ESSENTIAL READING FOR BARRISTERS
5 June - 31 July 2018 Trinity Term Issue
w w w. b a r r i s t e r m a g a z i n e . c o m
My own experience I may have been lucky in recent years, but there are several judges about whom I was warned, and warned others, rather longer ago. Some were known for being particularly bad when out of their depth. Others were moodily unpredictable, or inveterately sarcastic when pointing out errors or misunderstandings. A few female judges were known to be particularly hard on female counsel. A very few were just plain mean. Their nicknames were well known and often apt. We probably now have fewer of these judges, but every misbehaving judge (however few there may be) is one too many. The effects are not limited to the most junior practitioners. More senior
A message from BSB Chair, Baroness Blackstone I am pleased to update you on the work that we have been doing at the BSB since my last message in February. We have made a number of important policy decisions recently. Not least of these was our agreement in principle in March about the role of the Inns of Court in the future of Bar training. As I am sure you know, we have been undertaking a major review over the past couple of years of all aspects of the way in which barristers train and qualify. In March, my Board and I considered the BSB’s position in prescribing the role of the Inns of Court taking into account
Judicial Bullying Bullying is nothing new; but far too many of us report still seeing and experiencing it. This includes bullying by judges, which has come to prominence unexpectedly, but having done so, has resonated with many.
barristers have reported their own experiences, and senior silks have admitted to me that there have been times when they, too, have been unable to do their jobs properly as a result of bullying pressure from judges. Andrew Walker QC Experience may help, but it is no Chair of the Bar panacea, and nor should it be needed. What are we talking about? Let us be clear about what we are concerned with. Several definitions have been suggested, including the ACAS definition of workplace bullying , but while definitions are important, I prefer for now to refer to some specific p.8 forms of behaviour. My list is far from
By Phillip Taylor MBE, Reviews Editor of ‘the barrister’ and Head of Richmond Green Chambers
Video Evidence: Handle with Care By David Spreadborough, Amped Software
to sharpen your 22 How presentation skills
By Douglas McPherson, Director, Size 10½ Boots and author of The Visible Lawyer and Package, Position, Profit
New Silks - A pension annual allowance window of opportunity? By Andrew McErlean, Chartered Financial Planner, Saunderson House
the views of all those who very helpfully responded to our recent consultation. There is more information about our decisions on the detailed questions we posed in our consultation in our published policy statement, which is available to read on the BSB website. It is clear that the Inns play an important role throughout a barrister’s career and most of the consultation responses that we received reflected support for their continued involvement before prospective barristers are Called to the Bar and whilst they are still learning. It was felt by most respondents that both student membership of an Inn and participating in a minimum number of qualifying sessions add real value to barrister training. My Board, half of whom are themselves barristers, agree with that analysis. These policy decisions will inform our drafting of p.9 the new training regulations which
Mutiny on the BREXIT A most unlikely rebel leader An Interview with Dominic Grieve QC MP
News 5 6
A new digital service is allowing people to submit appeals over their tax bill entirely online.
Government commitment to fixed recoverable costs welcomed
Publishing Director: Derek Payne 0203 5070 249 email: email@example.com Publishers: media management corporation ltd Design and Production: Jeremy Salmon email: firstname.lastname@example.org
the barrister Trinity Term 2018
02 the barrister Trinity Term 2018
w w w. b a r r i s t e r m a g a z i n e . c o m
Lawyers respond to government’s announcement on diversity Robin Allen QC, Chair of the Bar Council’s Equality & Diversity and Social Mobility Committee, said: “The Bar Council believes profoundly in equality under and before the law. So it is delighted by the Lord Chancellor’s announcement which took place on the 25th of April 2018 that the MOJ will commit funding for a programme of pre-appointment education fo,r prospective applicants for judicial office of all kinds. We see this as a really positive step towards improving judicial diversity which is so urgently needed and so important. “Through its membership of the Judicial Diversity Forum the Bar Council has argued for a PreApplication Judicial Education (PAJE) scheme for over two years. These proposals were endorsed by the Judicial Diversity Forum in the summer of 2017, and last year were commended by the House of Lords Constitutional Committee and the Lammy Review. “We firmly believe our judiciary must
reflect the diversity of the community it serves, drawing on the best talent the legal profession can offer, and have consistently made the point that pre-application training was crucial to increasing the number of candidates from non-traditional backgrounds applying for judicial roles. We are delighted that the Government has recognised this and that both the Lord Chancellor and the Lord Chief Justice and the Chair of the Judicial Appointments Commission have each endorsed this programme. “The PAJE course, to which the Bar Council and other legal bodies have committed a great deal of thought and time, will pave the way for those interested in becoming a judge, enabling them to better understand the skills required, such as the right approach to proper decision-making, handling a jury, dealing with litigants in person fairly, and approaching issues of diversity. PAJE will, we believe, remove the mystery around judicial careers and encourage those who might not otherwise consider taking up a judicial post (but are qualified to do so) to make an application.
“PAJE is of course just one initiative aimed at improving diversity in the judiciary, and is designed to complement other programmes, like the Bar Council’s Silk & Judicial mentoring programmes, programmes run by the other professional bodies and Judicial Office programmes, e.g. the Judicial Work Shadowing Scheme, to name a few. We would encourage those interested in a judicial role to access as many of these programmes as possible. “The Bar Council looks forward to working with the Ministry of Justice, Judicial Office and other professional bodies to deliver high quality training that helps talented lawyers progress into the judiciary.”
“The online course will be open to all. It will be complemented by discussion groups offered first to underrepresented groups on a positive action basis. We believe that the ability to offer targeted support for under-represented groups will give those who may have previously not considered judicial appointment the confidence to apply.
BSB seeks views on removing the restriction on reporting sexual orientation and religion and belief data At the request of the Bar Council, the Bar Standards Board (BSB) is seeking views on whether to remove certain restrictions on the reporting by the profession of sexual orientation and religion and belief data. The current rule in the BSB Handbook states that every member of a chambers or a BSB regulated entity’s workforce must give their consent before aggregated and anonymised data on sexual orientation and religion and belief can be published. The consultation asks whether this is still appropriate and whether they should be treated in the same way as other diversity characteristics, where the only requirement is not to publish
where there is a risk of any individuals affected being identified from the data. Under no circumstances would any member of a chambers or an entity be obliged to disclose their diversity monitoring data to a chambers or entity. The consultation paper considers the potential benefits, disbenefits and the implementation challenges of the proposed change for individual barristers and for the Bar as a whole.
transparency are both fit for purpose and encourage diversity at the Bar. We are interested to hear what people think about all of the issues raised in this consultation paper, in particular, whether this proposal could promote publication rates and contribute to improving diversity at the Bar.” The rule change would require chambers and entities to amend their diversity data policies. You can read the full consultation on the BSB website
BSB Director of Strategy and Policy Ewen MacLeod said: “The Bar Council The closing date for this consultation is has asked us to review these publishing 5 July 2018 restrictions and we are keen to make sure that our rules on disclosure and
the barrister Trinity Term 2018
w w w. b a r r i s t e r m a g a z i n e . c o m
New report shows that becoming a barrister remains highly competitive The BSB has published the fourth annual edition of its statistical information on student performance on the Bar Professional Training Course (BPTC).
This new and updated analysis includes information about students who enrolled in the 2016-17 academic year, as well as those who enrolled on the BPTC in the preceding two academic years.
It also includes statistics on students enrolled on the BPTC between 201213 and 2016-17 who started pupillage following graduation from the course. This provides a wider timeframe in which to see the proportion of graduates who gain pupillage within the five-year window allowed, following completion of the course.
It continues to show, as reports published over the past three years have identified, that the Bar remains an extremely competitive profession. Key findings from the latest report are: • 4,319 students started the BPTC between 2014 and 2017. 71.2%
have passed the course to date; the number of applications for the BPTC for 2016-17 was 2,917. This was 7 more than in 2015-16; 1,424 students enrolled in 2016-17. This is slightly up in comparison to the year before with 24 more students enrolling than in 2015-16; 13.1% of all BPTC graduates in the same period achieved the highest grade, “Outstanding”; the percentage of Overseas (nonUK/EU) domiciled students on the BPTC increased slightly for the 2016-17 cohort to 43.1% from 42.8% for 2015-16 students; of the UK/EU domiciled BPTC graduates, around 42.7% of those who enrolled on the course from 2012-13 to 2015-16 have so far started pupillage. This figure drops to around 40.6% when including 2016-17 graduates as they have had less time in which to gain pupillage; among the UK/EU-domiciled BPTC graduates, 50.2% of pupillages were awarded to women. This was an increase from last year, where the corresponding figure was
48.2%; and 22.9% of BAME UK/EU domiciled BPTC graduates obtained pupillage. This represents a year on year increase of around 2.5 percentage points, but is still low in comparison to the percentage of white UK/EU domiciled BPTC graduates who have gained pupillage (49.5%).
BSB Director of Strategy and Policy, Ewen MacLeod said: “By publishing these statistics every year we are able to use the most recent student data to make sure that our plans to reform the education and training of barristers are supported by the latest evidence. We hope that this latest set of statistics will help students to gauge their chances of success within the current qualification model. The success of any alternative approaches that we may authorise from 2019 following our Future Bar Training programme will be measured by data like these.”
You can view the full report at www.barstandardsboard.org.uk/ media/1932232/bptc_key_statistics_ report_2018.pdf
Record turnover for Exchange Chambers Exchange Chambers has announced record turnover of £30.8 million for the 2017/18 financial year - a rise of 7.3% on last year’s £28.7 million. The full-service Set, described as a “Northern powerhouse” by the independent legal directories, has now set its sights on further expansion in Manchester, Liverpool and Leeds. Said Tom Handley, Chief Executive at Exchange Chambers. “It is encouraging to report that Chambers has enjoyed such a strong financial year. All our departments and practice areas have played their part. “Our financial results reflect the quality of our people and the strength of our client-base. We now have an even stronger platform on which to build.”
Added Tom: “Moving forward, our strategy is to further increase our presence and market share on the Northern and North Eastern Circuits. We will continue to build long-lasting partnerships with solicitors and clients with whom we share values.” With over 170 members, Exchange Chambers is one of the largest and most well-resourced barristers’ Chambers in England and Wales. In recent years, a number of high quality practitioners - both silks and juniors - have joined Chambers from other leading sets. Added Tom: “We provide our members with outstanding practice development
04 the barrister Trinity Term 2018
support tailored to individual aspirations - whether it is developing better quality work, increasing earnings, applying for judicial appointments or taking Silk.” Exchange Chambers has also announced that it will be keeping members’ contributions at the same level, around 12%. Concluded Tom: “This is a very important measure as it demonstrates sound financial management. “Members’ contributions are highly competitive while flexible arrangements are also available and can be tailored to the individual.”
w w w. b a r r i s t e r m a g a z i n e . c o m
Fifteen barristers from Exchange Chambers named on Attorney General’s Regional Panel Fifteen barristers from Exchange Chambers have been named on the Attorney General’s Regional Panel. The Attorney General’s panel of counsel consists of junior counsel who undertake civil and EU work for all government departments. It is administered by the Government Legal Department (GLD). Louis Browne QC from Exchange Chambers is also on the GLD’s list of Queen’s Counsel who have previously been instructed by departments or have expressed interest in receiving instructions. Being on the list draws attention to a QC’s willingness to do government work. Said Tom Handley, Chief Executive at Exchange Chambers:
“Members of Chambers have a longstanding history acting for
government departments and we are proud to see so many of our barristers appointed to the Attorney General’s Panel this time around.”
