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ESSENTIAL READING FOR BARRISTERS

EST. 1999

1st October - 21st December 2015 MICHAELMAS TERM ISSUE

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ISSN 1468-926X

Conduct, Codes and Culpability As the way legal services are provided begins to change, there are some fundamental questions about how the conduct of barristers will be regulated in the future. Will the conduct of solicitors and barristers come to be assessed on the same basis – and what is misconduct anyway?

Over time the relationship between the professional obligations of an entity and those of the individual lawyers within it will become more important. Who will be held to account if things go wrong?

The changing context As the rules which set the structures within which lawyers practice have become more flexible, so have the codes which regulate their conduct. The BSB and SRA have introduced an “outcomes” focus to their Codes of Conduct. This, it is hoped, will allow innovative ways of providing legal services. But where there is choice, there is often uncertainty.

The number of organisations which are made up of lawyers from different branches of the legal profession is likely to increase. Lawyers in other jurisdictions may become more closely involved. Will different

For barristers the long and winding road of entity regulation has just begun.

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Handling initial enquiries Invariably your clerks will be at the frontline on dealing with enquiries from members of the public. You don’t however want your clerks to be stuck on the phone to a client whilst they explain in

excruciating detail every aspect of their case. You need a way to quickly capture the key details without getting bogged down in the minutiae. A good to way to manage this would be through a questionnaire. This could be an online form so the clients can complete it without needing to directly interact with your clerks or else an electronic document that the clerks could e-mail to clients. Another option is to route direct access calls to an outsourced call centre. Both options then allow you and your clerks to assess the client’s needs and decide if you are likely to want to take them on as a client. That may then mean some form of initial consultation. If you charge for such services it may be worth offering a full refund if at the end of p.9

Forensic Science in Crisis By Dr Duncan Woods, Forensic Scientist, Keith Borer Consultants Border Crossing : E-Disclosure in complex litigation By Mike Taylor, barrister and E-Disclosure specialist, i-Lit Paralegals

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Direct Access ... are you delivering? By Jonathan Maskew, consultant at Shensmith Barristers chambers

How to manage Public Access clients Despite the growing number of barristers offering their services direct to the public there is still a great deal of unease amongst barristers around managing clients directly. It is important to consider how best to offer your services in a way that makes managing the clients easy for you and provides the clients with the service that they want. I have listed some of the key areas which need detailed consideration below and provided some brief guidance for each.

What the modern Solicitor General does as a government officer in 2015, An interview with Robert Buckland QC and Member of Parliament? Interviewer, Phillip Taylor MBE, Richmond Green Chambers Reviews Editor, “The Barrister”

15 John Gould Senior Partner of Russell-Cooke LLP

PRICE £2.80

News 3 5

Bar Council announces launch of Pupillage Fair JUSTICE publishes ‘Law for Lawmakers’ a new guide to the law for MPs

Publishing Director: Derek Payne 0203 5070 249 email: info@barristermagazine.com Publishers: media management corporation ltd Design and Production: Jeremy Salmon email: info@wedesign.media

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NEWS

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Disbarments now the most common outcome at Disciplinary Tribunal hearings For the first time, disbarment was the most common sanction imposed by Tribunal panels with 13 barristers being disbarred in 2014-15, according to the BSB’s Enforcement Annual Report. Administrative sanctions (warnings and fines) were issued directly by the BSB for the first time in the last year under the new Handbook. This ensures Tribunal panels now only hear the most serious cases where the conduct poses the greatest risk to the public. Embracing a more risk-based approach has been pivotal in achieving these outcomes and has also led to a more holistic regulatory approach in taking action to mitigate risks, according to the report. In 2014-2015, the time taken for Disciplinary Tribunal cases to conclude has improved significantly compared to previous years. However, staff turnover within the small Assessment team of the Professional Conduct Department (PCD), led to delays in processing the cases in the early stages of the system. As a result, the PCD managed

to conclude or refer to disciplinary action in 69% of cases within service standards, compared to the target of 80%. The BSB Enforcement Annual Report published a number of key statistics about disciplinary actions of barristers from the period 1 April 2015 to 31 March 2015: •

• • •

There were 297 external complaints. These are complaints raised by members of the public, lay clients or other legal professionals. This is a similar figure to previous years. There were 144 inaternal complaints. These are complaints about potential breaches the BSB becomes aware of itself. This was a 33% increase from the previous year. There were 70 new referrals to disciplinary action. There were 13 disbarments and eight suspensions during 2014-15. There were 12 cases that resulted in the imposition of non-disciplinary administrative sanctions. These are warnings and fines imposed by the BSB.

Bar Council announces launch of Pupillage Fair The first ever Bar Council Pupillage Fair will take place on 21 November 2015 and will be a hub of information for students considering a career at the Bar and a chance to meet chambers as well as course providers.

Speak with representatives from different Specialist Bar Associations to provide the best insight into different practice areas Speak with others who have been through pupilage or those from key committees who can offer advice about starting your journey at the Bar, and Learn about the Pupillage Gateway, the online application system for pupillage operated by the Bar Council.

Running alongside the Chancery Bar Association’s careers fair, the Pupillage Fair will be open to all chambers looking to recruit, irrespective of their specialism.

The joint fair, taking place at Lincoln’s Inn, will have representatives, workshops and information available from the Bar Council and other Specialist Bars about all aspects of life at the Bar. While many students may have a clear idea of the path they wish to follow, attending the Fair provides a unique opportunity to:

Philip Roberston, Director of Policy at the Bar Council, said: “Careers advice on how to become a barrister, which includes what’s required to succeed at the Bar and the challenges as well as the opportunities involved with the profession, is often hard to find.

Learn about all areas of the Bar and ask questions to those in the best position to provide advice

“The point of the Pupillage Fair is to bring all that information, as well as people who can provide a wealth of guidance about a career as a

Work to improve the enforcement pages of the BSB website is underway to ensure accessibility of information and transparency for both complainants and barristers. This was an area of work also identified in the interim report of the BSB’s Independent Observer, Isobel Leaviss.

Ms Leaviss was appointed in 2010 to provide independent assurance that the BSB’s enforcement system is operating in line with its aims and objectives. In her latest independent review on how complaints about barristers are handled by the BSB, Ms Leaviss was able to provide assurance, based on her observations, that she has “not identified any major systemic issues or any individual cases giving rise to serious concerns”. Commenting on the Enforcement Annual Report, the BSB’s Director of Professional Conduct Sara Jagger said: “The BSB Enforcement Annual Report shows we are making good progress with implementing a risk-based approach to regulation and enforcement action. We are committed to continuing to improve the enforcement function, in line with the BSB’s overall strategic aims and the recommendations made by the Independent Observer.” barrister, under one roof. Students thinking about a career as a barrister can use the fair as an opportunity to find out more and help them decide whether the Bar is the path they wish to go down and whether particular specialisms at the Bar are of interest to them. As we are joining forces with the Chancery Bar this year, there will be a healthy representation from Chancery sets as well as exhibition stands, information and workshops tailored for all specialist areas. The fair is an excellent platform for students to meet chambers and course providers face to face, as well as a chance for chambers to widen their net in the search for potential talent. “If chambers are serious about opening up pupillages to tap into a larger talent pool, the Bar Council Pupillage Fair is an ideal opportunity for them to do that. The fair also sends a clear signal to students that the Bar is open to all as a career.”

Find out more and register for the Bar Council Pupillage Fair at http:// thebarcouncil.sym-online.com/ pupillagefair15/default.htm

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NEWS

Drop in lawyers’ sick days, but high stress levels continue

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pressure the work entails, but we should also consider our own health and wellbeing. ‘The number of solicitors going to work when they should be taking sick leave to get better has fallen, but many still go to work when they are unwell. ‘Solicitors experiencing stress or other sickness at work should speak to colleagues or their line manager about it. The Law Society has a free helpline that offers confidential support for all our members. We also provide a range of resources to support good practice management.’

Law Society president Jonathan Smithers said:

The main findings of the survey are: Good health: 85 per cent of solicitors reported being in good health, a slight fall from 88 per cent in 2013 but still four percentage points above figures for the working population nationally. Sick days: On average, those taking time off due to ill-health or injury took 5.7 days, a fall from 6.6 days in 2013. Work ethic: 39 per cent of solicitors reported going to work when sick leave should have been taken, a fall from 45 per cent in 2013.

‘Law can be a demanding career. Many of us are drawn to the intellectual challenge and thrive on the high

Stress levels: 96 per cent of solicitors said they experienced negative stress, with 19 per cent at ‘severe’ or

Solicitors continue to be in better health than the general population and the average number of sick days they take has fallen. However, most solicitors continue to work under moderate stress. The Law Society has published research on the health and wellbeing of solicitors.

‘extreme’ levels, a slight increase from 16 per cent in 2013. Workload and client expectations were identified as the most common causes of stress in the Law Society’s 2013 research. LawCare chief executive Elizabeth Rimmer said:

‘LawCare is here to help anyone working in the legal community who may be finding the demands of law tough. Our website offers a range of practical information about wellbeing and we provide a free and completely confidential helpline for anyone who needs a listening ear about personal or professional problems. Everyone answering the phone has worked in the law and understands the day-to-day pressures lawyers face. ‘Lawyers are used to solving other people’s problems and often find it hard to admit that they are not coping with the demands of work and may be worried that not coping may be seen as a weakness by colleagues. This shouldn’t be the case. It can be very cathartic to talk to someone about how you are feeling. Many people who call our helpline say that the chat on the helpline has really helped them to feel better and put things in perspective.’

Barristers form sports team to tackle disputes Whether it is David Beckham’s image rights or Alberto Salazar’s position on performance enhancing drugs in athletics, a new team of barristers in Southampton will have the very best legal advice.

“This work has often tended to be done by law firms in London but there is no need for people involved in sport in this area to go to London for their expertise when we have it right here, and probably for a smaller cost as well.

Gemma White and Amy Lush have kicked off a specialist sports law and practice team within 12 College Place Chambers with a view to bringing business in off the playing field. As well as providing representation for sports clients that find themselves having to resort to legal action, or on the wrong side of the law, they can provide advice on action following injuries, selection rows and player and club image rights. With direct public access rules it is no longer necessary to go through a solicitor to get advice and representation by a barrister. Barristers can now be hired directly and can often provide their expertise for a fraction of the cost of a solicitor. Gemma, who is a qualified netball umpire as well as a barrister, said: “We think there is quite a big potential client base for this new sports team in this area with professional sports clubs and a very large amateur sport base as well.

rugby and cricket through to netball, tennis, and any other sport. “It is quite a niche area and it is a closed shop in a lot of sports where they have their own governing or regulatory bodies,” added Amy. “But even they sometimes need to get counsel’s advice for an issue they are dealing with.” The sports law team at 12 College Place will provide advice and support on:

“Amy and I make a good team for this work because my skills are more criminal side, such as disciplinary hearings, whereas she is more civil law based so would be good for injury liability cases and commercial disputes.” Amy, who used to play tennis semiprofessionally in Spain, said she had been interested in sports law, tribunals and anti-doping for many years so jumped at the chance to train as a barrister and focus on these areas. “There are a number of sources of potential work on the south coast for us in the new sports team,” she said. The pair are hoping to attract the legal business of a wide range of sports clubs throughout the south - from football,

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• •

• • • •

• •

Disciplinary matters brought by a sport’s governing body or antidoping authority Criminal representation for sports clients involved in road traffic matters, on and off field violence, match fixing, and so on Civil liability for injuries by or against sports clients Equality and discrimination claims Selection for teams and competitions Employment issues such as contractual disputes, equal pay, working time regulations, unfair and constructive dismissal •General commercial contracts including a review of licensing, broadcasting and sponsorship agreements Player or club image rights Safeguarding and child protection


NEWS

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JUSTICE publishes ‘Law for Lawmakers’ a new guide to the law for MPs JUSTICE has long worked on a crossparty basis to build a bridge between Westminster and the legal community. In that spirit, we today publish Law for Lawmakers, a short introduction to some key legal and constitutional principles confronted by MPs, Peers and their staff in their work. This guide is designed to provide basic information and signposts to sources of legal advice and support. Whilst the legal profession is well-represented in politics it has never dominated the House of Commons. For example, of Parliament’s 650 current MPs, only 88 practise law in England and Wales. This is no bad thing. A Parliament full of lawyers would not only be deprived of the wider experience of our community, but could also be deeply dull. As the makers of our laws, as our representatives, and in holding the Government to account, MPs and Peers wear many hats. Each of these roles requires MPs to grapple with the law every day. However, for

over three-quarters of all first-time MPs this may be a very new experience. This Parliament is set to consider constitutional questions ranging from the scope of surveillance powers for the security services to the withdrawal of the UK from the European Union; from a new devolution settlement for the Union to the repeal of the Human Rights Act 1998. This guide doesn’t set out to answer those questions, but it may help to inform discussion and debate. Lord Hope – former Deputy President of the Supreme Court – writes in his foreword:

“We all depend on the rule of law for the moral and ethical well-being of our country. Upholding the rule of law is not, however, just a matter for the judges. It is the responsibility of Parliamentarians too, as the laws which they make are underpinned and given primacy in our courts by the theory of the sovereignty of Parliament.

