knowledge in

continue their legal studies.”

recent trial in the law school’s mock

a fun and engaging environment.”



they took part in a mock trial at Leeds-based BPP

Law School.

courtrooms, with students playing the




Emma Blackstone, Pro Bono Manager at

parts of judge, witnesses, prosecution,

Prior to the mock trial the students also

BPP Law School, said: “We were really

defence and jury.

took part in a workshop run by BPP Law

impressed with the performance of the

School, which aimed to familiarise them

students that took part in the mock trial.

The aim of the day was to allow students,

with a number of court procedures and

Not only did they seize the opportunity

who are currently studying towards an

processes - including cross examination,

to develop their current knowledge and

A-level in Law, to actively practise and

how to play a witness and the impact of

skills, but many of them also showed the

develop the skills they are learning in a

opening and closing speeches.

natural confidence and ability needed to

realistic legal environment. The sessions were held as part of Ayshea



successfully pursue a legal career.


the law school’s acclaimed Streetlaw

barrister and tutor on the law school’s

initiative, which was nominated for a

Bar Professional Training Course, was

prestigious LawWorks and Attorney

also on hand to provide feedback on

General Student Pro Bono Award for the

the students’ performance, and answer

work it does to educate members of the

engaging with the local community and

questions on what life as a criminal

public about the legal process and the

sharing the skills they have learnt whilst

barrister is really like.

effect it has on people’s day to day lives.

studying at the centre.”

“We are currently celebrating the 10th anniversary of BPP Law School, and it’s great to see our current students



the barrister

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