The full breakdown of barristers from Exchange Chambers named on the latest Attorney General’s Regional Panel is as follows:
Commercial and Employment Panel A Paul Burns Giles Maynard-Connor Scott Redpath Carl Sandbach Ashley Serr Joshua Shields Richard Tetlow Andrew Vinson
Victor Nealon and Sam Hallam were both imprisoned for crimes that they did not commit. After spending significant amounts of time in prison, they were released when new evidence demonstrated that their convictions were unsafe. However, neither of them have received compensation. This is because the statutory compensation regime found in s. 133 Criminal Justice Act 1998 requires an applicant to have had their conviction quashed through a new or newly discovered fact that shows ‘beyond reasonable’ doubt that they did not commit the crime. This is an incredibly high threshold, which in practice means only those with DNA or concrete alibi evidence can pass. This means that despite there being clear evidence that they did not commit the crime, no compensation will be
Panel A Paul Burns Catherine Knowles Andrew Ward Panel B Alfred Weiss Panel C Stuart McCracken
Panel B Brynmor Adams Alfred Weiss
JUSTICE to Intervene in Supreme Court Case On the 8th of May 2108 JUSTICE announced that it will be intervening in the Supreme Court case, R (on the application of Nealon & Hallam) v Secretary of State for Justice. We will be providing evidence of the inadequacy of the current statutory compensation regime, arguing that the current regime has reduced the redress for wrongful conviction to virtually nothing.
Simon Lewis John Waiting
forthcoming. Such a narrow test has contributed to there being only six successful compensation applications in the last six years. Much of the focus on miscarriages of justice is on routing them out, making sure that innocent people our freed and that it doesn’t happen again. However, the aftermath of a miscarriage of justice can be incredibly difficult for an exoneree, during which they receive very little support. In April 2018, JUSTICE launched its report Supporting Exonerees: Ensuring Accessible, Consistent and Continuing Support at White & Case LLP in London. The report highlights the inadequacy of the support that is offered to exonerees prior to and after release. No state body is responsible for their welfare when they are released and what support is available is ineffectual. This report demonstrates how the criminal justice system fails to understand the issues facing exonerees: including practical assistance needed upon release, the negative impact of incarceration on mental health and the
difficulties readjusting to everyday life. Exonerees do not receive the services and support needed to acclimatise and return to normal life upon release from prison. We note that some support services are available, but these are poorly-resourced, often do not address the complex range of problems faced by exonerees, and are largely available on an ad hoc basis. We recommend ambitious development of existing services that would provide accessible, consistent and continuing support for exonerees. We also set out that measures for exonerees should go further than financial and non-financial support and include a public acknowledgement that a wrong has happened. We make 14 recommendations for reform, including: • • • • • •
Better management of the transition from incarceration to release. The need for specialist psychiatric care. The setting up of a residential service to provide practical and welfare support to exonerees. An independent body to determine whether applicants are eligible for compensation. Automatic compensation for wrongful imprisonment, subject to certain exceptions. An apology and explanation of the failure that leads to a quashed conviction and, where necessary, a public inquiry. The report can be obtained on the JUSTICE website
the barrister Trinity Term 2018
w w w. b a r r i s t e r m a g a z i n e . c o m
Law Society: Home Office not to be trusted with data protection exemptions
those Commonwealth citizens – and many others – who are lawfully living and working in the UK will be denied the right to know what information the Home Office holds about them, which could make the difference between success and failure in a legal challenge to their wrongful detention or removal.
Exempting the Home Office from new data protection rules could lead to serious miscarriages of justice, the Law Society of England and Wales and the Bar Council warned
of these principles. “Anyone seeking their own personal data from the Home Office could be denied access without justification and with no avenue to appeal.
“The Home Office has a notoriously bad track record for unlawful decisionmaking, which can have catastrophic consequences for people who are detained indefinitely in removal centres or wrongfully deported.
The Data Protection Bill currently before Parliament exempts the Home Office from personal data requests prompting Law Society president Joe Egan to warn the Bill will undermine the ability of British and EU citizens, as well as other non-UK nationals, to challenge unlawful deportation or detention.
“With serious flaws in the immigration system being exposed on a daily basis, there is deep concern about the potential for miscarriages of justice if the proposed exemptions were to be included in the final Bill.”
“Giving the Home Office the right to decide not to share the data it holds about those it is trying to deport or detain will be to give it more power than it has shown it is competent to use. The legal profession’s concerns about the Bill were first raised many months ago, and we would urge the government to listen to them, even at this late stage.”
“Recent events have shown how important it is to be able to scrutinise Home Office decision making,” he said.
“The GDPR and Data Protection Bill are based on accountability and transparency and the proposed exemption completely flies in the face
Chair of the Bar Andrew Walker QC said: “It seems that the government is determined to press ahead with changes in the law that could make it even more difficult for people, including those of the Windrush generation, to demonstrate that they have the right to live in the UK.
“If the new law is brought into force in the form the government wants, then
Lords fear rights of individuals and businesses will be threatened unless an effective system for dispute resolutions is found post-BREXIT Proliferation of quasi-courts to replace Court of Justice of the European Union (CJEU) The House of Lords EU Justice SubCommittee has published its report Dispute resolution and enforcement after Brexit. The Committee calls on the Government to propose an effective system for dispute resolution and enforcement in respect of both the proposed withdrawal agreement and the future UK-EU relationship. Without judicial oversight any “intractable” disagreements with the EU will be “potentially insoluble”, and individuals and businesses would also be unable to protect and enforce their rights. Chair of the EU Justice Sub-Committee, Baroness Kennedy of The Shaws, said:
“The Government claimed that continuing the jurisdiction of the Court of Justice was a ‘red line’. But it is increasingly clear that operating without cross border courts is impossible if we want to trade, have secure borders, cooperate on crime and enforce agreements with the EU as a future partner. It now seems we will have to have a whole set of courts and quasicourts rather than just one.
“In fact, even the Government now accepts that there may have to be some give and take: if the UK wants to stay in key EU agencies, such as on medicines or aviation, it will have to “respect the remit” of the CJEU. “We are really worried now about the lack of time. This is difficult stuff, and unless both sides show real flexibility in the coming months, not only could the rights of businesses and individuals be threatened, but the whole Brexit withdrawal agreement could end up being potentially unenforceable. “What’s absolutely vital is that after Brexit we continue to give ordinary citizens access to justice. For example, if you’re a parent living in the UK, and you want to enforce the payment of maintenance by an ex-partner living in the EU, you want access to quick, effective justice.” The Government has made clear its wish that when the United Kingdom leaves the European Union, the “direct jurisdiction” in the UK of the Court of Justice of the European Union (CJEU) will end. The Committee has looked
06 the barrister Trinity Term 2018
The Law Society and Bar Council are calling on all parties to remove the immigration control exemption from the Data Protection Bill and leave the Home Office subject to the same rules as everybody else at: the enforcement of any withdrawal agreement concluded under Article 50; oversight of the proposed transition period; and enforcement of any agreement that is reached on the future relationship between the EU and the UK. The EU insists that the CJEU should oversee the withdrawal agreement, but the Committee expresses concern and says that oversight should not be left to a Court “associated with one of the parties”. The UK Government, in contrast, has proposed only a political mechanism, but the Committee is concerned any “intractable disputes” would be “potentially insoluble” under the Government’s proposals. The Committee calls on both sides to bring forward “pragmatic proposals” to resolve the impasse. During transition, the Government has accepted that continued jurisdiction for the CJEU is inevitable. The Committee argues that it should be “only for a reasonable, time-limited period”, and that there should be a “longstop” for any claims arising during transition. In the longer term, the Committee says that “there will be no one-size-fits-all mechanism” for enforcement. The future relationship will be closer in some areas than others—and where it is particularly close, for instance if the UK wants to stay part of EU agencies or remain part of the European Arrest Warrant, then it will have no option but to “respect the remit” of the CJEU. There is also work to be done on justice cooperation in civil, family and criminal law and the Committee says that it has “grave concerns” about these issues.
To request a copy of the report, please contact the Lords Press Office on 0207 219 8550, or atlordspressoffice@ parliament.uk
Liberty Human Rights wins first battle in landmark challenge to mass surveillance powers in the Investigatory Powers Act In a landmark victory for privacy rights on the 27th of April 2018 the High Court has ruled part of the Government’s flagship surveillance law, the Investigatory Powers Act, is unlawful – following a legal challenge from human rights campaigning organisation Liberty. In this first stage of its comprehensive challenge to the law, Liberty focused on government powers to order private companies to store everybody’s communications data, including internet history, so that state agencies can access it. Liberty argued that retaining every person’s data in this way without limits and safeguards violates the UK public’s right to privacy. In the ruling, Lord Justice Singh and Mr Justice Holgate found that these intrusive powers are unlawful. The Court ruled this part of the Act is incompatible with people’s fundamental rights because ministers can issue data retention orders without independent review and authorisation – and for reasons which have nothing to do with investigating serious crime (par. 89). The judgment means the Government will now have to amend this part of the Investigatory Powers Act so that it no longer breaches people’s rights. The Court has given ministers until Thursday 1 November 2018 to do so (par. 183). Martha Spurrier, Director of Liberty, said: “Police and security agencies need tools to tackle serious crime in the digital age – but creating the most intrusive surveillance regime of any democracy in the world is unlawful, unnecessary and ineffective. “Spying on everyone’s internet histories and email, text and phone records with no suspicion of serious criminal activity and no basic protections for our rights undermines everything that’s central to our democracy and freedom – our privacy, free press, free speech, protest rights, protections for journalists’ sources and whistleblowers, and legal and patient confidentiality. It also puts our most sensitive personal information at huge risk from criminal hackers and foreign spies. “The Court has done what the Government failed to do and protected these vital values – but today’s ruling
focuses on just one part of a law that is rotten to the core. It still lets the state hack our computers, tablets and phones, hoover up information about who we speak to, where we go, and what we look at online, and collect profiles of individual people even without any suspicion of criminality. Liberty’s challenge to these powers will continue.” The case was funded by donations from members of the public. Liberty is launching the second phase of crowdfunding to ensure it can continue with the next stage of the legal challenge. About the case This part of Liberty’s challenge – and today’s ruling – focuses on powers in Part 4 of the Investigatory Powers Act. These allow the Government to force communications companies and service providers to store records of everybody’s location tracking information from our mobile phones, web browsing history and lists of who we call, text or email, when and how often. This information, which communications providers might not otherwise collect or keep, paints an intimate picture of a person’s movements, contacts, habits and views. Using other powers in the Act, dozens of public bodies – from local police to financial regulators – can then access this information with no independent authorisation and for reasons that have nothing to do with investigating terrorism or serious crime. Liberty asked the Court to find these parts of the Act unlawful because, among other things, they let the Government compel retention of this data: • • •
With no independent authorisation by a court or independent agency For crime-fighting purposes extending far beyond “serious crime” For a wide range of other noncrime purposes, including collecting taxes and fines owed and regulating financial services.
court or independent administrative body and – in the context of crimefighting – to only allow access to data for purposes of combatting “serious crime.” The Court did not rule on the legitimacy of the wide range of other non-crime purposes in the Act because the Government has already proposed legislation to remove them. Prior to today’s ruling, the Government had conceded Part 4 of the Investigatory Powers Act has several of the same flaws – but argued it should nonetheless be permitted to continue to apply it until April 2019. The High Court rejected this argument. About the Investigatory Powers Act The Investigatory Powers Act became law in late 2016. It was intended to introduce transparency to state surveillance following Edward Snowden’s revelations of unlawful mass monitoring of the public’s communications. Instead it simply legalised the practices he exposed – and introduced hugely intrusive new powers. It passed in 2016 as Parliament reeled from the EU referendum – despite the Government failing to provide any evidence that the extreme indiscriminate powers it introduced were lawful or necessary to prevent or detect crime. A public petition calling for its repeal attracted more than 200,000 signatures, but was not debated by Parliament. The Investigatory Powers Act also allows the state to hack computers, phones and tablets on an industrial scale, and collect the content of people’s digital communications and records about those communications created by our devices. It also allows the creation and linking of huge ‘bulk personal datasets’. Liberty has also issued legal challenges to three other parts of the Act containing these powers. Liberty instructed Shamik Dutta at Bhatt Murphy Solicitors, Martin Chamberlain QC, Ben Jaffey QC and David Heaton in this case.