The role that Parliament plays in upholding the rule of law itself is therefore crucial to its existence.” Andrea Coomber, Director of JUSTICE said: “For decades, JUSTICE has worked closely with politicians from all parties, focusing on access to justice and the rule of law. This Parliament will tackle difficult constitutional problems from Brexit to EVEL (English votes for English laws). Beyond the acronyms, we thought the time was ripe to revisit the basics and to start a conversation about access to independent cross-party legal support at Westminster.” This project has been kindly supported by Allen & Overy, the Law Society of England and Wales, the Bar Council and the Chartered Institute of Legal Executives. Andrew Denny, Partner at Allen & Overy, said:

“We are aware that MPs and their staff have to grapple with important legal and constitutional issues on a daily basis and so this guide has been designed to support them in navigating this potentially challenging landscape. Lawyers from across our Human Rights Working Group and UK Public Law Team came together to work on this project and so we are thrilled to see it come to life today in the JUSTICE guide.” Vicky Purtill, Head of Qualifications, Chartered Institute of Legal Executives, said:

“This helpful guide will be invaluable in assisting Parliamentarians in identifying the potential implications of the legislative decisions they make. We are very proud to have been involved, and offered our expertise in legal education and training.”

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NEWS

In the Dock: Reassessing the use of the dock in criminal trials JUSTICE published its most recent report, which reviews the criminal dock and recommends its use is discontinued. JUSTICE is concerned that the use of the dock impacts upon the defendant’s right to a fair trial, in particular: effective participation in one’s defence; preserving the presumption of innocence; and maintaining dignity in the administration of justice. These rights have long been protected by our domestic legal system, the European Convention on Human Rights and international human rights law. The Lord Chief Justice of England and Wales, speaking at the launch yesterday, thanked JUSTICE for “raising the debate” saying he “warmly welcomed” the report:

“I express gratitude to JUSTICE for continuing to take up the points that we in the justice system have taken for granted…. We need to go back into the community and do justice locally. There is no way that we can do so with a big secure dock. The report forces us to ask do we need docks in every court? How [do] we marry security concerns with civil liberties concerns? [The report] is provocative and I have an open mind [about what the alternatives to the dock should be] and look forward to the

debate.” Anthony Burton CBE, experienced criminal defence solicitor and JUSTICE Council member followed the Lord Chief Justice and spoke to the room of his concerns about the use of the dock in trials: “The dock marginalises the defendant. As a practitioner it becomes absurd trying to communicate with a client in the secure dock. There are so many occasions during trial where the client wants to say something and struggles to get their lawyers’ attention. There is a compelling need for greater engagement of defendants with their own trial. The dock is undignified. I propose this relic be confined to a museum.” 81 per cent of courtrooms in England and Wales have either a secure or open dock in which a defendant must be enclosed for the duration of the trial. Almost all defendants remanded in custody are seated in a secure dock – which is a floor to ceiling enclosure of wood and glass panels. Notably, a number of other jurisdictions, including those that share our common law heritage, have abandoned the use of the dock, explicitly recognising its adverse impact on the defendant’s right to a

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fair trial. While there may be genuine concern that a defendant could try to escape, or violence may occur in the courtroom, there is little evidence that such incidents are anything but rare. Moreover, other jurisdictions offer useful examples of discreet and humane alternatives to the dock, which are used on a case-by-case basis. The established use of docks was not cemented until as late as the 1970s, when the Howard League and Law Society raised similar concerns to JUSTICE. The secure dock now in use did not arrive until 2000. Even today, there is no statutory or judicial requirement to place a defendant in the dock. It is therefore at the discretion of the courts that this practice continues. Andrea Coomber, director of JUSTICE, said:

“In light of our legal obligations to secure the right to a fair trial in practice JUSTICE calls for reconsideration of the use of the dock in our criminal courts. At a time when HM Courts and Tribunals Service is reviewing the use of its estate, attention should be given to how our courtrooms are designed, by reference to actual need, rather than purely tradition.”


codes of conduct p.1 continue to be relevant if a problem arises? As the overlap between the services provided by barristers and solicitors increases, to what extent will the fiduciary duties, which have been applied to solicitors, also be applied to barristers in solicitor-like relationships with clients? The Codes Each of the legal regulators in England and Wales produces its own code of conduct. This multiplication makes the regime overall look very complicated but the problem should not be overstated. The respective codes are marked more by their similarities than by their differences. This is not surprising given the role of “frontline” regulators, such as the BSB and SRA, within the overarching structure set up by the Legal Services Act 2007. It is also, of course, the case that the conduct required of lawyers derives from the decisions of courts and tribunals applying principles and law which often require no distinction to be drawn between, for example, a barrister and a solicitor. It might be asked why different codes are required at all. There are now nine approved regulators of legal services each with their own fairly similar codes. Some aspects, such as the holding of client money or advocacy or the “cab rank” rule, do require specific provisions but these areas may become less profession specific as the different branches compete for work traditionally done by another. Where lawyers are providing the same service, it may be unfair that they are bound by substantively different rules of conduct. From a consumer’s perspective it would be interesting to ask what conduct would presently amount to serious misconduct in one profession but not in another. This is not to suggest that codes are unimportant. They serve to influence the behaviours of those regulated and indicate the circumstances in which a regulator may seek to use its powers. An investigation or prosecution by a regulator represents a significant impact on a lawyer whether or not

it leads to an adverse finding at a tribunal. Codes are to be taken seriously, but they are by no means the whole story. Underlying codes is the concept of misconduct and although codes are re-expressed every few years, even changes of substance are likely to be marginal to the question of what is or is not to be regarded as culpable. Culpability It is necessary to clarify the terminology. The term “misconduct” is not used consistently across the regulatory terrain. The Bar Code of Conduct defines misconduct by reference to breaches of rules. This may be based on the assumption that a rule could not be breached by an individual barrister without sufficient culpability. Partners in solicitors firms, on the other hand, may breach, for example, the Solicitors’ Accounts Rules without any personal culpability. Even where the responsibility for rule breaches is strict, culpability is still relevant in assessing seriousness. In this article “misconduct” is used to mean conduct which is sufficiently culpable to justify an adverse disciplinary finding against an individual. The concept of misconduct in this sense can be applied with reasonable consistency to both barristers and solicitors. So what does this shared concept look like? Some conduct is easy to characterise as misconduct once the facts are proved, but in many cases the judgement, expertise and experience of the tribunal is required. Is conduct sufficiently culpable to amount to misconduct? If it is, how serious is the misconduct? It is the application of a tribunal’s view of culpability to particular facts that lies at the heart of disciplinary proceedings. At this heart is uncertainty. The question is to be answered by a tribunal on the basis of what would be regarded as misconduct by a consensus of professional (including judicial) opinion. How is a lawyer to know how to conduct himself in uncertain situations? This is a particularly acute problem where the situation raises what may be no more than a shadow of doubt about propriety. The material facts are hardly ever

identical, which means that tribunal decisions have limited value as precedents. On a regular basis, however, tribunal decisions are appealed to the courts and the resulting decisions provide authoritative restatements of the underlying principles. Lawyers’ disciplinary tribunals are regarded by the courts as being expert and informed. They are considered to be well placed to assess conduct and seriousness in the areas for which they are responsible. A tribunal is likely to have had the advantage of hearing oral evidence. Its decisions, including as to sentence, are to be treated with an appropriate measure of respect. Nevertheless where a decision is wrong in principle it will be overturned. Even if a tribunal’s decision is upheld the endorsement of the underlying principles applied is informative. So how should the consideration of misconduct be approached? The starting points are the relevant professional rules, codes and standards. The answer may be relatively clear but if there is no specific answer, principles may assist. The Legal Services Act 2007 set regulatory objectives for regulators including promoting and maintaining adherence by authorised persons to “professional principles”. These are: independence and integrity; proper standards of work; the best interests of clients; the duty to the court and confidentiality. These principles find their way into the rules and codes of all the legal regulators with additions and permutations. But a statement of principles does not set the standards actually required. It is no criticism of principles that they are expressed at a high level, but it is the application to particular conduct which matters. This leaves a lawyer to make a judgement as to whether particular conduct is or is not permissible. In many cases the answer will be clear and little judgement will be required. Deliberately misleading the court, for example, would not be excused on the basis that an individual judged it was permissible in the best interests of a client. An honest and genuine decision, however, of a lawyer on a question of

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professional judgement may not give rise to misconduct. The question must be one which requires judgement. The lawyer must actually address the issue and his or her decision must be one which a reasonable and competent lawyer could have made. It may not matter that numerous other reasonable and competent lawyers would have disagreed. Consultation with other lawyers (preferably senior and experienced) who were of the same view would be persuasive but not conclusive. Sometimes allegations of misconduct arise not from professional judgements as to the proper course, but from incompetence. There is a distinction between the fault required to establish negligence and the culpability required to show misconduct. Although both involve a departure from the required norms, some extra element is required for misconduct. Misconduct does not have to involve a lack of integrity but it is more than making a mistake sufficient for liability in negligence. Negligence may be misconduct if it is

inexcusable or deplorable. Sustained or persistent neglect of a client’s interest may become misconduct. All of this illustrates that misconduct cannot be determined by reference to codes alone but conceptual differences may actually be few. Fiduciary duties A significant part of the professional duty of a solicitor derives both directly and indirectly from his or her position as a fiduciary. A solicitor owes a duty of undivided loyalty to his or her client and from this duty comes, inter alia, the concept of conflict of interest. The duty also encompasses the oversight by the courts of any dealings between client and solicitor. The fiduciary duty does not arise from the formal status of a solicitor but from the nature of the relationship with a client in the context of the retainer. A relationship involving ascendancy, influence, vulnerability, trust and confidence may well be a fiduciary one. There is no reason in principle why a lawyer other than a solicitor should not be a fiduciary if

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the same elements are present. The context for the application of such a duty may become more significant if barristers come to have more solicitorlike relationships with clients. What emerges from all of this is that it would be a mistake to see codes and rules as the only things that matter in considering conduct and culpability. Each of the legal professions has a long established legal (not to mention cultural) context within which acceptable behaviour is judged. Over time, to the extent that each branch becomes more alike, that context is likely to change but it would be a brave person who would say when.

John Gould is Senior Partner of RussellCooke LLP and author of The Law of Legal Services


the meeting you tell the client p.1 their case is not suitable for Public Access. Fees and getting paid Once you have decided if you want the case you have to think about getting paid. You should never undertake any Public Access work without being put in funds. This means you have to tell the client the cost well in advance of the work being done to allow time to pay. Inevitably clients will want to know the fee at first enquiry. It is therefore preferable to have a scale of fixed fees available so that your clerks can quote a fee at the earliest opportunity. If you are charging based on hourly rates or on the basis of an estimate you may be running the risk of holding client funds which is a breach of the Code of Conduct. You can seek to avoid this issue by using the BarCo escrow account, but it is far easier to charge a fixed fee. With the fee agreed you need to be able to take payment. There are few things more annoying than to find that when you wish to make a purchase there is not the option to pay by card. There are many options available that facilitate the taking of card payments. They can be relatively inexpensive but will provide your clients with an easy way to pay. Some clients will invariably want to pay by bank transfer and it would make sense for your Chambers to have a dedicated account for Public Access payments. Payment by cheque is fine however you must stipulate that if you are to be paid by cheque it must be 7 days in advance of any work being started to allow time for the cheque to clear. However you manage payments it is important to remember that for the client this is a stress buy. They don’t want to spend their money on this, it’s a necessity. You need to provide absolute clarity on how much they are paying, what they get for their money, that you will not do the work without payment and the various methods of payment you offer. Communication This is another area where your requirements must be completely unambiguous. If your client has had experience of other lawyers they may expect you to be on the end of a phone whenever they call. If you have a busy

court practice staying in touch with clients can only really be done by e-mail. You don’t want your clerks to have to field long tedious calls which are often just a chance for the client to vent his or her anger. Make it clear at the outset that you will only enter into ongoing communication via e-mail. Ideally this should be directed to your clerks who can then monitor if there are any upcoming dates or urgent issues which need to be addressed. Stress to your clients that your clerks are not legally trained and cannot advise on a case, they can only take messages and pass them on. If you have a client who does not want to communicate via e-mail and insists on speaking to you directly then explain that you will have to charge for each call and that the calls will have to be booked through your clerks and paid for in advance.

worst case scenario this may mean that they completely misunderstand what happened or misremember what you have advised. This may well lead to them ultimately making a complaint as the outcome does not match their memory of your advice and explanation. If however you follow up each piece of work with a brief note of what was discussed, what the outcome was and any next actions you will undoubtedly greatly lessen the risk of any later misunderstanding.

Standard terms The Bar Council provides a standard client care letter which is a good starting point. It is however a basic template and it is important to really read that letter and fully understand what it says. Consider whether the letter accurately describes the type of service you are providing. The language which is uses must be clear and concise for the entire range of clients to whom you are likely to provide services. Most people when faced with pages of small print won’t even bother reading it. If all the important information about fees, payment and communication is buried deep within the letter you can’t be certain the client will read and understand it. If you have key information and you want to make sure the client reads it, put it in the covering letter or e-mail preferably in a large or bold font. It is also important to remember to regularly review your client care letter. There are frequent changes to legislation which may make your letter in breach of money laundering or trading standards regulations.

My final piece of advice ought really to come at the very beginning of this piece as it will direct all your other musings. When you approach the thorny issue of how to provide your services to a client, put yourself in their position. If you were seeking to instruct a barrister directly what would you expect? How would you like your initial query to be handled? What level of service would you expect? How would you want to pay and how much? You may find many more factors that you deem worthy of consideration than those I have listed above.

Follow up I mentioned earlier that for the client the purchase of a legal service is often a stress buy. It may be that they nod and smile when you explain your advice or the outcome of a hearing but rarely will they fully understand. Invariably they will get home and try to recall what it all meant. In the

Before launching into Public Access it is important to consider your own practice, how that interacts with chambers and probably most importantly what you expect from your clerks. A small focus group with representatives from barristers and clerks is a useful way to plan for the future.

Each of us has different expectations and managing those expectations is a key part of client care. It is impossible to provide a service which fits every type of client but you can design one which suits the majority.

Scott Baldwin Senior Clerk St. Mary’s Chambers DDI: 0115 943 7180 Email:scott.baldwin@stmarysflc.co.uk Phone: 0115 950 3503 Fax: 0115 958 3060

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What the modern Solicitor General does as a government officer in 2015 An interview with Robert Buckland QC and Member of Parliament

Interviewer, Phillip Taylor MBE, Richmond Green Chambers Reviews Editor, “The Barrister”

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hat the modern Solicitor General does as a government officer in 2015 An interview with Robert Buckland QC and Member of Parliament Interviewer, Phillip Taylor MBE, Richmond Green Chambers Reviews Editor, “The Barrister” It seemed appropriate to find out a bit about the work of the Solicitor General in the new government so I asked

Robert Buckland for an interview to talk about his role, his hopes for the future and his experience as one of the younger members of the government. And this is the result!

that we have five-year parliaments. So what does the current Solicitor General actually do and who is he?

The Current Solicitor-General As the newly re-appointed Solicitor General for England and Wales, he agreed to be interviewed by “The Barrister” after the General Election in May 2015 which has resulted in a majority Conservative government for some years, and also the possibility of some dramatic changes in the political landscape following this victory now

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The current Solicitor is Robert Buckland QC, the Conservative MP for Swindon South who was first elected in 2010 having won the seat from the Labour Party. He succeeded Oliver Heald MP on 15th July 2014 which is St Swithin’s Day and we did discuss the issue of whether it was raining


that day or not (it wasn’t). And, as it happened, I interviewed him one year later and it also did not rain so the omens looked good. Buckland has fought a number of elections and by-elections in the past so he comes to Parliament with a substantial campaigning track-record. He is a well-known supporter of Britain’s membership of the European Union so that probably gives the reader a good indication at the outset of where he stands politically even if you read his parliamentary biography and see the range of interests mentioned. In the Commons he was elected as a member of the Justice Select Committee, and he chaired the all-party group on Autism between 2011 and 2014 amongst other matters. So it is fair to say that he spent much of his backbench parliamentary life involved in legal matters prior to his appointment which is why he can to the PM’s attention. My interview began with his legal work prior to the new appointment. He practised as a barrister from 19922010 and specialised in criminal law, being appointed as a Recorder in the Crown Court in 2009. He took silk in 2014 and is a Bencher of Inner Temple. As Solicitor General he does appear regularly in court as does the Attorney General although I did not explore specific cases during this profile interview. The office of Solicitor General is a not well known office although he acts as deputy to the Attorney General who has the more prominent role. In fact little is really known of the role of the two Law Officers particularly that of the Solicitor so Robert more than obliged with a bit of its history which stretches back to Tudor times!

The reality of these two appointments is now rather different as they appear to be the family lawyers for the ‘Government family’. Brazier describes the ancient offices as “ministerial in character” setting the date of the office of Solicitor-General from 1515 on the authority of no less a legal luminary than Sir William Anson in his definitive work “The Law and Custom of the Constitution” (1907). So that date is what we agreed in during the interview although we do not have anything more specific. Law Officers as Active Politicians

Most of us, as constitutional lawyers, will refer back to two books from our days as law students for a clue as to the role of the Law Officers: Rodney Brazier’s excellent and contemporary “Ministers of the Crown” (1997) and the even earlier, J Edwards “The Law Officers of the Crown” (1964).

For some considerable time in the modern era the two government Law Officers are active politicians, albeit ones who are charged with these special ministerial duties which rank as most fascinating givers of legal advice to such a rare client (the Cabinet).

Buckland’s office can be traced back to what is seen as its first recognised holder, Sir John Port around 15141515. Port was involved later in the trials of Thomas More and Anne Boleyn so the post is mostly Tudor in its early development. So, at the time of writing, the Solicitor is commemorating the anniversary of the creation of the role some 500 years ago and I wished him a very happy anniversary. What immediately becomes quite noticeable when interviewing Buckland is the approach which the Law Officers are required to adopt and have developed over the centuries. They have performed some delicate duties which have been devolved upon them: ‘tricky’ would appear to be the word. Such duties have led to the need to achieve a balance between the political ticket they have been elected on in the

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Commons and the legal responsibility to give the government of the day ‘the bad news’ when the occasion demands it, which can be quite frequent without going into specific cases. And this is where Robert Buckland comes in. He has that refreshing and enthusiastic approach to his work which is why David Cameron appointed him on that non-rainy St Swithin’s Day in 2014. Born in Llanelli, Robert was educated at Durham and Called to the Bar at Inner Temple at the same time as me, in 1991. His early years in practice were predominantly on the Wales and Chester Circuit with chambers in Swansea specialising in crime and he is a product of the new Bar Vocational Course which was introduced in 1989 which indicates what many of us as practitioners recognise as a ‘turn’ away from the older teaching and training methods for the Bar. And Buckland, coming from a legal background, is an enthusiastic supporter of the circuits and the Inns of Court seeking an expanded role for the Inns in the future as he comes from a “new” Bar which loves communicating, and enjoys debating and analysing legal argument.

Human Rights Reform The big question to be asked was inevitably about human rights and where we are today. Robert disclosed that he did go on strike with colleagues over legal aid cuts some years ago. He is well aware of the specific problems which we are continuing to face at the Criminal Bar and which any member of Counsel is aware today in practice. Both he and the Attorney are also very well aware of what we face in austere Britain. They have no power to do much about cuts even if they could do so. It says much for the Solicitor that he was quite frank with me about strikes over legal aid when many would duck the issue entirely. And dealing effectively with the human rights issue really is about the ‘art of the possible’. Buckland did say in a

speech on Human Rights Day last year that “my practice in South Wales was predominantly criminal legal aid, so the liberty of the individual lay at the heart of my work. I have been a human rights lawyer, like thousands of fellow barristers and solicitors, for nearly 25 years. It’s just that I didn’t think to call myself one!” I am sure that this quote sums up what virtually all lawyers feel about the issue and it was apparent that human rights reform will run for many months before we see new proposals from the incoming government.

The Solicitor’s job Description The Solicitor provides support for the Attorney in a number of particular areas: superintendence of the Treasury Solicitor’s department, the CPS, the Service Prosecuting Authority, HM Crown Prosecuting Service Inspectorate and the SFO. Buckland also gives support on civil litigation and advice on civil law matters and the public interest function. What will be of interest to

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“The Barrister” is that he does appear in court regularly with the ‘hands on’ approach and the post of the Solicitor is held by… a barrister… which is so British! In fact there is a good reason for this because of the advocacy role of the Solicitor in the higher courts although any lawyer with higher rights could of course fulfil the role as I am sure all readers would agree.

The Development of Legal Apprenticeships The continuing development of legal apprenticeship schemes is an important policy for the law officers and continues after the Addleshaw Goddard initiative on offering higher apprenticeships. Buckland is a great communicator and has an infective enthusiasm for the Legal Trailblazer Apprenticeship scheme which is just the start of a new entry route to the profession. The Inns of Court and the circuits and maintaining the traditions of the law are clear priorities for the Solicitor.


The Rise of Public Legal Education (PLE) With the end to a ‘legal aid for all’ culture which will not return in the foreseeable future, where do we go with the vexed question of ‘litigants in person’ which is raised at so many meetings today? The Solicitor confirmed his strong support for the continuing development of the “Public Legal Education” (PLE) which has an important role to play in modern legal proceedings if access to justice is to be made available to all. PLE is being rolled out in welfare law although it would seem another main priority for the law officers during this Parliament and they are both young experienced men tasked to see it through whilst maintaining the rule of law which began 800 years ago at Runnymede.

The public are clearly well served by our current law officers and this point emerged firmly from the interview.

If they do nothing else, they can act as a break on some of the more outrageous policies of the day pursued by the government which may cause legal difficulty although they remain to some extent ‘outsiders’ from the party political process because of their functions and approach which seems to me to be very healthy with a majority government. It is astonishing that criticisms still surface from the usual suspects about new appointees emerging as complete unknowns to many on appointment but that’s the political process in practice- after all, who had heard of Margaret Thatcher or John Major as they emerged from the ministerial shadows to become party leaders? But that is the beauty of British politics, even spreading to issues of the Labour Party leadership.

much represent the extremely high quality of talent now practising at the Bar which remains the envy of the world. So be it! The conclusion is that both the Attorney and the Solicitor are two safe pairs of hands starting their new terms of office after their respective “political pupillages” under the coalition government and there will be the many hard cases to handle. Both are excellent choices for this curious and demanding portfolio for the twenty-first century.

So with the government’s law officers today who are both younger and established professionals do not have high public profiles (and probably shouldn’t have them) but they do very

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Sexual Offences Sentencing Guidelines By Charles Falk, Drystone Chambers

QUESTION: When is an old Guideline still a current Guideline? ANSWER: When sentencing a youth Case: R v Birley: 6th August 2015 Court of Appeal, Lady Justice Hallett – Citation to follow

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efendant Sentenced at the age of 67 for offences of historic Incest and Indecent Assault on his younger sister when he was 14/15 and she was 13/14 approximately 53 years ago. They were 15 months apart in age.

The Defendant and his sister were the oldest of 4 siblings who lived with their parents in a 2 room apartment in North London in the early 1960’s. The whole family slept in a single room and the children would wake up and witness their parents regularly having sex. Over a 6-month period, when he was 14 and she was 13, the defendant began to experiment with his sister and digitally penetrated her vagina on numerous occasions. That stopped when they moved house and she was given her own room.

a 1B offence with a starting point of 3½ years with a range of 2½ to 5 years custody. He then significantly reduced it to take account that he was dealing with a then 15 year-old child and unfortunately passed a sentence of 15 months immediate custody for the Incest with 8 months concurrent for the Indecent Assaults On appeal the Court of Appeal found that the judge was wrong to have used the current guideline at all. The current definitive guideline specifically states, on page 7, that it is only applicable to offenders aged 18 and older. Page 151 of the same guideline states that, “Definitive Guidelines for the sentencing of offenders under 18 years old are not included. When Sentencing offenders under 18, a Court must in particular: •

On a single occasion just after her 14th birthday when the defendant was 15 he went into her room and had vaginal intercourse with her, without ejaculation and then gave her a £1 note. There were no further incidents after that.