The Government must now change the law to require prior review by a
the barrister Trinity Term 2018
exclusive, and bullying can p.1 certainly take place without a judge being a tyrant in his or her own court (though that will self-evidently satisfy any test). Bullying is not a simple expression of judicial irritation or frustration. It is not a fair and measured criticism of the conduct or work of counsel, or of someone else that is directed towards counsel. While all incidents must be judged in context, bullying involves behaviour such as personal abuse, sarcasm, contemptuousness, unreasonable demands, relentless criticism, intemperate language, demeaning behaviour, and comments which are designed to embarrass or humiliate. It may also include questioning counsel’s competence or professionalism, or asking counsel to justify him/herself, in circumstances that are unfair. The challenges of judicial bullying From my perspective, the position is clear. Bullying is unacceptable. It has no place in the legal profession or in our courts. It must not be tolerated, and must be addressed if it happens. I recognise, though, that there are particular challenges in dealing with bullying by judges. In the first place, the impact may be particularly acute, and victims may feel unable, or particularly reluctant, to do anything about it. Judicial bullying can have a significant effect on our confidence, and on whether we are able to carry out our own role effectively and to the best of our abilities. Judges are in a special position of power and influence over those who appear before them. Their behaviour takes place in public, or in a context which is known to our instructing solicitors and clients, on whose instructions our careers depend. We are not able to avoid judges who bully; they are in control of the circumstances in which it happens; and bullying may be repeated throughout many days in a single hearing, or on many occasions. Judges are also seen as having potential influence on our future careers, and on our reputation among other judges. Secondly, judges have an important constitutional status and role. They are not part of our profession, and it is essential that they remain independent. There are also wider implications. If an advocate is unable to perform effectively as a result of bullying, then the result may be an unfair process and even an unjust result. An appeal on such grounds may be far from easy, and should never be needed. Taken together, those issues inevitably create difficulties and complications that do not apply to bullying in other contexts. The pressures on judges Our judges are, I suspect, under considerably more stress now than those I recall from 20 or even 10 years ago. The conditions in which
they work, the nature of the work, the pressure of court business and timetables, the lack of support, and reducing numbers of court staff, have all combined to make it an ever tougher role. It is inevitable that some judges will succumb to excessive stress. Judges are also not immune from the same human failings as the rest of us. That is no excuse for bullying, or for any tolerance of it, but I would hope that any approach to dealing with it will take due account of the cause. There will be times when a sympathetic approach to stress, an underlying mental health issue or a personal crisis is the humane, right, and most effective course of action. The Bar’s response Bar Council advice is to be civil but firm with any bullying judge, opponent or clerk, to seek advice about it, and to report it; but that is at a high level, and more is needed. Whatever else we may seek to do, we must encourage a culture of awareness and openness, very much as we have been trying to do with wellbeing at the Bar. We need to do so in at least two ways. First, I hope that with this issue now in the open, barristers at all levels will realise that they are not alone in their experiences, and should not have to ‘tough it out’ against bullying. We need to be able to discuss this without fear of being seen as weak or incompetent. Bullying can and does happen to the strongest and best of us. We must continue to talk about it, and to be proactive in raising our concerns with colleagues. Second, we must be encouraged to raise incidents of judicial bullying with leaders in the profession, whether in chambers or in other organisations in which we work or, if appropriate, at higher levels still: Circuit Leaders, Chairs of Specialist Bar Associations, or even the Chair of the Bar. Our leaders must set an example, and must ensure that judicial bullying can be brought to their attention and addressed. Leaders do not need to be the first port of call – most victims are likely to prefer to speak first to a trusted confidante – but I would ask everyone to take all incidents of bullying to someone in a leadership position. We owe this to ourselves, our colleagues, and those who come after us. To have the confidence to do this, we must also have an understanding of what to expect. This must at least include a confidential discussion, a sympathetic ear, and an opportunity to explain what we have experienced, and to be reassured in our own judgment that what we are drawing attention to is bullying. We should also expect advice on how to deal with it, particularly if it is being repeated or is happening in the course of an ongoing trial, and the identification of a way forward to address it. The Bar Council is reviewing its own guidance with judicial bullying in mind, which I hope will assist, and our helplines can
08 the barrister Trinity Term 2018
provide further advice both to victims and to those seeking to support them. The most formal route to deal with bullying will remain a complaint to the Judicial Conduct Investigations Office. I shall shortly be discussing with them whether their processes can be made more accessible. I am conscious, though, that barristers are likely still to be wary about damage to their careers or reputations, and I recognise that even with support and encouragement, not all of those who suffer bullying will be willing to make a formal complaint. For them, we need an informal route. Informality may also be more suitable for those cases which call for a more cautious initial response. It may pose challenges for ensuring both fairness and confidentiality, and it will not always lead to an effective resolution, but that should not deter us. Bar leaders have channels available to them through which this type of issue can be raised. Judges in leadership roles can be expected to respond appropriately, and will be well placed to identify repeat concerns about individual judges. With careful handling, this can work. There may also be circumstances in which a well-timed intervention can nip a developing problem in the bud. We should not ignore the potential for intervention at the time by all (or other) counsel present in court (who we should expect to stand up with us against bullying), or by a senior practitioner unconnected with the case. I would also encourage chambers and other organisations to include advice on bullying by judges in the mentoring and support that they offer to more junior members, and not to be too shy about making confidential inquiries of other barristers and chambers if a local judge is behaving out of line. On the other side of the bench, we should encourage measures to address judicial wellbeing, and seek assurances that bullying will be deal with explicitly in judicial training. I hope that this will be treated as a priority by the senior judiciary. The potential impact on public respect for the judiciary and our judicial system is obvious. There may be other responses that we can consider too. The discussion about this no doubt will – and should – continue. Our judicial system depends on the maintenance of appropriate mutual respect, courtesy and restraint between counsel and the judge, and on an appreciation of our respective roles and obligations and the pressures that they impose. We cannot afford to fall short on either side.
Andrew Walker QC, Chair of the Bar Wellbeing at the Bar’s resources on bullying can be found at: www. wellbeingatthebar.org.uk/problems/ bullying-barristers
we will consult on later this year p.1 before they come into force in early 2019. We are considering the other issues raised in our recent FBT consultation – pupillage and the Authorisation Framework for new training courses – during our April and May meetings. At the end of March, we also published our Business Plan for 2018-19, which outlines our main priorities for the year. As well as continuing to implement the reforms to training for the Bar, which I have already mentioned, our focus for the year will include: •
consulting on the necessary rule changes to foster increased transparency about barristers’ services. This is in line with the CMA recommendations; subject to consultation, continuing to modernise our regulation by establishing a new Independent Decision-Making Body for disciplinary and authorisation decisions; and adopting a new approach to how we assess incoming regulatory information.
In April, we published a new guide for barristers who work with vulnerable immigration clients. This resource will help immigration barristers to identify, assess and manage vulnerability as well as help to meet their regulatory and other legal duties. It has been developed in response to the BSB’s 2016 Thematic Review, which found that barristers sometimes face difficulties managing client vulnerability. The review showed that consumers of immigration advice are a particularly vulnerable group and that barristers and other legal professionals would benefit from this type of nonmandatory guidance. We hope that this resource will help barristers to adopt good practice when working with vulnerable immigration clients.
the BSB’s Professional Conduct Committee (PCC). The Consultation closes on the 31 May and we welcome all views on this. In addition to this consultation, we are also seeking views as to whether to remove certain restrictions on the reporting by the profession of sexual orientation and religion and belief data. The current rule in the BSB Handbook states that every member of a chambers or a BSB regulated entity’s workforce must give their consent before aggregated and anonymised data on sexual orientation and religion and belief can be published. This consultation closes on 5 July 2018 and both can be found on the BSB website. Tessa Blackstone
Finally, I would like to bring two of our open consultations to your attention. The first seeks views on modernising our regulatory decision-making in relation to professional conduct issues. We are proposing to establish a new independent Decision-Making Body (IDB) consisting of a pool of 30 lay and barrister members from which panels of three or more will be nominated to take individual regulatory decisions. Under the plan, the IDB would replace
the barrister Trinity Term 2018
“One of the most vigorous right-wingers in the commons” …. Now defending our military interest on the select committee An interview with Rt Hon Dr Julian Lewis MP, Chairman of the Defence Select Committee By Phillip Taylor MBE, Richmond Green Chambers, Reviews editor of “The Barrister” Readers of “The Barrister” may wonder why Dr Julian Lewis is the subject of an interview in a legal magazine. The answer can be found in two parts. First, Lewis is an intriguing politician from an academic background with no military or legal service as such. It was a delight to interview him because you know exactly what you are going to get when the answers to the questions come out- very detailed and highly intelligent responses across the political spectrum … but from someone without the incumbrances of service life or legal life. Second, the work of the Commons Defence Select Committee, which he has chaired since 2015 covers a multitude of inquiries of a legal nature which, I suggest, will be of great interest to lawyers. I asked him specifically about the use of Larium for military personnel and what had happened to his report. It was the reason for my interest in his activities because of the contemplation of legal proceedings in many cases involving the use of the drug Larium and the financial costs if liability could be established. The MoD, like other big departments has a massive budget set aside in case they are sued! THE COMMONS DEFENCE SELECT COMMITTEE The Commons Select Committees are a most useful scrutiny tool for our parliamentarians since they were first established in 1979. Previous issues of “The Barrister” have examined the work of other select committees including the Justice and Foreign Affairs Committees so Defence needed to follow. Defence, of course, will always raise an interest with both the general public and the lawyer because of its work, its intrigue and its budget. As a retired MoD civil servant, myself, and an ex-soldier now lawyer and putting classified matters aside, there is always something of mystery about the MoD to lawyers and our readership. Many older members of Counsel will see direct parallels between our work and procedures, the way the judiciary operates, and the way we were trained (generally in the past) because there are great similarities with the military. At least that was the position until recently now the shrinking numbers of soldiers means many have no knowledge of service life and that is certainly the case in Parliament. A quick look at the recent membership of the Defence Select Committee illustrates that it remains a resting port for many ex-service persons as their numbers in the Commons dwindle (like barristers).
SO, WHO IS JULIAN LEWIS? Julian is not ex-military or legal, he’s an academic. He has been an MP since 1997 representing leafy New Forest East in Hampshire (majority 21,995 on 1st May 2017). And he’s proud of his right-wing credentials as a supporter of the Eurosceptic group “Leave Means Leave”, plus others. He is a Swansea man educated at Balliol and then St Anthony’s College, Oxford where he was awarded his DPhil in Strategic Studies in 1981. He is also a numerous book and article writer and you can view the impressive list on his website which he referred me to regularly throughout our meeting when I wanted an answer or a quote. Very cerebral. I first came in contact with Julian during the formidable CND years of the Cold War 1980s when he was a leading opponent of their activities at Oxford and elsewhere. I was one of the few elected Tories in the Oxford area then facing up to CND in both the politics and the business of the time. Throughout his political life, Julian has maintained a very detail knowledge and substantial interest in all things “defence”. His interests have included the main intelligence issue of subversion (I am not including sabotage or espionage here) having highlighted Militant Tendency entryism into the Labour Party (long before the birth of Momentum) in Reg Prentice’s seat of Newham North East. And he has been a member of the Intelligence and Security Committee of Parliament. So, Julian comes to the Defence portfolio with an interesting CV having been Research Director of the Coalition for Peace through Security from 1981-85. He then moved to become a Deputy Director of the Research Department at Conservative Central Office in the 1990s. This natural interest in defence issues led to his appointment as Shadow Defence Minister in the 2000s and as a Shadow Minister for the Cabinet Office although he has not held ministerial office. For reasons, see below. “FRONT BENCH TERRIER” As one of the “most vigorous rightwingers in the Commons”
10 the barrister Trinity Term 2018
Daily Telegraph bias), this “front bench terrier” (Guardian bias) has been given the honour of one of the Frontbenchers and Backbenchers of the Year (ConservativeHome- certainly a bit biased). But, as you see when you meet Julian, he does possess that special cross-party appeal which I have seen with all the select committee chairmen. And that is why he chairs Defence at present with a committee most effectively bringing Gavin Williamson and others to account! That is not to say, of course, that the select committees are a repository for the disaffected. Far from it, as the disaffected though vigorous remain (to use a word) in Soubry corner in the Commons. LARIAM One major point of our discussions was the use of the controversial antimalarial drug Lariam among service personnel. This was the “legal bit” which Julian has been involved with for some years taking up cases. Initially, he raised the use of the drug in some PQs and received the usual rubbish response from the government. After some rather lack-lustre media attention the matter arrived at the committee. The published report is entitled “An acceptable risk? The use of Lariam by military personnel” of 24th May 2016. The Government response was published on 13th September 2016. Since then, the issue has appeared occasionally in the press and on tv. It led to an interesting settlement when the MoD “quietly paid” a “significant sum” to a former member of the Royal Artillery, known as “gunners” for the uninitiated. We all know about settlements, especially in PI cases. This one was believed to be the first of its kind in the UK. And it was made weeks before “an expected court case”. Earlier in 2018 it became apparent that hundreds more former service personnel might sue the MoD costing the public a very large amount of money. For readers unfamiliar with Lariam, it is a drug which “has been linked to depression, hallucinations and panic attacks”. The allegation remains that those given the drug were not given any warnings or advice about it, raising the issue of a breach of a duty of care. The facts are enough to worry MoD lawyers with some 17,368 military personnel given the drug between 2008 and 2015. The symptoms followed a pattern which the PI/negligence lawyer would identify quickly with… suffering personality changes, irritability, broken
sleep patterns and seizures. In an interesting development in one settled case which we know about, the MoD (never admitting liability for anything) allegedly admitted breaching the duty of care it owed to the troops. However, it maintains that usual position that the breach “had not resulted in any injury or loss” to the claimant. No wonder they wanted to settle. In a modest way, Julian Lewis (I think) recognises that his committee has produced a most important report on Lariam and they have certainly earned themselves much support amongst the service community. I know that a number of claimants and their families certainly do! The defence put up by the MoD remains stolid. They continue the line which we hear from other government departments (very much civil service speak) that “respected health bodies” (unnamed and unidentified) continue to recommend the use of Lariam “as a safe and effective form of malaria prevention”. A sad statement, as it would appear not to be the case but I am not using any other words in reply.
MoD AND THE LAW It can be seen from the Lariam example that the MoD and the Law have a rather special relationship. The Defence Select Committee have launched a number of inquiries, most with a causal link to national and international law. They include “Global Islamic Terrorism” looking at how the UK counters global Islamist terrorism, and the “Armed Forces Covenant Annual Report” – this time covering 2017 although at the time of meeting I could not discuss the Covenant. Of more interest since the Lariam report, is the inquiry into the extent of mental health issues across both serving armed forces personnel and veterans. From recent statements made by committee member, Johnny Mercer MP, and others, the mental health issue is rising up the political agenda whilst the law itself remains in a state of perpetual confusion until we have a proper statute sometime after Brexit. JULIAN AND NEW TECHNOLOGY Contacting Julian has always been a bit of a problem for some as he does not like email and the press like to get at him regularly- the political commentators’ dream and you know who you are, Quentin!
To all his critics, remember Julian does use some email services, and he has made an extensive use of the web which I found most impressive and imaginative. If you ever want to know anything about him, it is there if you do your detailed research on julianlewis. net. And some ten years ago, Julian secured a victory changing the Freedom of Information Act over a High Court order that some home addresses of MPs be published. The change means that, in future, addresses in respect of any other Parliamentarians could not be published. Lewis is also rightly credited with the removal of a requirement for general election (not local election) candidates to have their home addresses disclosed on nomination and ballot papers. This came some years before the murder of Jo Cox MP and it highlights the changing attitude towards the offering of information to the public and the security of MPs as our representatives. Julian Lewis is, above all else, a Parliamentarian of the new generation notwithstanding his proud, right of centre credentials which have coloured his political career for some. I believe we are indebted to him and his committee for the work they do with an MoD that has a rather different view than some of about the department’s position regarding rule of law and legal matters. More power to him and his committee for the future as the shrinking soldiery continues.
The barrister magazine will not accept responsibility for information supplied by other parties, views expressed may not necessarily be that of the editor or publishers.
the barrister Trinity Term 2018
Don’t bury your head in the sand when it comes to Making Tax Digital compliance By Joanna Fergusson an assistant manager at accountancy firm, Menzies LLP.
From 1 April 2019, all businesses with a 12-month rolling turnover of £85,000 (the current VAT threshold) or more will be required to comply with HMRC’s Making Tax Digital (MTD) strategy when filing their VAT returns. With a significant proportion of UK barristers likely to fall within this threshold from the start, it is essential that they begin preparing for the changes now in order to avoid potential fines.
hilst this is likely to apply to a large number of UK barristers, those with a turnover below this threshold may also opt to voluntarily file their VAT returns through MTD. Additionally, the fact that the majority of barristers are selfemployed means that each individual will need to understand the HMRC’s changes and ensure compliance ahead of next year’s deadline. Our research indicates that most barristers will be using the existing HMRC portal for filing their own VAT returns. However, many may be unaware that from next May, this will no longer be sufficient. Instead, barristers will be required to use
‘functional compatible software’ to maintain digital business records and file relevant VAT information electronically. VAT returns submitted under MTD require barristers to submit details of the digital records in addition to the information currently included on VAT. It is expected that this improved access to data will allow HMRC to process VAT returns and deal with other queries faster and more efficiently. In recognition of the fundamental changes that MTD will require businesses to make to their accounting practices, HMRC is likely to adopt a more lenient approach to MTD compliance in its first few months.
12 the barrister Trinity Term 2018
However, it is important for barristers to be aware that they still only have a narrow window for compliance. By starting their preparations now, barristers can ensure that suitable software and processes are well established and any issues addressed well ahead of the April 2019 deadline. Barristers within the scope of MTD will need to be compliant for VAT return periods starting on or after 1st April 2019. For example, if the VAT period starts 1 June 2019, the VAT return for the period to 31 August will be the first return which must be MTD compliant. For barristers, other long-term benefits of the switch to a digital system are likely to include reduced compliance costs and the ability to make use of real-time information when conducting business and financial planning. For example, access to up-to-date figures about profit and loss could help these barristers to plan cash flows and to operate in a more tax efficient manner. For individuals currently falling outside of HMRC’s £85,000 turnover
threshold, it may be tempting to simply assume that MTD does not apply to them. However, for barristers approaching the threshold, adopting this approach could result in them being ‘caught out’ if income continues to increase. This is especially relevant as HMRC is expected to lower its turnover threshold in the years to come. Instead, it is vital to keep a careful eye on revenue whilst gaining an understanding of MTD and the changes needed to ensure compliance. Where fee clerks are responsible for dealing with a barrister’s tax affairs, it is also important to check they are fully informed about the implications of the new changes and implement adequate systems and processes in good time. There is no doubt that the new rules to be introduced by MTD will require barristers to make significant changes to the way they submit VAT returns and it may be tempting to simply delay these until closer to the April 2019 deadline. However, by taking steps now to learn how to switch to a digital system, barristers can iron out any compliance issues in plenty of time.
with selected businesses and software providers. Learnings from these trials should provide barristers with increased clarity around what ‘functional compatible software’ will look like and the options that should be available in the months to come. Get your timings right A key consideration for barristers when moving to an online accounting package should be the timing of the process. As it is often most efficient to make the transition at the end of an accounting period, it is important to begin preparing for a switch to digital accounting well ahead of the year end. Seek expert advice
Top tips for Making Tax Digital compliance:
Speaking to a third-party advisor or software provider before the April 2019 deadline can help to provide barristers with peace of mind, ensuring that online accounting packages are sufficient for MTD compliance. Advisors will also be able to provide valuable updates about any important MTD developments as the deadline draws closer whilst providing access to software and VAT expertise.
Establish ‘functional compatible software’
Take advantage of efficiency benefits
With only a narrow window to ensure MTD compliance, barristers should waste no time in checking that they are using an online accounting package deemed ‘functional compatible software’ for MTD purposes. Where multiple software packages such as Xero or spreadsheets are used to record VAT data, these must be joined by a ‘digital link’.
For barristers falling outside of HMRC’s turnover threshold, a switch to MTD can help to boost efficiency when filing VAT returns, reduce compliance costs and provide valuable access to real-time financial data. Making sure they are up to speed on the new system at the earliest opportunity will allow individuals to begin reaping the rewards of digital accounting now.
HMRC is currently in the process of testing its MTD portal
the barrister Trinity Term 2018
An overview of vulnerable witnesses in family law cases By Ali Alrazak, law lecturer
process that includes witnesses such as those suffering from mental health issues as well as intimidated witnesses. To an even greater extreme, vulnerable witnesses are increasingly being cross-examined by their alleged abusers in domestic abuse situations. This has caused a great deal of concern amongst lawyers, with Sir James Munby; President of the Family Division stating that this type of cross examination was lending itself to the continuation of the abuse. Vulnerable witnesses are also having to deal with the recurring issue of a lack of statutory authority that would secure their entitlement to special measures. Until recently, there was also the need for the Family Procedure Rules (FPR) to address the identification of vulnerable witnesses and the need for regular ground rules hearings, but these has largely been addressed by the newly implemented FPR Part 3A and Practice Direction (PD)3AA. The situation in criminal law In criminal proceedings there is statutory authority regarding the identification of vulnerable witnesses and the ability to have special measures secured. The Criminal Procedure Rules (CPR) provide a procedural basis for how vulnerable witnesses should be dealt with in court. As a result, both the primary legislation and relevant CPR addressed below are consistently recommended as models for family procedure reform and it is therefore important to consider them here. The categories of a vulnerable witness in criminal law are found in the Youth Justice and Criminal Evidence Act 1999 (YJCE 1999) s16;
(1)For the purposes of this Chapter a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this section— (a)if under the age of 17 at the time of the hearing; or (b)if the court considers that the quality of evidence given by the witness is likely to be diminished by reason of any circumstances falling within subsection (2). (2)The circumstances falling within this subsection are— (a)that the witness— (i)suffers from mental disorder within the meaning of the Mental Health Act 1983, or (ii)otherwise has a significant impairment of intelligence and social functioning; (b)that the witness has a physical disability or is suffering from a physical disorder Intimidated witnesses are also considered vulnerable witnesses and are entitled to special measures. By virtue of s17(1)of YJCEA, these are witnesses whose evidence is likely to be diminished by fear or distress. S17(4) states that a complainant of a sexual offence is to automatically be considered a vulnerable witness and is therefore entitled to special measures. S23-30 provides a list of special measures that can be used to assist an identified vulnerable witness such as;
he issue of how vulnerable witnesses are examined in court is by no means a new issue, but it is one that has regularly been hit by the spotlight in recent years. This is due to a variety of factors but perhaps one of the biggest is the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012). As a result of legal aid being cut from the majority of private family law cases, we have had the highest number of litigants in person to date. The latest Family Court quarterly statistics published in 29 March 2018 have shown that in 37% of cases neither party had representation. The relevance to vulnerable witnesses is that these witnesses are being continually cross-examined by litigants in person. This involves untrained individuals taking part in a court
14 the barrister Trinity Term 2018
• • • • • • • •
Screening the witness from the accused. Evidence by live link. Evidence given in private. Removal of wigs and gowns. Video recorded evidence in chief. Video recorded cross-examination or re-examination. Examination of the witness through an intermediary. Aids to communication.