• • •

For the next 53 years, he went onto live a blameless and fruitful life. He had a successful marriage, 4 children, 5 grandchildren and worked solidly throughout including a period as a Special Constable. Significantly he also financially supported the victim at various points in her life, took her on holidays with his family, and at one point, she asked him to take her 18 year old daughter under his wing when she was going off the rails. He did so, housed her and looked after her for years. She became one of his greatest supporters at sentence. In 2008 when the victim reached 60, she confronted the defendant about their past using a hidden tape recorder. He made partial admissions and apologised. It was only in 2013 that she went to the Police. The Defendant eventually pleaded in 2015 to Incest and 2 Specimen Indecent Assaults (having originally been charged with Rape) The Sentencing Judge looked at the current Sexual Offences Definitive Guideline applicable to sentences after 1st April 2014 and using the equivalent offence of Sexual Activity with a child family member (S.25 SOA 2003) he found this to be

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Follow the definitive guideline Overarching PrinciplesSentencing Youths And have regard to: The principal aim of the youth justice system (to prevent offending by children and young people) and The welfare of the young offender”

In the above case, the Court of Appeal specifically interpreted that to mean that the previous guideline i.e. the Sentencing Guidelines Council Sexual Offences Act 2003 Definitive Guideline for offenders sentenced after 14th May 2007 has only been superseded by the 2014 guidelines as far as adults are concerned, but is still in force as far as Sentencing Young Offenders. Part 7 of the previous guideline (unlike the current one) has specific starting points and ranges of sentences for various sexual offences committed by youths. In Mr Birley’s case the starting point for the equivalent offence of penetrative sexual intercourse with a child family member (Max 14 years for an adult, but 5 years for a child) is a community order absent aggravating features. The Court of Appeal quashed his sentence of imprisonment and replaced it with a 3 month community order with a condition of 7 days residence due to the time spent in custody prior to appeal. The Court drew no distinction as to whether a young offender was being sentenced for an historic or current offence. If a defendant is being sentenced for a sexual offence, and they are 17 or younger, they must be sentenced according to the previous guidelines.


Forensic Science in Crisis By Dr Duncan Woods, Forensic Scientist, Keith Borer Consultants

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ecent publicity surrounding the developing crisis in forensic science in England & Wales suggests that the fears of forensic professionals, about the adverse consequence of Government policies, may finally be receiving some prominence. It is unfortunate and dangerous for our CJS that it has taken so long to achieve any media concern. One assumes it will take even longer for political understanding to develop to the point of having a coherent government strategy on forensic science provision. We have never been so concerned about the viability and application of forensic science and so are other professionals (witness Dr Angela Gallop’s contribution to the Radio 4 series Forensics In Crisis). This is at a time when huge advances in technology should be making forensic professionals more confident in the future and, when combined with their experience, more useful to the CJS. The reality is just the opposite: generally too much significance is being placed on scientific results which are either incomplete or the limitations of which are not explained or not understood. So where are things going wrong and why? The ‘why’ is relatively easy to identify: it is the consequence of disconnected

and ill-conceived government policies, compounded by the way police forces have ‘used’ the commercial forensic providers that replaced the Forensic Science Service. With a little application at the top and joined up thinking, the transformation of forensic science provision could have been achieved to greater evidential effect and improved cost effectiveness. In practice we see parochial decision making, avoidance of responsibility in order to save cost and general ‘dumbing down’ of most forensic provision - by limiting the scope of work and avoiding expert evaluation of forensic results. Forensic provision now operates in a system where speed and lowest cost appear to be considered more important than the quality and reliability of the evidence itself. Consequently the latter rarely fits the criteria for ‘best evidence’ and is often not fit for purpose when it comes to court. So what are the core problems? 1. Poor prosecution forensic strategies conceived without the input of forensic science experts: these often seem to be a tool to justify omitting forensic testing; or choose the cheapest or most accessible forms of forensic testing (fingerprints and DNA profiling) as a matter of routine over other forms of testing more likely to yield probative results.

2. Avoidance of responsibility for commissioning pertinent forensic examinations, often leaving it to the defence to identify and commission pertinent forensic examinations; currently a particular problem in sexual offence cases. 3. Tokenism: as above but where the prosecution commission a single analysis, such as a swab for DNA profiling, then indicate that a forensic strategy has been applied; generally it seems intended to provide just enough to justify a charge and move a case on. 4. Poor implementation of Streamlined Forensic Reporting: where SFR1’s are used to report a test result inferring guilt but without any context or evaluation, leaving the CJS (prosecution and defence) to guess its true evidential value. Experience suggests that the weaknesses in forensic evidence are most frequently missed or misunderstood in these circumstances. 5. Inaccurate SFR2 reports: these are commissioned as full evaluations but the conclusions are frequently inaccurate and misleading. This can usually be traced to inadequacies in the information provided to the prosecution forensic experts to inform their evaluation or their own too narrow experience. Most of these consequences derive from over-concentration by government agencies and police on cost avoidance, and lowest cost production of evidence. Overall cost effectiveness of forensic provision within the CJS has deteriorated as a result. A by-product has been a gradual loss of experience and intellectual wealth from the forensic profession. Over recent years the cost saving agenda has been driven by the police and CPS who make the early decisions on case management and forensic requirements. It is perhaps time that the end users, lawyers, prosecution and defence barristers and the judiciary, become less compliant. Let the agenda be driven more by the ultimate purpose of much forensic science: reliable evidence and demonstrable justice.

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Border Crossing : E-Disclosure in complex litigation By Mike Taylor, barrister and E-Disclosure specialist, i-Lit Paralegals When this reputation is coupled with statistics such as 27% of the world’s 320 jurisdictions using English common law as their basis it should come as no surprise to learn that the UK is a thriving hub of international dispute resolution. This success does however mean that UK lawyers need to have heightened sensitivity towards the potential for conflict between the jurisdiction of choice for dispute resolution (England and Wales) and foreign jurisdictions local laws, particularly on the movement of personal data, which has the potential to cause unusual complexities when conducting cross border litigation. Clashing Cultures

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he most recent report into the UK legal Services industry by the lobby group TheCityUK (UK LEGAL SERVICES 2015 LEGAL EXCELLENCE, INTERNATIONALLY RENOWNED, published in February 2015) which represents the interests of UK-based financial and related professional services industries makes encouraging reading for UK lawyers, the reports opening paragraphs include the following statement; “The impartiality, integrity, quality and depth of experience of legal services and the judiciary found in the UK are particularly well-regarded, both domestically and internationally. The UK also has an envied reputation for the fair, effective and transparent resolution of international commercial disputes.”

Disclosure in the UK is governed, specifically, by the CPR Part 31 and it’s practice directions. In addition the CPR’s overriding objective of “enabling the court to deal with cases justly and at proportionate cost” governs the overall conduct of disclosure. Recent experience of presenting on this subject in the US demonstrated, at the very least, raised eyebrows at the “proportionate cost” element of the overriding objective. My experience was that there is far greater adhesion to the academic “quest for justice” within US legal circles than in the UK where the focus, at least to me, seems to be far more on the practical resolution of disputes and the almost inevitable compromise that all parties involved will have to make. Conversely European jurisdictions

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raise their eyebrows at the thought of our disclosure exercises that are far more intrusive and expensive than civil law jurisdictions disclosure exercises are used to and so the UK sits as a half way point between the US and the EU with some understanding of both perspectives. However just understanding of the mind set of different jurisdictions does not solve the problems associated with obtaining disclosure which is both in line with the requirements of the CPR and also in line with the differing requirements of foreign jurisdictions.

Data Privacy Not only are there differing cultures when it comes to disclosure / discovery obligations in the UK, EU and US but there are also differing attitudes towards data privacy. Currently European Directive 95/46/ EC regulates the processing of personal data within the European Union. As a directive it is open to individual countries to interpret it into domestic law and then enforce their own law within their own country (although there are ongoing disputes about whether or not compliance with the laws of one EU state does or does not affect compliance in other states). However all of this will change at some point in the near future (probably) as an EU wide data protection regulation was approved by the European Parliament in 2012. The delay in getting this regulation passed into law sits with the European Council who are having extended discussions about how such a regulation would be implemented in practice, so until such time as that regulation is passed there remain differing rules for differing EU states. Rather than rehash every differing rule here I think it prudent to direct those who need specific details to the very useful guide produced by DLA Piper and found at (www.edrm. net/resources/data-privacy-protection/ data-protection-laws) this guide gives a broad overview of the data privacy

laws in 58 different jurisdictions and should at least give readers a flavour of the likely complications when requesting disclosure from those jurisdictions.

The Hague Convention The Hague Convention for the Taking of Evidence Abroad in Civil and Commercial matters establishes a framework whereby the court of one country can ask for the assistance from the court of another country to facilitate the collection of relevant evidence located within that courts jurisdiction. The procedure for requesting evidence using the Hague convention is one where a Letter of Request must be sent from the requesting court which includes very specific information such as the authority requesting, names and addresses of the relevant representatives and the evidence required, and it must be in the language used by the body requested to execute it or with a translation into that language. The Hague convention process is unlikely to work for practical reasons. Receiving states are unlikely to deal with the request with the urgency required by court timetables and the Court of Appeal has held in Secretary of State for Health & others v Servier Laboratories Ltd & others [2013] EWCA Civ 1234 that English courts had jurisdiction to make the orders as part of the process of disclosure in civil proceedings.

criminal sanctions for allowing data to be disclosed in the course of discovery / disclosure requests from foreign jurisdictions. It is true to say that whilst blocking statues are in place they are regularly not enforced (there is a well know case in France referred to as Christopher X where criminal sanctions were imposed at first instance but in fact were overturned on appeal) as it is regularly in the commercial interest of parties to complete a discovery / disclosure exercise in order to demonstrate that they in fact were not at fault in the dispute. Notwithstanding the regular lack of enforcement these statutes remain in place and there is very real and understandable reluctance from parties located in foreign jurisdictions to breach domestic law.

Global IT systems It is also worth remembering that IT systems in global enterprises are rarely based in a single jurisdiction. Email servers can be located anywhere in the world and back up systems may well be stored in totally different locations. The prevalence of centralised database systems and data storage using the “cloud� also mean that data that users may assume is stored locally is in fact stored in other parts of the world. It is not prudent to assume that data that is likely to be collected and processed in what would appear to be a domestic dispute is actually located solely within the jurisdiction of England and Wales and questions must be asked of clients in every case to ensure that privacy laws are in fact no being inadvertently breached.

Blocking Statutes Furthermore The Hague convention procedure is unlikely to work because some states (Italy, The Netherlands, Sweden France and Switzerland) have explicitly banned the use of the convention for discovery / disclosure requests using what have become know as blocking statutes. These blocking statues impose fines and in some cases

Practical Solutions There are no straightforward easy options in conducting disclosure exercises especially where data is stored in alternate jurisdictions. Parties should always appoint an individual who has overview of the disclosure exercise as a whole. A central point

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of management is essential to avoid duplication of effort and confusion at every level. Once the person in overall charge of disclosure has identified data that is likely to be stored in foreign jurisdictions the first action to take should be to investigate whether in fact that data is also stored locally. The nature of modern IT systems means that there are high levels of duplication and data which at first instance looks as though it is going to be complicated to obtain may well in fact be relatively simple to collect and process. If it is in fact the case that the data is only located in a foreign jurisdiction then the first step should be to broadly investigate the likely difficulties that are involved in locating the data, a good first step to doing this would be to refer to the DLA guide mentioned earlier on in this article but it must always be only a broad guide and it will always be prudent to obtain local advice from the jurisdiction involved about the best way to obtain that data. If, once that advice is obtained, it is apparent that the costs involved in obtaining the documentation is going to disproportionate or unreasonable in the circumstances of the case then it may be possible to exclude that documentation from your disclosure exercise by relying on CPR 31.7 (2) that states; 31.7 (1) When giving standard disclosure, a party is required to make a reasonable search for documents falling within rule 31.6(b) or (c). (2) The factors relevant in deciding the reasonableness of a search include the following –

The reasons for excluding documents from the disclosure exercise must be outlined in the disclosure statement and so unsubstantiated assertions that the costs are likely to be too high or the documents are not likely to be significant are more likely to be challenged by your opponents and less likely to carry the weight that a well researched and evidenced statement would do. If parties are unable to legitimately exclude the collection of documents located abroad in this manner then it will be necessary to complete the disclosure exercise in the usual manner. This will would best be achieved by showing understanding of the difficulties that the parties in the foreign jurisdiction may experience in completing the exercise and so to that end if time allows use the Hague Convention. This would have the effect of giving the party giving disclosure domestic court orders with which they would have to comply. As outlined above UK courts may well see this as an unnecessary step as jurisdiction is already established but if done properly it does make the exercise significantly simpler if more time consuming. In the absence of available time then parties would be well advised to seek to agree a very tight criteria under which the search should take place, it should be explained to opponents that these tight criteria are not there to unnecessarily restrict disclosure but are in fact there to enable any disclosure at all to take place. The criteria can be restricted by; • •

(a) the number of documents involved; (b) the nature and complexity of the proceedings; (c) the ease and expense of retrieval of any particular document; and (d) the significance of any document which is likely to be located during the search.