The primary legislation is then supported by the CPR. The CPR does not only address how vulnerable witnesses should be identified and dealt with, but it also recommends useful sources for members of the court to use when dealing with a vulnerable witness. Rule 3.2(2) makes it a mandatory requirement on the court to identify the needs of a witness, which would then lead to the proper identification of a vulnerable witness. PD3D deals with vulnerable witnesses.
It outlines the definitions within YJCE 1999 and emphasises the need for a vulnerable witness to be identified at the earliest stage. PD3D.5 recommends the use of toolkits; useful guides on how to conduct advocacy, with a variety of toolkits available that are specific to vulnerable witnesses. These toolkits have been supported by both the Advocacy Training Council and the common law in R v Wills  EWCA 1938. These toolkits have also been relied on in family proceedings. PD3.6 acknowledges that these toolkits are available through the Advocate’s Gateway and PD3.7 encourages advocates to refer to these toolkits as best practice. What can be observed is not only the need to properly identify vulnerable witnesses, but for members of the court to get into the mentality of consulting available guidance when dealing with such witnesses. Finally, and perhaps the strongest factor that encourages consistency in the treatment of vulnerable witnesses, procedure wise, is the formal requirement for a ground rules hearing. These are sessions where judges can make directions which addresses how a vulnerable witness is to participate in trial. PD3E provides guidance on the content of a ground rules hearing. This can include the special measures needed and how advocates should tailor their advocacy. Under rule 3.9 (7)(b) the consistency is maintained by the mandatory requirement of holding a grounds rules hearing in circumstances where ‘directions for appropriate treatment and questioning are required’. PD3E.2 states a ground rules hearing is required in cases involving an intermediary. Under PD3E.3 it is considered good practice to hold a ground rules hearing with any witness that may have communication needs. The previous situation in family law As noted above the law and procedure regarding the treatment of vulnerable witnesses in criminal law is extensive and goes into far more depth than this article can hope to cover. Unfortunately, the same cannot be said for vulnerable witnesses in family law. In the 12th View from the President’s Chambers’ published in June 2014, Sir James Munby announced the setting up of the Children and Vulnerable Witnesses Working Group (CVWWG). This was to address a variety of matters, but relevant to this article, the CVWWG was to address and provide recommendations for vulnerable witnesses giving evidence in family proceedings. In the 12th View the family justice system was described as lagging ‘woefully behind the criminal justice system’ when it came to this issue. A similar view was expressed over 10 years ago by Roderic Wood J in H v L and R  EWHC 3099
where he expressed the need for statutory provisions similar to the YJCE 1999 to be implemented into family proceedings. An example being s34 YCJE 1999 that prevents a defendant from cross-examining the complainant of a sexual offence. Prior to the FPR 3A and PD3AA being implemented there was a lack of procedural authority as well as primary legislation regarding vulnerable witnesses in family procedure. There have been cases that offer some guidance such as Re A (A Child) (Vulnerable Witness)  EWHC 1694 which took into account psychiatric evidence to determine how X, a 21 year old woman, could give evidence given her allegations related to matters that occurred when she was a child. Despite case law providing some guidance, a lack of set statutory restrictions has led to cases such as Re B (A Child) (Private law fact finding – unrepresented father), D v K  EWHC 700. Here in a fact-finding hearing where an allegation of rape was relevant, whether the complainant could be cross-examined directly by their alleged perpetrator was an issue to be determined, whilst in criminal law this would have been prohibited. The CVWWG in its March 2015 report stated at paragraph 32 that its recommendations were ‘aimed at equipping judges to identify and handle vulnerable parties and witnesses and equipping advocates to handle and question such parties and witnesses’. As part of its recommendations the report suggested a new rule 3B that would provide a definition for vulnerable witnesses that mirrored that of the YJCE 1991. A new practice direction was recommended to address the need for ground rules hearings, with a recommendation that the CPR be a model for its drafting. Finally, the recommendations, once more mirroring criminal procedure, suggested the inclusion of the advocates gateway in the FPR. The current situation in family law Over two years after the CVWWG’s report, FPR Part 3A and PD3AA were implemented. These for the most part addressed the recommendations made in the CVWWG’s report regarding procedures relating to identifying vulnerable witnesses and hosting ground rules hearings. FPR rule 3A.3 states the court’s duty to consider the vulnerability of a witness, taking into account factors under rule 3A.7 which are similar to factors under s16 YJCE 1999. Rule 3A.8 outlines measures that may be used, though these are not as extensive as s23-30 YJCE 1999. Under FPR PD3AA,1.3;
“It is the duty of the court (under rules 1.1(2); 1.2 & 1.4 and Part 3A FPR) and of all parties to the proceedings (rule 1.3 FPR) to identify any party or witness who is a vulnerable person at
the earliest possible stage of any family proceedings.” PD3AA,2.1 outlines factors the courts must have regard to when considering the vulnerability of a witness. Examples being domestic abuse as defined under PD12J, sexual abuse, and physical and emotional abuse. PD3AA,5.1 addresses the requirement, not the recommendation, that when vulnerability is determined, a ground rules hearing will be held. PD3AA,5.5 and 5.6 address potential special measures with reference to the YJCE 1999. Finally, and once more following the CVWWG’s report, the expectation under PD 3AA, 5.7 for advocates to be familiar with the advocates gateway is present. Several recommendations have clearly been implemented in Part 3A and PD3AA. Though this is a positive step forward, it is nowhere near enough give the looming issue of a lack of statutory authority to provide funding for a number of special measures when legal aid has been denied. There is potential within the common law to acquire legal aid in these circumstances through an exceptional case determination under s10(3) LASPO 2012. In Re W (Children) (Abuse: Oral Evidence)  UKSC 12 Lady Hale stated the use of criminal ‘special measures by analogy’ in family proceedings. If the cross-examination of a vulnerable witness were to substantially diminish their evidence to the point it denies them a fair trial under Article 6 of the European Convention of Human Rights, then they may be entitled to an exceptional case determination (see R. (on the application of Gudanaviciene) v Director of Legal Aid Casework  EWCA Civ 1622). Despite this option existing, it is far more difficult and time consuming to address than a provision in primary legislation that would prevent a vulnerable witness from being crossexamined in the first place by their alleged perpetrator. There was an attempt to legislate such a provision through the Prison and Courts Bill which would have also included a requirement for a specially funded advocate to step in for the purposes of cross examination. Unfortunately, the Bill was dropped prior to the general election in June last year. We simply have to wait for primary legislation to step in and provide an authority for barring the cross examination of vulnerable witnesses in the circumstances above. Once this is done, FPR PD12J can be amended to follow suit. Currently we have the drafting of the Domestic Abuse Bill, but as its focus appears to be more on special measures and not the current lack of representation, it seems unlikely that we will see an increase in vulnerable witnesses being properly examined by qualified advocates.
the barrister Trinity Term 2018
Giving your paralegals recognition is good for business By Amanda Hamilton, NALP
aralegals are taking the legal services sector by storm; they are filling the gap left by increasingly inaccessible solicitors’ costs and the virtual eradication of legal aid. They are also fulfilling some of the objectives of the Legal Services Act by improving access to justice and promoting competition in the provision of legal services.
will not progress and ultimately, have realized that it is a more viable option to retain their paralegal status and move forward with that.
This ‘sudden’ abundance of paralegals in the legal services sector is not an overnight phenomenon.
Now, the term ‘paralegal’ is a buzzword – with increased recognition of the term both within the legal sector an amongst consumers. However, it is important to note that not all paralegals are would-be solicitors or barristers. Many are, but the majority are not.
Over the last decade there has been a dramatic increase in the number of postgraduate professional qualification courses offered by various universities and colleges - which were originally encouraged by the Law Society and Bar Council (before the Legal Services Act created the SRA and BSB). Thirty-five years ago when this author graduated, there were just four colleges running the SFE (Solicitors’ Final Examination – the forerunner to the LPC). In 2000, there were 28 colleges and in 2010 there were 42 colleges running the LPC. Similarly, the number of colleges offering the BVC (latterly the BPTC) has increased. These courses have been offered at considerable expense to students who are often unable to find training contracts or pupillages. Statistics indicate that there are approximately 462 – 502 advertised pupillages available with around 750-1200 BPTC graduates each year chasing those places. Year on year this accumulates. Similarly, there are approximately 9,000 LPC graduates chasing around 5,500 training contracts each year. As years go by, the competition gets greater and greater. I can personally testify that one student who attained his BPTC six years ago is still looking to find a pupillage after consistently making his applications twice a year since then. He is currently working for one of the top 12 law firms as a Paralegal contractor! And he is not unique – there are many graduates just like him now building successful careers as paralegals. Many graduates have turned to paralegal work in order to keep their hopes alive of entering the traditional legal professions. In practice, most
Paralegals are defined as ‘persons who are trained and educated to perform certain legal tasks, but who are not qualified solicitors, barristers or chartered legal executives’.
So where are paralegals working, if not just with solicitors? Well, you can locate a paralegal in barristers’ chambers and in-house legal departments of most companies and local authorities. They also work in the CPS, NHS, charities, public and private sectors and, not least for themselves as practitioners in their own right. Many barristers’ chambers are turning to paralegals for general assistance. We’re not just talking about ‘barristers’ clerks’ here, but people who have been trained and have qualifications in law or who have gained a paralegal diploma. Why? There are several reasons: firstly: the nature of working as a barrister in chambers has changed, due, in part, to the change in rules allowing barristers to be publicly accessible by the consumer. Secondly, since January 2014, the Bar Rules changed again to allow selfemployed, public access barristers to extend their practising certificates allowing them to conduct litigation. This means that provided the barrister has the correct authorization, litigants no longer have to rely on themselves, nor do they have to employ a solicitor to take the matter further should the case go to court. They can utilize the services of a barrister from initial advice to court appearance (if required). Barristers who have taken up this opportunity are relying more and more on either employing paralegals to assist them with the litigation process, or
16 the barrister Trinity Term 2018
alternatively contracting such matters to a Paralegal firm on behalf of their clients. This is not the only way paralegals may be helping you to run chambers. If there is an element of legality involved in running chambers: for example, if you have a secretary or administrator who is triaging phone calls to decide whether a member of chambers should handle a client’s query, or, if you have a human resource person drafting employment contracts or contracts to provide services of any kind, and these individuals are not qualified solicitors or barristers, then they are paralegals! Formally recognizing that these individuals are indeed ‘Paralegals’ within chambers can encourage loyalty and status. In addition, if you are prepared to offer your paralegal personnel formal recognition by encouraging them to join a professional body such as NALP (National Association of Licensed Paralegals) and/or give them the opportunity to gain paralegal qualifications (if they do not have any already) through NALP Training, this will add credibility to your chambers. It will also give the right impression to potential clients. The Legal Services Act 2007, sought to liberalise and encourage competition in the market for legal services in England and Wales. This statute, together with the withdrawal of Legal Aid (for all but the most urgent cases) means that there is no longer funding to assist consumers financially in bringing an action or defending an action through the courts. This has, in turn, encouraged more and more people to train and qualify as paralegals in order to plug the gap that remains. A paralegal professional is not statutorily regulated in the same way as other legal professions, like barristers or solicitors, and therefore is able to charge a fraction of the cost that a solicitor may charge. However, this does not mean that they are any less knowledgeable, diligent or professional than Solicitors.
Paralegals are trained in the same way as solicitors are. They study the same areas of law and procedure and have the same level of experience. However, they cannot call themselves ‘solicitors’ or hold themselves out e.g. infer that they are solicitors, if they have not fulfilled the criteria laid down by the regulatory bodies, the SRA (Solicitors Regulation Authority) or BSB (Bar Standards Board). Paralegals are regulated by NALP which is a selfregulatory body. In other words, it can only regulate its own members. This is the reason why every paralegal should be encouraged to join NALP as a member. This will differentiate them from other paralegals by the letters after their name. Furthermore, many NALP paralegals are setting themselves up as independent practitioners. NALP can provide them with a Licence to Practise (subject to fulfilling eligibility criteria) and assist them in gaining PII (Professional Indemnity Insurance) to do so. Encouraging such paralegals to gain recognition and become independent practitioners can only increase the likelihood of work being referred to barristers. With the possibility of gaining Licensed Access from the Bar Standards Board, a Paralegal Practitioner can now work in a similar way to solicitors (apart from performing ‘reserved’ activities) in that they can set up their own ‘high street’ office, give advice and assistance, and now instruct Counsel. In the workplace, attracting and retaining top talent is always a challenge – but by offering formal recognition for your Paralegal staff, and perhaps allowing them days off for training, offering to pay for training, or releasing time during the working week for them to study, you can attract better applicants and retain your best people. If you also publicly celebrate their achievements with them – you will not only build loyalty with them, but with your other staff who can see the support that you offer those who wish to improve their skills. People like to be recognized and rewarded for the work
they do – this is one way to achieve that. On the flip-side, ignoring their status and the contribution of these valuable employees, may lead to a talent exodus as staff look for fulfilment elsewhere. For Paralegals already working within your chambers, there are bespoke nationally recognized qualifications to help them hone their skills and knowledge – building their confidence and increasing the services you offer to clients. Obviously, there are, as mentioned already, ‘reserved activities’ and these remain the monopoly of solicitors. For example: automatically having the right to represent someone in all courts, the conveyancing process (i.e. buying and selling property) and some probate activities (i.e. sorting out a person’s estate (assets) after they die). Apart from the above, there remains plenty of scope for a Paralegal within your chambers to perform valuable tasks, without the need to approach a solicitor. To find out more contact NALP (National Association of Licenced Paralegals) http://www.nationalparalegals.co.uk
ABOUT THE AUTHOR Amanda Hamilton is Chief Executive of NALP, a non-profit Membership Body as well as being the only Paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England & Wales). Through its training arm, NALP Training, accredited recognised professional paralegal qualifications are offered for a career as a paralegal professional. See: http://www.nationalparalegals.co.uk and http://www. nalptraining.co.uk/nalp_training Twitter: @NALP_UK Facebook: https://www.facebook.com/ NationalAssocationsofLicensedParalegals/ LinkedIn - https://www.linkedin.com/in/amanda-hamiltonllb-hons-840a6a16/
the barrister Trinity Term 2018
Forensic Video Analysis: When to Seek an Expert By David Spreadborough, Amped Software
Forensic video analysis (FVA) is defined as the scientific examination, comparison and/or evaluation of video in legal matters.1 A short description for a huge variety of tasks, encompassing all the components of the Video Forensic Process as detailed by the UK Forensic Science Regulator, (Digital Forensics - Video Analysis, FSR-C-119) 2:
Does anyone check that there is an unbroken chain between what was initially acquired from the video recording device and the item being presented in the courtroom? There appears to be a lot of assumption that it’s correct, with little regard to establishing its correctness.
a. field retrieval; b. laboratory retrieval; c. lossless extraction of data from proprietary formats; d. processing; e. interpretation; f. reporting.
The chain will often not be a simple one, as most video starts off inside a non-standard digital video recorder within a CCTV system. Therefore, there is a high possibility that some decisions will have been made in the acquisition process, and then also in the processing and presentation stages. If those decisions have resulted in changes, then it must be reproduceable and repeatable.
Anyone working with video evidence within the legal system, must use a science-based workflow to get the video, manage it, process it, understand it, and then report on it.
Most CCTV owners are not aware of these issues. As a result, they could be asked to export some footage and then produce a video that is much worse than what was originally recorded.
In my previous article, entitled “Video Evidence: Handle with Care” I wrote about the common mistakes of processing image and video evidence. The times when this process had not been followed but luckily identified. The purpose of this article is an attempt to ensure that mistakes like those don’t reach the courtroom again. I must start with Evidential Integrity.
“Is the evidence complete and unaltered since the time of acquisition?”
18 the barrister Trinity Term 2018
1 https://en.wikipedia.org/wiki/Forensic_video_analysis 2 https://www.gov.uk/government/publications/videoanalysis-codes-of-practice-for-forensic-service-providers Many officers in a first response role do not know the technicalities. They may even be given the wrong equipment to assist them in the export process. Both could end up with footage that was not complete and that had changed since the first recording.
Can we go back to the original? No. Because most CCTV systems will overwrite the data unless it is saved or exported correctly. What about during the processing stage, back at the police station? Many officers must resort to kiosks, or standalone hardware to process the footage for court. What are these doing to the footage, and is it repeatable?
Now comes the Processing stage.
Whatever is acquired, whether it is the native original evidence or not, it is imperative that a verification method is established as soon as practicable after the creation of the digital file. If not completed, there would be no method to verify that the file has not been altered during any subsequent location change or process.
Restoration is objective and will often consist of a scientific and documented algorithm to reverse errors in the image to restore a scene or object.
Next, we have Authenticity.
By understanding the video and interpreting the visual clues correctly, we can reverse the processes made to create it and produce new derivative evidence that answers the questions being asked of the original exhibit.
“Is it a true and accurate representation of that which it purports to be?” In my last article I wrote about a case where a vehicle was captured on CCTV and an image was extracted to indicate that this was a specific vehicle. Unfortunately, without the correct analysis of the video, an accurate representation could not be established, and the wrong conclusion was therefore presented as fact. This is the crux of the Authenticity issue – only the correct understanding, restoration, and enhancement can truly ensure that authenticity is preserved. If the question being asked of the video was a simple one, “is there a vehicle?”, then yes, it is authentic as a vehicle was there. However, when dealing with specifics, the nonstandard, unregulated start point of CCTV can bring up all sorts of challenges that only a competent person may identify. This all leads nicely onto the exhibit, and the processes required after retrieval to get it ready for court. Whatever is required, each stage must be recorded and documented to ensure the chain back to the original master exhibit can be followed and the processes are repeatable and reproducible. To put this into some context, let’s look at a scenario involving a vehicle at night. The first hurdle comes with the playback of the video file. Can we rely on the manufacturer’s player? Can we rely on open-source or standard freeware players? The answer is, as is often the case in the forensic world, not a simple one. Strangely, the biggest errors are usually found in a manufacturer’s playback tool. Missing images, distorted shape and size, and incorrect colours, are all common issues, and all challenging the correct interpretation. If the decisions made at the playback stage are wrong, the entire chain afterwards could be wrong, and so will be the decisions made of any subsequent images or video produced. In our scenario we could have the date and time being presented, along with the video footage in the manufacturer’s player. We could use this data, but not the video itself. We will have to deal with that differently as the analysis has identified that the player is not presenting the footage correctly and no options are available to control this. Using dedicated forensic video software, it is possible to extract the video data from the proprietary format and decode the video data correctly. We are now in a situation where we can control what is happening to the file and ensure any decisions are recorded.
Mistakes often occur here because of wrong decisions during the initial acquisition and, possibly, conversion. For us though, we need to break this down into two parts: Restoration and Enhancement.
Enhancement is subjective and will often require decisions to be made based on visual appearance of the scene or object.
Importantly here, we must not be swayed in our interpretation by artefacts in the video that can deceive us, or external information that causes an unconscious bias. Many of the problems I see stem from these points. Not understanding the video and then interpreting the information incorrectly. Let’s get back on track here and see where we are. We acquired the evidence correctly, ensuring we have preserved the native video. That has been exhibited and a verification method has been established to ensure that this volatile digital information was not changed. It was copied correctly, and the working copy was verified as a true copy of the original. It was decoded using dedicated forensic video software and each process was recorded and logged ensuring repeatability and reproducibility. Image and video segments have been produced that link directly back to the original frame, in the original video, and all changes to the data have been logged and recorded. It is these image and video segments that ultimately get presented in court. They may even go on to be included in a compilation, comparison chart or video timeline. By following a structured forensic workflow, and using software dedicated to the analysis and enhancement of videos and images, we can ensure that anything that gets shown is reliable and based on facts. Videos and images are some of the easiest evidence to get wrong. The cause, in my experience, is down to simple errors in initial interpretation and decision making with most, luckily, being detected before any harm can be done. The only way to ensure that what you show in court is reliable, repeatable and reproducible, is by ensuring that the data is dealt with as evidence. Have it reviewed long before you walk into that courtroom and ensure it’s been reviewed by an expert, not just someone who can press play.
David Spreadborough, Amped Software www ampedsoftware.com
the barrister Trinity Term 2018
Marketing materials aren't marketing By Douglas McPherson, Director, Size 10½ Boots and author of The Visible Lawyer and Package, Position, Profit
or many at The Bar there is still sometimes a bit of confusion over the difference between marketing and marketing materials.
Don’t get me wrong, we’ve come an awful long way over the last decade or so. It’s great that the majority of Chambers have recognised the need to present themselves in a more contemporary way with: • • •
A recognisable and consistent corporate identify More commercial and more professionally presented brochures Websites that inform and update as well as just list out members and their experience
However, all of these things are marketing materials, they’re not actually marketing. If these materials are going to achieve your desired objectives – to create awareness, interest, desire and, ultimately, action – they need to be physically taken to market and put in front of/in the hands of the only people who can generate fees, your clients and targets. And that’s what marketing is. Marketing is what you need to do to make sure your materials and your message gets to the right people. For simplicity’s sake just think of it as the line that joins what you have and what you do with the people who are most likely to require/want/need those services. So how can you make sure your messages and materials get into the right hands? Well clerking is of course the most obvious and the most traditional route and I’m sure your clerks do everything they can to make sure your current clients are well looked after. Similarly I imagine they are taking every opportunity to spend time with your instructing solicitors to make sure they know all about you, the other barristers in Chambers and your collective expertise and individual specialisms. Wherever possible they’ll also be brokering opportunities for you to promote your specialisms via training workshops, Q&As, legal updates, case commentary or something a little more social.