Suggesting very tight filters (custodian, keyword and date) Trying to obtain consent from the individuals involved in the disclosure exercise (if possible) Suggest conducting a redaction review in country to remove the risk of the inadvertent transfer of personal data.

Of course all of this must be done using local resources in order to further limit

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the risk of the transfer of personal data. The procedures and difficulties outlined in the article will change at some point in the future with the eventual implementation of the new EU Data Privacy Regulation. However the changes are unlikely to significantly reduce the level of complication as companies involved in litigation will be subject to very large fines for breaches of data privacy (2% of global turnover or a maximum of 1 million Euros are the likely levels of fine) and so if anything reluctance to comply with disclosure is likely to increase.

Mike Taylor Director I-Lit Parlegals 07766240766 01748810221

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


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Two years on from LASPO, access to justice is suffering Jo Edwards, Chair of Resolution

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t would be no understatement to say that the Government’s cuts to the legal aid system have been controversial. The provisions of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill were met with widespread opposition from the legal profession from the word go. Those from social welfare, children’s rights and church groups were equally vocal in the concerns they expressed. Nonetheless, the Government pushed on doggedly with implementing the proposals. As we know, that determination to see through the reforms has led to where we are today – a family justice system creaking under the weight of unprecedented numbers of unrepresented litigants, with Government struggling to find solutions to channel these people into out of court dispute resolution or to ensure that they have the information and advice they need to manage their case through court with no legal assistance. The removal of legal support for people on lower incomes is having, as we expected, serious consequences. Access to justice is under threat. More than two years on from the implementation of LASPO, it is not only legal professionals who are expressing serious concern about the impact of the legal aid cuts. Two important reports, both highly critical of those who oversaw the implementation and aftermath of LASPO, have been released this year: the first from the Public Accounts Committee and the second from the Justice Select Committee. The reports provide are damning of the Ministry of Justice’s failure properly to think through the long-term consequences of the removal of most family cases from the scope of legal aid. The report from the Public Accounts Committee (PAC), released in February, concluded that the Government’s cuts to family legal aid have hindered significantly access to justice for many ordinary people. This comes as no surprise to those of us who work with separating families every day. The PAC’s report agrees that family

solicitors played a key role in keeping family disputes out of court before the legal aid cuts were implemented. The rise in contested proceedings and drop in mediation numbers since the removal of the majority of family legal aid is no coincidence - it confirms that timely and appropriate legal advice is crucial to helping separating couples manage conflict and costs during their divorce. The PAC report recommends that the Ministry review the impact of the reforms and the ongoing issues that the cuts to legal aid are causing to access to justice in this country. Resolution has long been pressing for a wholesale impact assessment, but as of yet we are yet to see any movement on this. Indeed, with the new Government’s Spending Review scheduled for the end of November, we may expect to see the programme of legal aid ‘cost savings’ continue. In truth, they are not savings if the impact is to deny access to justice. The second report from a Government body on the legal aid cuts, released in March, came from the Justice Select Committee. Among other things the report was highly critical of the failure of the exceptional funding scheme to plug the gaps with funding in appropriate cases. In July this prompted what I described as a “bullish and unapologetic” response from the Ministry of Justice, which included a statement that the exceptional case funding scheme is operating as intended. The response fails to acknowledge at all the seriousness of the problems caused by the legal aid cuts and the very significant impact on families struggling with separation. Resolution members gave evidence to the Justice Select Committee, during its enquiry, about the access to justice issues we are seeing day to day. Key amongst these is the failure of the exceptional case funding provision, hailed during the LASPO consultation as a ‘safety net’ to support the many cases that would not be within scope under LASPO but which nonetheless merited funding due to the exceptional

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circumstances of the case. In practice, in very few cases have individuals managed to secure exceptional case funding. Those that have been successful have, in our experience, largely required extensive legal support (for no payment) in order even to complete the lengthy and complex application form. Resolution and the Justice Select Committee are far from the only bodies to criticise the operation of the scheme. In R (Gudanaviciene and Others) v DLAC and Lord Chancellor 2014 EWHC 1840 (Admin)), CH Mr Justice Collins held that the Legal Aid Agency’s current operation of the Exceptional Case Funding scheme is unlawful. The applicant for exceptional case funding was blind, had profound cognitive impairments, lacked litigation capacity and was unable to care for himself, but was refused exceptional case funding under s10 of LASPO, designed to provide legal advice and representation to those whose human rights would be at risk of breach without funding. Mr Justice Collins found that, ‘The rigidity of the merits test and the manner in which it is applied are in my judgment wholly unsatisfactory. They are not reasonable.’ The Judge highlighted deficiencies in several aspects of exceptional case funding, including the complexity of the application procedure and the nature of the Legal Aid Agency’s decision-making. He concluded that s10 was failing to provide the safety net that was promised by Ministers, making it clear that there will need to be significant changes to the operation of the scheme. He also examined the basic legal aid merits tests and found that the Civil Legal Aid (Merits Criteria) Regulations 2013, as amended, were unlawful, as the amendments prohibited legal aid in poor or borderline cases. Although the LAA has not yet taken any action in relation to the exceptional case funding scheme, it amended the basic merits tests with effect from 27 July. Against this backdrop, the Ministry of Justice’s extraordinary stance that exceptional case funding is operating as intended not only


ignores the comments of the Justice Select Committee and Mr Justice Collins, but also ignores the many individual cases in which funding has been refused, despite judges’ strong protestations to the contrary. At the Select Committee hearings, we heard of alarming cases involving domestic abuse where, due to a lack of legal representation, an alleged perpetrator could cross-examine his victim directly in the courtroom. Resolution strongly advocates, at the very least, that the Government takes heed of the Justice Select Committee’s recommendation that legislation be drafted to protect vulnerable people from being put in this situation, which is tantamount to a perpetuation of the abuse. That this situation, long legislated against in the criminal courts, should continue to exist in our family justice system is a travesty. So, what is the solution? First, whilst it is unlikely that legal aid will be restored in full, at least under the current Government, the Ministry

of Justice and Legal Aid Agency need urgently to carry out a thorough impact assessment and review of the cuts. So far their focus has been squarely on achieving savings in the legal aid spend, so to that end they have hailed LASPO a success. But what of the impact on the court system of all the extra unrepresented litigants? On the dad who doesn’t know how to secure time with his child on separation (and on the child himself)? On the benefits system of the spouse who does not know how to pursue financial remedies on divorce?

This would provide a more comprehensive system of support and enable vulnerable people to find out about all of the dispute resolution options available to them. It is also likely to result in a higher referral rate to mediation, as it would restore a major source point of access that existed before the cuts to legal aid. This would reduce significantly the number of litigants in person using the courts, whose issues do not always require court time but who, without access to legal advice, invariably think that court is the only option.

In addition, earlier this year Resolution released its Manifesto for Family Law. One of our proposals is that funding be made available for initial legal advice in family cases. It may be a combination of services, so that people are able to receive help from a legal professional at the points in the process where they need it most – so even if they end up representing themselves, they have an initial discussion about what they need or want to do.

As we face the spectre of yet further spending cuts, it is imperative that action be taken now - before yet further damage is done to the family justice system, perhaps irreparably. We owe that to all families going through separation.

@ResFamilyLaw www.resolution.org.uk

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Direct Access ... are you delivering? By Jonathan Maskew, consultant at Shensmith Barristers chambers

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t is clear that direct access is playing an increasing larger part of the revenue stream for many chambers and barristers, whether it is a greater understanding and acceptance of this cost effective route by those seeking legal assistance or indeed those offering the service are much more aware of the huge opportunity it offers and therefore the communication and message to clients is better defined, easier and clearer. The impact for direct access barristers can be significant, whilst there are always challenges, those who are flexible in their approach and have the ability to deliver new initiatives are creating some very exciting opportunities and adding real value to the client experience. Clients becoming the driving force …

As always, for those who seek feedback on levels of service, the client is paramount and it’s no different here; “The client is the driving force” and they are seeking far greater efficiency, transparency and affordable legal services in a rapidly changing market. More demanding than ever, with an increasing awareness of their buying power the client invariably wants advice and guidance directly from the barrister and quickly. So the burning and vital question you should be asking both your clients and yourselves in chambers is … “Are we delivering for our direct access clients?”

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For many clients, the typical route has not managed their expectations well enough and has been frustrating for them to say the least. There have always been difficulties, including for example issues with response times, who they expect to respond, the method of response and the lack of clarity with regards to costs emerges more often than not. In addition, clients are often quizzed in detail at various stages, by different people with regards to their legal dispute and the levels of


“friction” between client and barrister is heightened. This friction, caused by this somewhat difficult journey is often due to the lack of barrister engagement at an early stage. From the clients perspective an essential part of the journey is in the early stages and clearly has a significant impact, ultimately making the difference in committing to instruct in a direct access matter or not. This engagement and often through a short initial discussion becomes a vital part of the human intelligence and influence that clients understand and expect from specialist legal advisers to assist them in shaping and influencing a solution to their legal problem or dispute. It is, for them, likely to be their only legal matter and undoubtedly emotionally attached to it of course, therefore, any additional friction caused will only seek to encourage them to think again about whom they share confidential details with and engage with to assist them moving forward and in some circumstances refer back to the typical route of a high-street solicitors firm. Whilst collecting a simple summary of the matter by an electronic form is the norm and expected by the client, if the initial response is merely an opportunity to confirm the information provided by them and by staff who posses very little empathy or life experience, then the ability to add value in any shape of form is missed and ultimately fails to deliver what the client wants and what it says on the tin.... “direct access to a barrister” In seeking the perfect solution, which has to be client focused, it would need to be seamless in it’s approach, offered at a time and location convenient to them, with the minimum of friction, and likely to include or be technology driven.

For some, this is proving to be the start of an online and video initiative to drive simple clear messages whilst pushing the boundaries even further in more effective and dynamic ways to deliver the barrister service directly. ShenSmith Barristers is proving that one solution that is adding real value to the client experience, saving on costs and time is through the innovative use of an online video conferencing platform. With free monthly online legal surgeries via video conferencing, this is proving to be a very successful route of delivery to businesses, SMEs and individuals who are often deterred from taking legal advice in the first place. In short, this online offering is very much the A, B, C client focused solution; Affordable, Barrister driven, Convenient and Immediate. With such overwhelmingly positive feedback to date from clients who have taken advantage of the offering, all those involved have clearly seen the benefits and value added to this innovative way of delivering barristers directly. Whilst there are many new exciting ways to deliver and huge speculation with regards to the provision of future legal advice with the introduction of “legal robots, virtual assistants” and such like, to stand out and differentiate for clients remains firmly with those working towards the ability to deliver directly .… you, the barrister.

There is no doubt that swift barrister engagement with a view to building the relationship is becoming an essential ingredient for clients when deciding to instruct and those who have well-developed inter-personal skills are adding real value to the experience and proving to be vital. Indeed, some exciting opportunities are emerging for those who embrace, understand and where necessary make appropriate changes to their delivery and engagement strategies. Innovative ideas from new entrants will create healthy competition but often they are based simply on an idea and concept with greater use of technology delivering “you” the barrister. Without the “barrister” element, the ability to convert the idea into the action and doing it, ensuring it adds value then it will deliver nothing more than a new concept of delivery and very little outcome for the client. Many who have ventured into the video message and recording will have seen the benefits of it’s delivery of a clear message to clients and the cost effective solution instructing barristers directly provides. Research shows that the YouTube viewing time grew 60% last quarter reaching staggering numbers. It goes without saying that the increasing use of video to communicate the offering to clients will prove a major play for those embracing such methods.