However, if their efforts are going to fly there are a number of things you could be doing to supplement your clerks’ efforts and reinforce your marketing materials. If both those channels are going to have the best possible chance of success, they will need to be backed up in person by barristers. I fully expect that some of you may now be shouting at the page that your personal involvement would be tantamount to ‘touting’, that such obvious actions would belittle your position and authority by rendering you little more than a salesperson. Let me reassure you, while I firmly believe in all of the suggestions I’m about to put forward, I can’t take the credit for them. These are all words that have come out of the mouths of solicitors when talking about their experiences of instructing Counsel and sit at the top of their “if only” and/or “perfect world” lists. More importantly all have been either prefixed or suffixed with “and they’d get more work if they did …”! Above all else your instructing solicitors want direct access to you. They don’t want to feel you indulge in the ivory tower-ism The Bar has arguably been guilty of in the past. The one thing we are told time and time again by solicitors is that they want to foster the type of relationship with you that they have with their clients and that means having an occasional catch up over a coffee, lunch or a quick drink. From a client development point of view the types of conversations these more informal meetings garner will positon you ahead of the other barristers the client uses as they probably aren’t willing to have those types of meetings. From a personal practice development perspective, it will give you a perfect opportunity to showcase your full range of skills which will lead to introductions to your clients’ colleagues which will in turn increase your potential routes to work within their firm. Although this type of ‘coffee’ activity is repeatedly proven to be the most effective way to win new instructions, to some it can look a bit synthetic. If you are one of those barristers then try and look for the events that will be attended by a number of your main instructing solicitors. This provides
20 the barrister Trinity Term 2018
the perfect opportunity to see a number of people in one place at one time in an environment designed specifically to allow you to work your way around everyone you know without looking overtly ‘salesy’. The other benefit of attending this type of events is the solicitors you know will seldom travel alone. You will undoubtedly be introduced to your clients’ colleagues and that will allow you to grow your professional network easily and painlessly. All you need to do once those introductions have been made is connect via LinkedIn and make sure the new names are added (in a GDRP compliant way) to the relevant marketing and invitation lists. And if neither coffee nor events are your bag, you could consider offering your clients training. If you deliver these sessions at your clients’ offices (a smart switch as attendance at traditional seminars in Chambers is dropping as solicitors find themselves under increasing pressure from their clients), this is an easy way to showcase your knowledge and introduce the juniors you have coming through the ranks to your clients’ entire team. Organised properly, onsite training also offers the opportunity to inject a more social element so you can make that all-important personal connection. A lunchtime session can be extended to a shared sandwich buffet (and food is a sure-fire way to guarantee attendance!), a breakfast session could be bookended by a bacon sandwich and teas, coffees and juice or an evening session could be extended into the nearest watering hole. If you are going to offer training, try and find the time and format which suits your client best and delivers the most value. Old school ‘chalk and talk’ seminars are still the default for many Chambers but increasingly law firms are telling us that working through case studies, Q&A sessions and ‘top tips’ style sessions are much more valuable. At the end of the day the objective is to make sure you underline your technical knowledge and have a chance to build up rapport in the environment in which your clients feel most at ease so taking the time to sit down with your clients to work out the best format and best time of day to facilitate that format will pay dividends.
make one point well. Whilst working with The Lawyer some years ago their editor told me to “stick to one page on a smart phone” and that simple piece of advice has served me (and my clients) well in terms of producing effective short-from content. From a more practical point of view, people consume more and more information online today and having to scroll though pages and pages of text heavy screens or even print those screens off may put your readers off before they even start however good your content is. 2. Keep it practical: In the main while the solicitors/ general counsel who will read your content want to know the ins and outs of the law, they will be far more interested in how it applies directly to their practice. More importantly, they want to know how they can use the insight you provide to make them look more informed (i.e. better) in front of their clients.
And of course, if your Chambers isn’t providing regular onsite training for the main firms you work with, it needs to! If the idea of spending time with the people who make up your practice concerns you (and it really shouldn’t in this day and age), then if nothing else make sure your clients know they can drop you an email or give you a call when they have a quick question. They are all under the same time pressures as you and don’t want to feel they need to schedule an appointment with your clerk every time they want to run something past you. Our experience is that solicitors will seldom use this privilege let alone abuse it but I cannot stress how highly they value just knowing they can call or email in an emergency. However, if the personal touch is something you are uncomfortable with, the good news is our increasing reliance on technology means you could circumvent coffee, lunch or beer; making a personal commitment to ramping up your online presence can be just as effective and there are a number of ways to do this. Earlier in this article I mentioned websites have to be more than just a list of your barristers and their CVs. If your website is going to deliver a decent stream of new opportunities it needs to inform and update so people
keep coming back because they know they will benefit from visiting and revisiting your site (digital marketing types call this keeping your site ‘sticky’). In order to achieve that objective, you will need a regular flow of relevant new content will be key but contrary to popular belief, that doesn’t mean writing weighty 2000-2500 word missives. It means producing regular but punchy, to the point pieces that: • • • •
Explain recent rulings Provide updates on the key points of cases Offer a little commentary on the latest legislative changes Highlight the likely effects all of the above will have on your clients and your clients’ clients
If your content is going to have the desired effect there are two rules you need to bear in mind: 1. Keep it short: The world is full of content and people no longer have the time or inclination to wade through pages and pages of academic cogitation and deliberation. They want to know what they need to know in the fewest possible words. It’s been repeatedly proven that the sites/blogs/columns that generate the best repeat traffic are those that come in between 350 and 500 words and
Make sure any update or insight you provide maps out not only what you want to get across but also provides clear direction as to the situations your points applies to and how that particular point of law could/should be applied in order to benefit the reader and their clients. And bearing both of those rules in mind, if you want to make multiple points then why not split those points into a series? It’ll keep each part short and to the point for the reader and it’ll prolong the level of visibility your content achieves for you without any significant additional effort. So in summary, yes it’s important to look the part and a clean and contemporary logo, a razor sharp brochure and a snazzy website will help but all of those things are tools rather than solutions. If the investment you have made in creating those marketing materials is going to deliver a tangible financial return, they need to be backed up by the most important marketing mechanic your Chambers has – you.
Douglas McPherson, Director, Size 10½ Boots and author of The Visible Lawyer and Package, Position, Profit 29 Bridgford Road, West Bridgford, Nottingham, NG2 6AU 5 Chancery Lane, London, EC4A 1BL t: 077865 40191 e: email@example.com w: www.tenandahalf.co.uk
the barrister Trinity Term 2018
The Windrush scandal just the tip of the iceberg By Steve Valdez-Symonds, Programme Director for Refugee and Migrant Rights at Amnesty UK Learning from the past The appalling treatment of the Windrush generation exposes much about the UK immigration system. The government is working hard to contain this ‘scandal’, but campaigners and others concerned with the enormous damage caused by immigration policy must strive to ensure this containment is unsuccessful. Yes, the British citizenship belatedly promised to those Commonwealth citizens who have suffered so much must be secured. But there are far deeper issues that must also be addressed - urgently. This isn’t just about who else is affected by hostile immigration policies - though that is certainly important - it is about recognising and confronting the harms and wrongs endured by the Windrush generation so that similar injustices aren’t repeated in the future. This will only be achieved by facing up to and learning from the past. The Windrush story On 21 June 1948, the Empire Windrush docked at Tilbury. Among those on board were 492 people from the Caribbean. The ship had stopped over at Jamaica, and as its capacity was
far from full, a newspaper advert was placed offering cheap transport to anybody wanting to come and work in the UK. As British subjects, they were freely entitled to come, stay and go from the UK as they wished. They shared the same nationality as the resident population as well as the many other British subjects of the Empire and former colonies. There are, however deeply shameful aspects to the history of these Commonwealth citizens who, as British subjects, came to the UK to fill labour shortages after World War II. Racism in immigration policy Firstly, despite there being no distinction within nationality law concerning British subjects, successive governments set about restricting the immigration rights of some but not others. They did so intending to differentiate on the basis of race. Many black and asian people from countries such as Jamaica and India had fought and died, alongside white British subjects in the two World Wars. Still, policy-makers assumed it would be predominantly white people, from the ‘old commonwealth’ or ‘white dominions’, exercising their longstanding rights to come to the UK. When it became clear this was not
22 the barrister Trinity Term 2018
the case, British politicians set about introducing restrictions on certain British subjects but not others. Successive immigration acts of 1962, 1968 and 1971 were passed to achieved this. The Immigration Act 1971 was the last of these. While it preserved certain immigration rights of Commonwealth citizens who had already settled, it firmly established a distinction among British subjects concerning rights to enter and stay in the UK. When the British Nationality Act 1981 came into force a decade later, it established what is now British citizenship. The primary means whereby the Act recognised British subjects at the date
of its commencement as British citizens was restricted to people the 1971 Act did not treat as immigrants. Many Commonwealth citizens, therefore, both ceased to be British subjects and did not become British citizens by the passing of this Act. A ‘hostile environment’ is nothing new The experience of many black and asian people and families who came to the UK in the decades after World War II was appalling. It is horribly apt that today’s Windrush scandal coincides with the 50thanniversary of one of the most seminal moments in that awful history of violent racism – Enoch Powell’s infamous speech. The suffering of many people – like Paulette Wilson, Michael Braithwaite and Anthony Thompson brought to light in recent news – is not limited to the insensitivity of modern immigration policies. When they came to the UK, they endured an environment filled with hostility, discrimination and violence – a reality that has largely been forgotten. Politicians who devised and introduced the immigration policies of those times not only pandered to that racism, they encouraged and, in many instances, believed in it. Certainly, their actions and their words helped foster and sustain it.
was first established.
Insensitive immigration policy The immediate cause of today’s Windrush scandal relates to more recent immigration policy. Policy which requires people to evidence their citizenship or immigration status to access healthcare and social assistance, to work, rent accommodation and have a bank account. Documentation of immigration status has also changed, and Home Office guidance has ceased to recognise the documents given to people settled in the UK before November 2008. These policies have led to many more people having their immigration status called into question. The Home Office has previously shown no sensitivity in demanding people document decades of their life in the UK; while generally refusing or failing to assist them by checking and disclosing its own records and that of other government departments. These policies do not just affect Commonwealth citizens. European nationals, refugees and other people settled in the UK for decades are also affected. They too experience difficulties evidencing their status, asserting their rights and face fees of hundreds of pounds merely to acquire new documentation introduced by the Home Office long after their status in the UK
Children’s rights blocked There are tens of thousands of children born in the UK growing up without citizenship and at risk of similar immigration-related problems in the future. Many of these children do not know they are not British. Those that do are blocked by a fee of £1,012 just to register the citizenship to which many of them are entitled. Then there are children born British citizens yet unable to demonstrate this because the Home Office refuses or fails to disclose its own records regarding the status of their parents. Future Windrush scandals Now Parliament is on the verge of passing a Data Protection Act, which will excuse the Home Office and others from duties to ensure that personal data, including about someone’s immigration status, is accurate and the person to whom it relates can know it is being used and check it. Here lie the seeds of many more Windrush-like scandals to come.
This article first appeared – as a blog on the Amnesty International UK website?
Migration crisis: UK detention policies lag behind EU neighbours
By Ruth Green, IBA Multimedia Journalist, International Bar Association
s immigration continues to be a divisive issue across Europe, the UK’s policy of indefinite detention is coming under renewed scrutiny. The UK remains the only European Union country not to impose a time limit on detention and in February around 120 women at the Yarl’s Wood Immigration Removal Centre in England went on hunger strike in protest against the policy and lambasted the Centre’s ‘inhumane conditions’.
many of which follow the Returns Directive, which states that immigration detention should not normally exceed six months.