Jonathan Maskew is a consultant to chambers and has worked extensively in a variety of roles with Barristers and Chambers for over 25 years. As Co-founder and Director he is currently working alongside Daniel ShenSmith with ShenSmith Barristers, a new remote business support model for barristers and chambers throughout the UK and further. If you are interested in discussing any of these matters further or wish to contact Jonathan you can email him directly jonathan@shensmithbarristers.co.uk or visit www.ShenSmithBarristers.co.uk

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Do we need a global Declaration of Internet Rights? By Paul Tweed head of Media and Dispute Resolution, Johnsons Solicitors

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he battleground for us media lawyers has shifted dramatically over the past five years. The online news and gossip services have stepped in to feed the public’s almost insatiable appetite for drama and scandal, when and where they want it! However, in tandem with these developments, there have arisen an alarming disrespect for laws and values. In the days of the traditional media, it was primarily an individual reputation that would come under attack. Nowadays the online focus is just as much on bullying, harassment and blatant breaches of privacy, which international laws often appear powerless in offering any form of realistic protection. Today, there is a distinct lack of effective remedies available within the legal systems on both sides of the Atlantic. It doesn’t matter whether the culprit is a “man of straw” with nothing to lose or a deranged individual who will stop at nothing to vent his fury towards any individual who may have offended him. The same problems exist. And it is clear that this scenario is only likely to escalate with many of the more unscrupulous bloggers seizing what they perceive to be their “moment in time”. Many of course hide behind the cloak of anonymity or in perceived safe havens such as the United States, which offer First Amendment and other protections in the name of free speech. However, even the US has in recent times learned to its cost that the online monster moves with such dramatic speed. Many times the damage is disseminated around the world in a few seconds before any steps can be taken to restrain publication. Julian Assange and Edward Snowden are both prime examples resulting from this unfettered approach. So, can anything be done? Or do Government and citizen alike have to accept that the protection of privacy and reputation will soon become a thing of the past? Could the destruction of privacy be contiguous with the gradual demise of the print media?

The obvious solution would be for national judicial systems and governments to take a concerted international approach towards coordinating civil and criminal laws. International laws, reflecting the border free status of the internet could ensure the same level of protection wherever an online attack has been initiated or published. Unfortunately this can only be wishful thinking given the dramatically different attitudes towards freedom of speech and reputational protection around the globe. Such jurisdictional differences have been starkly obvious so far as defamation laws are concerned. However, I believe that the liberal approach adopted in some jurisdictions towards the protection of reputation has indirectly, but inevitably served to lower the online privacy barrier at the same time. Rarely a month goes by without another scandal involving a breach of security or the release of confidential information. Lives have been put at risk and national security threatened. However, while there remains a lack of consistency between the approaches taken by individual countries around the world, there will always be a loophole or a safe haven for those deciding to breach their position of trust or misuse private information for their own ends or misguided altruistic beliefs. Some countries are taking decisive action. This year New Zealand has criminalised Internet trolling involving harmful digital communications, which may be “truthful as well as false information, intimate visual recordings” such as nude or seminude pictures or video sharing without permission. Under the new law, any person found guilty of Internet trolls will face a sentence of minimum two years imprisonment. The Bill was passed by the New Zealand Parliament with an overwhelming majority of 116 to five. But will this act as a beacon for other countries / continents to follow? What are the chances then of an extension to the Hague Convention or even this critical issue being raised

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at the next G7 Conference of World Leaders and what role can we lawyers play in encouraging international Governments to put this issue towards the top of the political agenda? We already have an intolerably high suicide rate resulting from online bullying. How many more deaths will it take to encourage a genuine international approach to dealing with the internet behemoth? Recently, the Italian Parliament announced its creation of an international legal framework promoting freedom, equality and access to cyberspace for all. Notwithstanding the fact that this innovative approach has no legally binding teeth, the thinking behind the Declaration has been to encourage debate, while hopefully providing a starting point for other countries to consider their own position regarding internet regulation. The Italian Government will bring this Declaration of Internet Rights to the Internet Governance Forum in Brazil in November this year. The intention will be to generate debate, if not a solution, regarding the need to balance free speech against the protection of individual rights. However, I firmly believe that consistency has to be the key here! At the very least, this Italian Declaration of Internet Rights highlights the fundamental principles urgently required for effective regulation. We, the legal profession, have much to offer in terms of both lobbying skills and sharing our expertise and experience from the front line of the battle. Paul Tweed heads up the Media and Dispute Resolution departments of Johnsons and practices in the jurisdictions of England & Wales, Northern Ireland and The Republic of Ireland. He is also registered as a Foreign Legal Consultant by the State Bar of California.


Blood Pattern Analysis – is it worth the paper it’s spattered on? Jo Millington - Senior Forensic Scientist, ArroGen Forensics Ltd

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here is a widely held view that Blood Pattern Analysis (BPA) is subjective and although this isn’t the case, to some extent we, that is forensic scientists, have only ourselves to blame for the confusion. Historically, forensic experts would be summoned to a crime scene to offer an opinion regarding the blood-letting events that had taken place and we would happily do so without necessarily demonstrating the findings on which our opinion was based. Who would want to see our working out anyway? The provision of an explanation to fit a particular set of observations can be useful in the investigative phase of a case but the explanation is unlikely to be exhaustive and at worst, without the appropriate caveats in place, it has the potential to be misleading. Recording incomplete observations (or not recording them at all) doesn’t allow other operators to compare and contrast ideas, re-evaluate findings, interrogate the thinking or establish if the interpretation was robust. This does not fit comfortably with all that we expect of science and it doesn’t help to build a database of transferable knowledge on which future thinking can be based. It also doesn’t help that up until fairly recently no-one had the time to publish their thinking and because the early development of ideas in BPA was necessarily driven by practitioners, not academics, there was less of a culture to formalise knowledge and conceptualisation. Although this has arguably resulted in a gap in the BPA literature, what is available is not insignificant. This paper aims to demystify BPA, outline how it can contribute to an investigation and dispel the myth that BPA incorporates an element of black magic.

BPA is an objective science underpinned by research that dates back to (at least) the late 19th century. Piotrowski’s work, the ‘Origin, shape, direction & distribution of the bloodstains following head wounds caused by blows’ (1895) forms the foundation for the observation-based interpretation that can be applied by scientists today. In this context, objective is used to infer concurring opinion derived independently by two (maybe more) individuals coming to the same conclusion about the same observation. This is the gold standard for BPA and it is a position that we strive to achieve through training and continued professional development, whilst being cognisant of the fact that the evidence is based first and foremost on human observation and taking steps to accommodate this. As with most scientific disciplines, bloodstain pattern analysts use a bespoke taxonomy and terminology (www. swgstain.org/resources; accessed August 2015) which is designed to foster international consistency. As with most jargon, scientists must work to demystify these terms during the course of their reporting, or whilst giving oral testimony, so that everyone else can understand what they are actually talking about. The unique terminology is particularly evident in the term ‘spatter’, which is used to describe bloodstaining or patterns of bloodstains caused as a result of blood droplets landing on a surface. It is often the case that the gruesome details of crime are announced in terms of the spatter distribution that was left and it is true that droplets of blood, and the

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stains that they create, can be extremely probative. Impact spatter, bloodstaining generated as a result of a blow being delivered into a source of wet blood, can be indicative (but not exclusively so) of activities typically encountered in assaults for example. Cast off bloodstaining (blood cast off an object wet with blood) can be equally informative and may appear as a drip trail or after having been thrown from an arcing weapon. Other forms of spatter include that which has been generated as a result of gunshot injuries (back and forward spatter) or projected from a damaged blood vessel, although the latter does not require an external force to create it but is distributed under the influence of blood pressure. Each can form distributions of blood that are characteristic and, in some cases, produce patterns that are unequivocal. This is particularly the case if blood has been mixed in some way before, or after, deposition for example with saliva, or attempts have been made to change its appearance, such as if cleaning has taken place. This is the theory, and blood distribution scientists should have seen and preferably created these types of patterns (and others) for themselves in training, using animalderived blood in order to establish an understanding of how blood behaves in controlled conditions. This knowledge prepares operators for the chaos of the real world. Caserelated bloodstaining rarely demonstrates the crisp features that allow bloodstains to be classified categorically and usually indiscrete bloodstaining, blood that has been distorted and/or does not show sufficient diagnostic features, is encountered. The assessment of bloodstaining on clothing and footwear can be particularly challenging due to factors such as partial pattern capture, the dynamic nature of assaults, and folds and creases that are in place at the moment that blood is deposited. In comparison, the examination of blood at crime scenes can offer a more complete picture, providing patterns of blood that are amenable to reconstruction. By understanding the influence that factors such as the physiological characteristics of blood, surface interaction, activities taking place during blood loss and the circumstances associated with a particular case, an expectation that blood could transfer to an individual given a set of alleged circumstances can be established. This is where BPA can add value to a case and critically can be used to evaluate the absence of blood, an area of BPA that is frequently underutilised. It is simply not the case that when blood is spilled the perpetrator will be heavily bloodstained, and in many cases those not involved in an assault can be stained more heavily than the assailant themselves. BPA at its best can offer an insight into blood evidence that not only allows activities associated with blood loss to be determined but critically, from the perspective of the court, can be probative when evaluating the alternative scenarios that have been proposed: he kicked versus he did not kick, but walked through the blood of the injured party. In my experience, blood distribution evidence often plays second

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fiddle to the cogently argued gold standard of DNA. But, when the source of the blood (i.e. who’s blood it is) is not challenged (e.g. she did not punch but gave medical help, thereby accepting that blood from the injured party is present) ‘The Question’ emphatically changes from ‘who could the blood have come from?’ to ‘how did it get there?’ The latter is frequently overlooked or raised at the last minute, and can be posed for the first time to the individual standing in the witness box, which is unsatisfactory. It is the scientist’s job to assist the court in putting this sometimes complex science into context and to present the strengths and limitations of blood findings in a clear and informative way using uncomplicated language. More importantly it is critical that any opinion is clear, justified and independently corroborated. We can only do this if ‘The Question’ is asked sufficiently early in the investigative process to be of use and to some extent this requires education and investment. Using DNA analysis to determine the potential donor of blood does not help in addressing how the bloodstaining may have been deposited. Unlike a DNA or drug identification test, it can be difficult to put a unit price on BPA. Evaluative thinking is rarely time defined and this perceived open-endedness can be unpalatable when forensic budgets are under increased pressure. But imagine if the spend associated with DNA testing, for example, was instead used to determine how the bloodstaining had been deposited. This may be a relevant proposition if the person accepts that blood on their clothing came from a particular individual. Focusing a forensic strategy on BPA and not DNA requires bold decision making but this becomes easier if the protagonists have BPA knowledge and ultimately a BPA examination has the potential to generate an output which is more relevant to the court. In my opinion, every forensic operator who searches for, examines, or recovers samples of blood should have a level of BPA training which will support the early identification of relevant staining and the appropriate use of targeted testing. This is certainly not a short-term solution but if we can change our perception of BPA, rather than asserting that we can’t afford to do it, we will encourage the view that, in the context of blood cases, we simply cannot afford not to. Case example: An individual was charged with assault, namely kicking and stamping upon the complainant. The injured party suffered a number of injuries including to his face, which bled. Bloodstaining was found on the footwear of the alleged assailant and a sample of blood, from the largest stain that was present, was recovered for DNA analysis. The sample generated a full DNA profile, which matched that of the victim and a DNA-based report was submitted to the court. In interview with police, the suspect said that he had been out drinking with his friends, when someone from the group started to argue with the victim and a fight took place. The suspect was nearby at the time and he gave a very clear eye-witness account, but denied being involved in the attack. He said that he did not kick or stamp upon the victim’s head.


As part of the defence review, the defendant’s footwear was re-examined. On the sole of his training shoe, within the recesses of the tread, a series of small discrete stains were observed which were associated with small runs or ‘tails’ of blood. This staining was indicative of percussive staining. Percussive staining can be formed when an item that is wet with blood comes to an abrupt stop. The characteristics of percussive staining can be further used to infer the direction in which the bloodstained item was moving at the moment at which it came to an abrupt stop and in this case, were suggestive of the training shoe having been moving towards the toe. In my experience, any movement must stop with considerable force in order for stains of this type to be generated. Walking and running for example rarely result in the production of percussive staining unless considerable forces are involved and a kicking action is more likely to cause staining of this type. In the context of the case, the presence of this form of staining on the footwear of the defendant was arguably significant and had it have been identified during the initial screening examinations, could have been helped CPS in reviewing the file.

If you would like to attend an introductory seminar on Blood Pattern Analysis, please contact the author at: ArroGen Forensics Ltd, Unit 12, The Quadrangle, Grove Technology Park, Wantage, Oxfordshire, OX12 9FA j.millington@arrogengroup.co.uk

Coventry v Lawrence By Greg Cox, Solicitor-Advocate and Partner at Simpson Millar LLP

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s the panic that set in following the July 2014 Coventry v Lawrence (No 2) judgment has now abated after the Coventry v Lawrence (No 3) judgment in July this year, it now seems an appropriate time to look back at how the issue arose, how it was developed and how it was dealt with by the Court. A brief history On 23rd July 2014, the Supreme Court handed down judgment in Coventry v Lawrence (No 2) and opened the door to a year of doubt and confusion. Coventry was a case arising out of allegations of nuisance including the liability of landlords for nuisance. The issues arising from the judgments in Coventry Nos 1 and 2 have been dealt with eloquently elsewhere. What

concerns this article is the issue on costs which sprung into life when Lord Neuberger, in Coventry (No 2), said this, “In the light of the facts of this case and the Strasbourg court judgments relied on ….it may be that the respondents are right in their contention that their liability for costs under the 1990 Act, as amended by Part II of the 1999 Act, and in accordance with the CPR, would be inconsistent with their Convention rights. However, it would be wrong for this Court to decide the point without the Government having had the opportunity to address the Court on the issue.” The consequences of these words were far reaching: •

(CFAs) and After The Event (ATE) policies in place that would be undermined. Arguments about the compatibility of the 1999 Act Regime had effectively been shut down by the Court of Appeal in 2011 in Sousa v London Borough of Waltham Forest [2011] EWCA Civ 194. However, the 1999 Act Regime had been disavowed by Jackson LJ in his reports, and recoverability of success fees and ATE premia removed by the LASPO changes from 1st April 2013. Did this mean that the judicial wind was now blowing in a different direction than it had been in Sousa? One commentator put the true amount in issue at £15billion.

There were many thousands of live Conditional Fee Agreements

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The Interveners Recognising the potential effect on the Bar, the Bar Council sought - and was granted - permission to intervene, and a team consisting of Nicholas Bacon QC, Mark Friston and I from the Bar Council’s Remuneration Committee volunteered to work on the case. The Bar Council were joined, as interveners, by the Secretary of

State for Justice, The Law Society, The Department of Justice Northern Ireland, The Association of Business Recovery Professionals, the Media Lawyers Association, the Asbestos Victims Support Group Forum UK and the Association of Costs Lawyers. The issue The question at the heart of the appeal was this: was the system of CFAs and

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ATE insurance, in force from 2000 to 2013, compatible with the European Convention on Human Rights? That system, implemented by the Access to Justice Act 1999, provided that success fees under CFAs and the ATE insurance premiums were payable by unsuccessful litigants. The system has, of course, now changed - with effect from 1st April 2013 - thanks to Sir Rupert Jackson’s recommendations


but there are many thousands of cases still running under the old arrangements. The facts The facts, insofar as relevant to the issue at stake, can be briefly summarised as follows: Katherine Lawrence and Raymond Shields were the owners of a bungalow in Suffolk which was about 800 metres away from a stadium used for speedway and motor car racing. Lawrence and Shields brought proceedings for an injunction and damages in nuisance as a result of noise from the track. The action was taken against the operators, David Coventry and MotoLand UK Limited. Lawrence and Shield recovered damages of £20,000 and were awarded an injunction. Proceedings against the landlords were dismissed. The value of the nuisance, had there been no injunction, was £74,000 on the evidence. The difficulty arose because the parties fought each other to a standstill, first in the High Court, where the damages and injunction were awarded, next in the Court of Appeal - where the original decision was reversed - and then finally in the Supreme Court, which reinstated the original decision (with some modifications). A second hearing in the Supreme Court determined the issue of the liability of the landlords for the nuisance. The sting in the tail was this: the judge at first instance made an order, quite properly, that Coventry and Motoland pay 60% of Lawrence and Shield’s costs. Those costs were described as “eye catchingly large” and amounted to over £300,000 of which 60% is circa £180,000. Additionally, under the Access to Justice Act regime, Coventry and Motoland were liable to pay a success fee of circa £130,000 and an ATE premium of circa £183,000. Coventry and Motoland argued that payment of the additional sums for the success fee and ATE premium was contrary to their Article 6 or Article 1 First Protocol cases. Further costs were incurred in the Court of Appeal and then in the Supreme Court, adding to the costs burden. For completeness it should be said that the amount of costs incurred was not the subject

of criticism, but rather an inevitable consequence of hard fought litigation over 11 days in Court followed by two appeals. The Judgment The Court decided, by a majority (Lord Clarke and Lady Hale dissenting) that the Access to Justice arrangements (and particularly the secondary legislation under which it operated) was compatible with the European Convention on Human Rights. Lawyers breathed a huge sigh of relief but, perhaps, not quite as large as the sigh from the government who had faced the potential £15bn bill. Lords Neuberger and Dyson held that, by reference to the generality of cases, the Access to Justice arrangement was justified by the need to widen access to justice following withdrawal of legal aid, that it was made following wide consultation and fell within the broad area of discretionary judgment of legislature and rule makers. There was, it was said, no perfect solution to the problem of how best to enhance access to justice. Interestingly, and topically, Lords Neuberger and Dyson (with whom Lords Sumption and Mance agreed) recognised that the current system introduced via the LASPO reforms, following Sir Rupert Jackson’s recommendations, contained inherent restrictions on access to justice. Indeed they went further, setting out that it was impossible to devise a fair scheme to promote access to justice to all litigants without a widely available civil legal aid system. Lords Neuberger and Dyson also accepted the Bar Council’s submission that clients and their lawyers had a legitimate expectation that the Court would not (at least not without reasonable notice) decide against recoverability where the Court had previously allowed recovery of the costs and ATE premium. It was noted that such a decision would impact on many thousands of pre-April 2013 cases and mesothelioma, insolvency and publication/privacy cases. The legitimate expectation clients and their lawyers had in the established

system of costs recovery was also accepted by Lord Mance (with whom Lord Carnwath agreed) as a matter that the Court ought to take account of in its decision, and not merely (being itself a protected possession within A1P1) being raised in a Strasbourg claim against UK. Conclusions The judgment lifted a cloud of uncertainty that had hung over litigants and their representatives since July 2014. It was particularly helpful that the majority of the Court gave a clear judgment reinforcing the rights of litigants and their lawyers, and this should avoid the potential for large scale satellite litigation. If there had been stray words or comment in the judgment these would, inevitably, have been pored over. It is particularly interesting that the Court accepted The Bar Council’s submission that litigants and lawyers had, and have, a legitimate expectation (and protected possession rights under Article 1 First Protocol) in recovering fees and premiums properly incurred under the pre LASPO regime. This may be a point of more general application in the future. The LASPO system is still bedding down but the observations that the current LASPO system may inherently restrict access to justice will resonate with some and will undoubtedly provoke further debate. Case notes I would like to pay tribute to the countless hours put into the case by Nicholas and Mark and those behind the scenes at the Bar Council. It is also right to acknowledge the contribution of the SBAs and PIBA in particular with Andrew Ritchie QC and Martyn McLeish in particular putting in detailed and helpful submissions from the perspective of the personal injury bar and to Kieron Beal QC instructed by the Law Society.

Greg Cox is a Solicitor-Advocate and Partner at Simpson Millar LLP, he can be contacted at greg.cox@colemansctts.co.uk

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IT Department vs. Barrister By Danny Killeen, Director, Sprout Legal IT Specialist

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an’t we all just get along? Is that even possible? I believe it is. The reason for my optimism is that the IT user requirements of the average barrister are not complicated. Not at least when compared with your typical solicitor who has more line of business applications and uses them on a daily basis. That is not to say that Barristers are technophobes, simply that you have less complex requirements as end users. The good news is, IT is here to help you get the maximum from your investment. So what does the typical barristers use? Word, Outlook, a Web Browser and Diary access. Possibly a PDF conversion or Optical Character Recognition tool (OCR) too. The way that IT translates this requirement is; Endpoint encryption to protect files, anti-virus to stop the bad guys, patch management to fix security vulnerabilities. Monitoring for device errors/infections/inventory, so if something goes wrong, it will be fixed. Microsoft Office application installation and updating, print queue deployment for all to share the same print services, and finally, remote access installation, configuration and training to allow working from any location. This is quite a lot for IT to consider, and this is just on that one computer. IT is not an array of flashy lights and whirring fans, poor beard trimming and thick rimmed glasses, sucking of teeth and patronising explanations of why you really ought not to have done that. Providing reliable services, no matter how simple they might appear takes real skill and dedication to deliver. If your services are reliable and your support dependable then we are all winning. If not, engage and find out why not. Please report anything you need, what is missing, what your challenges are, and let IT deliver a solution that benefits all – if you have an IT Committee speak with them, if not, talk to your IT Manager or Account Manager if outsourced. You never

know, you may already have the tools to address your problem. The responsibility of IT to the legal market/barristers’ chambers is considerable – both, chambers and individual barristers. Barristers work under high pressure to deadline, and we, in Legal IT, truly understand and respect that. The amount of work being done by chambers’ in-house team, or outsourced IT partner, to address the chambers’ needs is not to be overlooked. The presentation of services whether working in chambers or remotely is but a fraction of the system as a whole. The fact that you might not appreciate what IT does behind the scenes means that your IT team are doing well. You should not have to concern yourself with it. As to what IT looks like when we, in IT, have only our technology hats on - IT, is everywhere. From your VoIP desktop phone through to that Internet Café PC that you logged onto to check your webmail on holiday, and everything in between. The number of different technologies that come together to reliably present a call to your desk, or a webpage to a PC abroad is quite amazing (If only we had time to stop and appreciate it). That it works at all is quite impressive (at least with that techie hat on), but work it does. Add compliance and security requirements, backup, disaster

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recovery and redundancy that is necessary, and that amazing system just gets a whole lot more complex. So why all this complexity? All I want to do is print! The reason you cannot print is because you do not have your door access fob with you that enables you to walk up to any chambers’ copier, authenticate, and securely print your documents. IT has moved on - from the periphery of your business providing a Diary and Email into a business critical set of services that allow you to work productively, in a secure manner, from wherever you are. Remember, it is not all that long ago that we were able to get email on our mobile phones. Now you can access all of your chambers files, remote desktop, email, take files offline, edit and securely share them, view your intranet and Diary, participate in a video conference, as well as authenticate via two-factor, all from your mobile or tablet. That is quite a staggering step forward. Or, is it. Technology is only ever an enabler if you take the time to learn how it can benefit you. Technology alone solves few of your challenges, but, if you are open to training or indeed reading those guides which IT helpfully send out, then you complete the investment made in your systems by investing your time to fully benefit from them. It may sound prescriptive when you


are self-employed, but there is much to be gained by sharing standard applications and services. Consider how much time it takes to find an application you need. Install several for trial whilst learning broadly how each works. Now multiply that by your hourly rate. Now multiply it again by how many within chambers have, or are doing the same. Now all call IT and ask them to fix the 12 different products installed, that all essentially do the same thing, but work in a dozen different ways and wonder why it is not a 5-minute-fix. Still, there will be one off applications that are needed for a specific case such as CCTV footage viewing, remote access to client or government systems, bespoke file sharing or digital forensics. Simply, the fewer unique applications that are in use, the more efficient your IT team will be in supporting you and the happier you will be. This complexity is unavoidable and will always exist, but we can certainly make the user experience better, repeatedly, by centralising applications and data within a virtual desktop

environment so that you can log on to a standard set of services from any Internet connection. If we work in this way the email and file content remains on your servers, behind a firewall and is regularly backed up. You can even get rid of the PC and use a thin-client device to connect to a central desktop (cheaper than a PC, with no moving parts). The thin client needs little intelligence beyond sending your keyboard and mouse inputs and displaying the resulting output on your screen. Obviously, there is still a need to take files offline for those occasions when you disappear into a tunnel, or book that idyllic working holiday, but find you have no Internet connection. Or, travel on a plane or similar. We cannot avoid the requirement for encryption if the files and email are to be stored on a device, so if you can work in the central desktop, you can simplify IT’s life somewhat by removing the burden of end point maintenance and management. This in turn saves considerable time and expense.

that all barristers struggle with is the amount of digital content that now arrives via email. Especially PDF documents that you need to annotate or redact, convert to a word document for editing or comparison. There are many products out there that will do all this for you, but why not agree and use a standard product that can be used for the benefit of all. This will allow a standard guide or training to be put in place. It will ensure that IT are a step ahead in terms of support and version upgrades to provide security patches or product enhancements. We will also let you know what the new features are and how to use them. I am going to end on a controversial note. Your experience of IT is your problem. You have the right to demand what you like of “IT”, so don’t let the annoyances fester. Communicate your requirements through the correct channels and get someone from your IT team to sit with you and understand your experience. The best in this market will already be engaged in this way and put your needs ahead of technology any day of the

Our research shows that one thing

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Nunn so blind as those who cannot see By Professor Allan Jamieson and Dr Rhonda Wheate, The Forensic Institute “It is important to emphasise that the procedure leading to trial is specifically designed to give the defendant the fullest opportunity to receive disclosure of the information in the possession of the Crown and, with the benefit of that disclosure, to investigate the evidence and, in particular, the forensic evidence. … This thorough and layered procedure provides the general and main safeguard against wrongful convictions. It is for a defendant in a criminal case to utilise best the opportunities that the procedure affords. … What is essentially sought by the claimant is access to material to enable the case to be reinvestigated and re-examined. The time for that investigation and examination was the trial.”

So says the judgement in Nunn v Suffolk Constabulary thereby blocking the route to appeal for some defendants. As is frequently the case, we will never know how many. The Court’s touching, if naïve, faith in the ‘thorough and layered procedure’ insofar as scientific evidence is concerned, appears to misunderstand the entire legally aided forensic scientific endeavour. Let’s begin at the beginning : The solicitor (according to reports, increasingly underfunded and demotivated) receives the case and must decide whether an expert is required at all. While in normal life we normally seek to obtain value for money – and indeed that was once the government mantra too – the Legal Aid Agency is now focussed on the cheapest expert that the solicitor can identify. It seems the LAA would rather pay a little for a useless opinion than a bit more for a useful one. The problem is that the LAA don’t know which one

they are going to get; only that it is the cheapest one. Remembering that those experts employed by the prosecution are not subject to any ‘guidelines for payment’, what can the defence solicitor expect to get? The cuts in Legal Aid affect not only the legal team. Experts’ fees (and I am discussing here the forensic sciences mainly) were cut by about 35% in the last two years. They are much less than half what the ‘market’ achieves when the expert is not working for Legal Aid. Reductions in police contracted forensic science caused the redundancy of scores of forensic scientists who promptly set themselves up as ‘defence’ scientists. Few of these have the administrative and scientific backup (e.g. access to current literature and peer review) which improves and maintains the quality of their expertise; and of course they are compared negatively to prosecution scientists working for the police in large firms. Those who maintain laboratories must pay for the purchase, maintenance and replacement of equipment yet their rates are the same and sometimes

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less. Recently, one trace evidence lab (Contact Traces) has announced its closure. This irrational assessment by the LAA of the actual cost of expertise is illustrated by the guideline rate for a handwriting expert, which needs no degree and is arguably a skill, is the same as that for a DNA analyst who can be expected to have a degree, be competent in a number of complex areas including statistics, and have to maintain knowledge of a rapidly developing and arcane discipline. Why is a toxicologist ‘guideline’ fee greater than a vet’s? The solicitor engages the expert dictated by the LAA. Nowadays, if the defence seek the, “fullest disclosure”, of the forensic evidence this will require another trip to the LAA to fund the prosecution lab to disclose the evidence against the defendant (an approach endorsed by the Forensic Science Regulator whose scope seems rather stretched if this is part of it). Perhaps removing that fee, which did not exist until recently, would be one


way of reducing the Legal Aid budget . Surely there is something abhorrent about the defendant having to pay to see the evidence against them whether funded by Legal Aid or not? So the, “fullest opportunity”, is available only at a cost, and only if the defendant is diligent enough to request it. Formerly, we (at The Forensic Institute) visited the lab and scan-copied the entire case file to enable a thorough and diligent examination of the file (see R v T for one example of the result of that study), now we are limited to receiving copies of the portions of the file that the provider sends us, unless we can again raise funds to travel to the lab despite the increased strictures of LAA resources. So the system, “specifically designed to give the defendant the fullest opportunity to receive disclosure”, simply fails. The expert must next assess what they have and develop their opinion. The Forensic Science Regulator recommends that scientific opinion is peer reviewed. Just who does the lone practitioner review their results with? Will the LAA pay for such a

second opinion? And what if the single practitioner’s opinion wrongly agrees with, or at least does not challenge, the prosecution? It would appear that it is just the defendant’s tough luck if a scientist who would have countered the prosecution’s expert was either not identified or just too expensive for the Legal Aid Agency. The expert may or may not agree with the prosecution. If they do agree, then the LAA are unlikely to grant further sanction to seek for an alternative opinion (unlike the police who can shop for an opinion by asking another provider to ‘reexamine’ the evidence). As in every other profession or skilled trade, not every scientist is the same. Further, it is perfectly normal to find two scientists drawing different, but reasoned and rational conclusions from the same data; it is unnecessary that there be ‘new developments in science’ for there to be ‘new evidence’; surely another scientist with a different reasoned opinion is ‘new evidence’ if it was not available to the defence at trial. So while in an ideal world the laudable and understandable view of the Court that, “The time for that

investigation and examination was the trial”, the system to achieve that ideal is demonstrably lacking. The “opportunities that the procedure affords”, are simply inadequate and therefore undermines the consequence of the Court’s judgement; the now routine refusal by the police and CPS to enable another look at the scientific evidence in a case. I end here where I ended before;

“Surely the real measure of cost effectiveness, at least for the moment, is that the accused is given the same opportunity as the prosecution to choose their experts. Do we want the best criminal justice system or the cheapest? It is almost certain that the two are mutually incompatible.” The Court appear to have the desire to support that view, but either through ignorance or intransigence, appear unwilling to acknowledge that the system underpinning their view of a thorough procedure simply does not exist, yet insists that everyone acts as if it did.

Chambers as service companies By Scott Leonard, Partner in the Corporate & Commercial Team at Russell-Cooke LLP

T

raditionally Chambers have operated as unincorporated associations, with the Head holding Chambers assets, employing staff and entering into contracts on behalf of Chambers. Leases of premises are commonly entered into by four senior members of Chambers, on behalf of all members. Chambers assets are held on trust for the members and under the constitution members agree to indemnify the Head of Chambers and other members against any liabilities incurred on behalf of Chambers. Whilst this structure has performed perfectly adequately in the past, many Chambers are now questioning whether this structure remains fit for purpose.

Difficulties with the traditional model

exacerbates the issue.

The model described above was developed when Chambers were generally smaller, as were the liabilities involved and the resulting personal risks to those incurring them.

Although Heads of Chambers will generally (although not universally) benefit from indemnities from Members under the constitution, it is an uncomfortable position for the Head to be primarily liable to creditors and potentially having to enforce indemnities against members (and in some cases former members).

As Chambers grow, both in terms of numbers and turnover, so does their expenditure. Rents continue to rise and premises costs, particularly in central London, are now eye wateringly expensive. Added to this is the fact that the Head of Chambers will not necessarily have the same personal relationship with all members as has historically been the case. There is now greater fluidity at the Bar with barristers moving between Chambers more frequently. Many sets are now multi site, which

Finally, there is the practical concern of what happens when the Head of Chambers changes and/or other members who have entered into contracts on behalf of Chambers leave. The departing Head or member will wish to be released from liability and to transfer the burden of the agreement to the new Head and/or other members. This however requires the agreement of the other contracting party and can

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be particularly problematic and costly in the case of leases, where landlord’s consent will be required and their costs of giving the consent will need to be met. All of which means that Heads of Chambers and other senior members may be reluctant to enter into contracts or incur liabilities on behalf of Chambers. As a result many Chambers have, or are considering, putting in place a service company to address these concerns. The service company model One option is for Chambers to incorporate as a whole and operate as a BSB or SRA regulated entity. It will then be on a similar footing to traditional law firms with limited liability to both clients and creditors. However this is clearly a significant step and for a number of reasons, not least the risk of conflicts of interest arising between members of Chambers, is unlikely to be suitable for most Chambers. The more common, and less radical, solution is to incorporate a service company to sit within the traditional structure. Commonly the service company will be a company limited by guarantee, which avoids the need to transfer shares when members leave or join. Either all members of Chambers or the management committee will be the members of the company, and the benefits deriving from membership of the company will be held on trust for all members. The board of directors of the service company will usually comprise of the Head of Chambers and some or all members of the Management Committee. The service company takes on the function of providing clerking and administrative services to Chambers. All Chambers assets are transferred to the service company, which assumes responsibility for Chambers liabilities. The service company will also become the employer of all Chambers staff. The procedure There are a number of steps which need to be taken to set up the service company structure. The company itself will need to be incorporated with appropriate articles of association and register for VAT and PAYE.

company. The transfer is likely to constitute the transfer of an undertaking for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006. The Head of Chambers (as employer) will therefore have an obligation to inform and, if applicable, consult the affected employees (or their elected representatives) in relation to the proposed transfer and any measures to be taken in relation to their employment. There will be a range of other issues for Chambers to consider as well, which will vary for different sets. The process is likely to be reasonably involved and as with any project it is important that there is a clear and workable timetable for implementation, taking into account the need to obtain the requisite approvals within Chambers, third party consents and register for VAT and PAYE. Other issues to consider Leases of Chambers premises can often prove problematic and it is necessary to consider the approach in relation to these at an early stage. The lease will almost certainly require the landlord’s consent to the assignment of the lease to the service company and the landlord will usually be entitled to impose reasonable conditions to any such consent. As the service company will be newly formed with little in the way of assets, the landlord will commonly require personal guarantees from members of Chambers (or some of them) as a condition of giving its consent. As the rent payable under the lease is commonly the single largest expense of Chambers, the requirement for personal guarantees can limit the benefit of putting in place the service company. An early approach to the landlord is therefore prudent. It may be that the liability under the personal guarantees can be capped. A rent deposit or bank guarantee are possible alternatives (although these have an impact on cash flow). The other common problem area is Chambers overdraft facilities and bank loans. Once again, the bank will commonly have requested personal guarantees from members and, if not, will almost certainly do so if the loans are to be transferred to a service company.

The assets and liabilities of Chambers will need to be transferred to the service company by way of an asset transfer agreement between the Head of Chambers and the service company.

One final point to consider, as ever, is tax. It will be necessary for the service company to register for VAT and therefore to charge VAT on members contributions to Chambers expenses. Not all Chambers are registered for VAT and in addition to the increased administration which will result, the VAT will represent an absolute cost to any members unable to recover it. There are other tax implications to be considered as well, in particular in relation to corporation tax and capital allowances. Tax advice is therefore essential.

As the burden of a contract cannot be transferred without the consent of the other party to the contract, contracting parties to material or long term contracts will need to be approached with a request to novate the contract to the service company. Lower value or short terms contract may be left to expire and be renewed in the name of the service

So there are many issues to consider before taking the decision to use a service company. However, with careful planning, putting in place a service company can address many of the concerns arising from an unincorporated association structure and can form part of the solution for a modern, robust Chambers structure.

The constitution of Chambers will need to be amended to accommodate the use of a service company, for example by ensuring that the service company may benefit from the indemnities from Members.

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EXPERT WITNESS SERVICES the barrister

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CHARTERED SURVEYOR & EXPERT WITNESS CENTRAL LONDON Richard G Alford BSc MRICS, LETAPAWE is an accredited Expert Witness with 27 years experience of valuing commercial and residential properties in Central, South East, East and North London areas. All enquiries to Richard G Alford BSc MRICS to: ralford@coppingjoyce.co.uk

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