“It seems to me that we can focus more on asking government to explain what useful purpose the detention without time limit policy is actually serving”
The strike caused a stir, particularly as only two years ago a governmentcommissioned review by the UK’s former prisons and probation ombudsman Stephen Shaw found that too many vulnerable people were being put into the UK’s immigration detention system, often to the detriment of their mental health. The 2016 review also mooted the idea of a 28-day time limit on detention prior to deportation. This would bring it in line with most other countries in Europe,
The UK Home Office pledged to address many of the review’s concerns, including reducing the number of detainees and the duration of detention. However, Emma Ginn, director of Medical Justice, a UK charity that offers medical assistance to immigration detainees, says little has changed. ‘The Shaw report was highly critical and said that there needed to be radical change,’ she told Global Insight. ‘The Home Office accepted most of those recommendations and came out with the ‘adults at risk’ policy and that was
Neelim Sultan Head of the family law, 1MCB Chambers and Co-Chair, IBA Human Rights Law Committee
meant to be a solution, but it’s actually made things worse. There have been six cases where judges have found that detainees’ continued detention amounts to inhumane or degrading treatment, which should be a real source of shame.’ In 2016 the European Court of Human Rights (ECHR) in Strasbourg ruled that the UK’s detention system complied with Article 5 of the European Convention on Human Rights. Two years on from this ruling and the Shaw report, the debate over a maximum time limit has resurfaced as the strike drew attention to this issue once again and #Timeforatimelimit continues to trend on social media. However, Stephanie Harrison QC, a public law barrister specialising in unlawful detention, immigration, and civil liberties at Garden Court Chambers, says the ECHR ruling gives the government little impetus to change the current system. ‘In legal terms, if the European Court of Human Rights is saying that a time limit is not necessary
the barrister Trinity Term 2018
Yarl’s Wood Immigration Removal Centre to ensure protection from arbitrary detention it doesn’t seem to me legally a route that is going to succeed and therefore politically I don’t know what the pressure is on them to do it,’ says Harrison. Instead, Harrison suggests the emphasis should be on ensuring existing policies are applied correctly and lawfully. ‘In a way the real focus should be on how they systemically fail to comply with any of the constraints that are placed on the exercise of this discretion. If you look at the time limits elsewhere in Europe they’re not exactly short periods of time. So having a time limit wouldn’t protect and wouldn’t end what is really at the heart of rule of law issues that arise in the context of decisions to detain. If they were properly applying the law as it is, there should be much fewer people detained and for much shorter periods of time.’ Despite pledges to reduce detainee numbers, a December 2017 report published by Amnesty International UK found that from June 2016 to June 2017 the UK placed 27,819 people into immigration detention. Far from being used as a last resort as defined under international law, this shows that detention has become disturbingly commonplace, says Steve Symonds, Refugee and Migrants’ Rights Programme Director at Amnesty International UK. ‘As our report last year highlighted, the use of detention in the UK has become routine,’ he told Global Insight. The government has invited Shaw to conduct a follow-up to his 2016 review, due to be published later this year. However, the UK is not alone in struggling to balance immigration challenges with upholding immigrants’ human rights, notes Symonds: ‘While the UK could certainly learn from others, it is difficult to identify any country that is entirely successful in meeting its human rights obligations in its response to immigration. Nonetheless, for all the various failings of immigration policy and practice among the UK’s European neighbours, it is striking that time limits on immigration detention exist in these countries and have done for several years.’ Neelim Sultan, head of the family law team at 1MCB Chambers and Co-Chair of the IBA Human Rights Law Committee, says there are still many questions over the
24 the barrister Trinity Term 2018
efficacy of the current system in the UK. ‘It seems to me that we can focus more on asking government to explain what useful purpose the detention without time limit policy is actually serving,’ says Sultan, commenting in her personal capacity as a human rights law practitioner. Sultan shares the concerns expressed by many, including the Shadow Attorney General Shami Chakrabarti following a recent visit to Yarl’s Wood, about the access and quality of legal advice available to detainees and their ability to participate meaningfully in legal proceedings concerning their children, including in the family courts. In the year ending June 2017, only 48% of immigration detainees were returned or voluntarily departed the UK. Whilst a 4% increase on the previous year, both Sultan and Ginn agree there’s compelling evidence to suggest other measures could prove more effective. ‘When you look at the alternative to detention, the reporting that they have in the community at the moment where people report every week or every month to an immigration office has a 95% compliance rate according to the Home Office’s own statistics,’ says Ginn. ‘When we’ve got something that is as accessible as that you wonder how they ever in the first place justified building these monstrous places that are so unsuccessful.’ Sultan says it’s particularly important to examine the effectiveness of all-female immigration detention centres like Yarl’s Wood since women are often disproportionately affected by the harmful effects of detention and the fact that many female detainees themselves are survivors of domestic or gender-based violence. ‘If you’ve got an alternative to detention registration system that’s working well, then the justification – and the cost to the public purse don’t forget – for maintaining centres of this kind and holding detainees in such conditions for periods without time limits, has to be asked over and over again, as it is unacceptable and inconsistent with our rule of law obligations,’ she says.
This article was first published for IBA Global Insight online news analysis, 20 April 2018, [available at www. ibanet.org] and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association.
Kings Chambers has become the first barristers’ chambers to be named a Northern Powerhouse partner. Nigel Poole QC, Head of Chambers, explains what it means for Kings and the region.
he Northern Powerhouse is a term with which we are all familiar. Originating in policy circles before becoming a key part of the Conservative Government’s 2015 election manifesto – the term has come to be widely used, but not always so clearly defined. I was initially skeptical about the project but I am happy to say I have come to the view that there is a great deal of merit in the Northern Powerhouse agenda – and that is why we have become the first barristers’ chambers to partner with the Northern Powerhouse.
and celebrating major projects in the North, which help to demonstrate the tangible growth of the Northern economy. Being a Powerhouse partner offers the opportunity to be part of a network of like-minded partners who are promoting the North, with the opportunity for collaboration. To that end, it has a number of official partners. Partners are representative of the whole of the North and cover different institutions, businesses and sectors. The initiative is reaching out to numerous businesses across a variety
It is important to say at the outset that the Northern Powerhouse is not about being anti-London or the South. Rather, it is about encouraging a greater confidence in the North. We should proudly promote the advantages of living and doing business in the North. In the legal sector, as well as in other fields of business, there is a tendency to look to London as a default position. The Northern Powerhouse is looking to change the culture and re-balance the economy by creating a burgeoning economic hub across the Northern cities and counties. It seeks to achieve this by encouraging Northern communities to work more closely together to create a North where companies choose to invest and create jobs, and people choose to live because there is a high quality of life, rising living standards and everyone is supported to reach their full potential. If we were to break that down one step further, we can say that the Northern Powerhouse is currently focusing on four key areas: connectivity and transport; skills, science and innovations; quality of life and culture; and devolution. The Northern Powerhouse will help to build a network of businesses who all trust the economic potential of the North and support the need for a combined effort by government and business to realise that potential. A key part of that agenda is promoting
students. This includes a tailored minipupillage programme for 25 students this summer – a three-day event that will comprise court visits, advocacy exercises, and talks from barristers, clerks and the judiciary. The status quo is that the centre of gravity within the civil justice system is firmly in London. However, the balance is beginning to shift. To counteract that, and create further opportunities within the North’s legal sector, we have already begun meetings with other stakeholders to promote devolution within the legal system, and to provide a balance that more truly reflects the needs of the population across the whole country. It is obvious there is no shortage of outstanding legal talent in the North of England, and we want to see that pool of talent continuing to expand, providing real impetus to the northern economy.
of sectors. They include Siemens, Vodafone, Deloitte, Barclays Bank, various universities, airports and enterprise partnerships. At Kings, we believe that by becoming a partner, we can take an important leadership role in collaboration with others in the legal sector, and the wider business community, to help build the Northern Powerhouse. With 110 barristers specialising in all aspects of civil law, including business, property, planning, sports, licensing, regulations and health and safety, and bases in Manchester and Leeds, we believe we are ideally placed to make a real contribution to the project. As befits the agenda, we are initially focusing on working with regional universities to increase opportunities available to the best and brightest
There is a fantastic opportunity to attract more work to the legal sector in the region – and that is an endeavor we are dedicated to fulfilling. Our sports network and our international team are both busy at work enhancing the profile of the Northern legal sector. Our particular strength in areas of law that affect businesses and development means we are very well placed to help and work with many other partners within the project. We are confident, also, that both Kings as a partner, and the Northern Powerhouse agenda itself, have strong support from the government and Northern Powerhouse Minister Jake Berry. Combining our expertise with the efforts of government and other key stakeholders across a wide range of sectors in the region can help ensure that the legal sector can fully participate in making the Northern Powerhouse a true success. The North of England has a tremendous amount to offer. It is a great place to live and do business – and the region need not be shy about making that argument.
the barrister Trinity Term 2018
Don’t Shoot The Messenger – Whistleblowing in a Developing Legal and Cultural Context By Nick Johnson QC, member of Exchange Chambers and also collaborates with Bright Line Law.
histleblowers can be such a useful resource in uncovering risks and promoting good corporate governance. Yet historically and more recently, so many seem to be immediately distrusted, ignored, challenged, vilified and penalised. Why is this? Can legal developments help change the pervasive culture? In March this year, I was part of an international panel discussing this topic at the American Bar Association White Collar Crime Conference in San Diego. It is a 3-day conference which, quite apart from offering great networking with like-minded specialists, promotes some excellent international speakers. The hypothetical scenario we considered involved suspected cartel activity and corporate bribery but this allowed consideration of wider issues such as whistleblower protections, financial rewards and developing trends across jurisdictions. The UK has comparatively robust protections for whistleblowers. Sadly, it took a number of disasters to bring this about. In March 1987, the Herald of Free Enterprise roll-on/roll-off ferry capsized as it set off for England, killing 193 passengers. A sleeping assistant boatswain hadn’t closed the bow doors but the root cause of the sinking was a “disease of sloppiness” in the corporate hierarchy, including middle management who had failed to act in the face of five warnings from staff about sailing with doors open. A few years later in 1991, the BCCI bank collapsed causing £2bn losses, partly as a result of a corporate culture where nobody dared speak out about wrongdoing. The mid-90s Inquiry into the Arms to Iraq scandal found that a Matrix Churchill employee had warned the Foreign Office that arms-making equipment was being produced for Iraq despite an embargo; he was prosecuted rather than supported. Such events helped bring about the Public Interest
Disclosure Act 1998, which of course protects workers in both the public and private sector, for proportionate disclosures in relation to specified subjects of public concern, such as whistleblowing about a criminal offence, breach of contract or health and safety or a miscarriage of justice. The Act sets out different requirements depending to whom the disclosure is made, becoming more demanding as the disclosure becomes more remote from the employer. If the whistleblower satisfies the terms of Act, he or she is protected from various detriments and can bring a claim before an employment tribunal at any stage and with no limits on the compensatory award. In more recent years, The Enterprise and Regulatory Reform Act 2013 introduced major legislative changes. It brought in protection for some healthcare professionals and the police. Further, the whistleblower must now reasonably believe he or she is acting in the public interest. Conversely, protection no longer depends on demonstrating that disclosure was made in good faith, as this was seen to place the focus too much upon the messenger and not the message. So long as there is a reasonable public interest belief, lack of good faith can reduce compensation by 25%. Another significant development is that employers are now vicariously liable for whistleblower victimisation by workers and agents, subject to proving a defence of having taken all reasonable steps to prevent this. This concept of corporate vicarious liability subject to a reasonable or adequate measures defence has of course crept into areas of the criminal law, no doubt again with the intention that legislation can bring about a change in corporate culture. For example, s.7 of the Bribery Act 2010 introduced a corporate offence of failure to prevent bribery even where bosses might be unaware of it, subject to an “adequate procedures” defence. The first jury conviction for
26 the barrister Trinity Term 2018
a s.7 offence occurred in April this year in a case I acted in, of Skansen Interiors Ltd; more prosecutions and/ or Deferred Prosecution Agreements are on the horizon. Further, Part 3 of the Criminal Finances Act 2017 introduced corporate offences for a failure to prevent the facilitation of tax evasion, subject to a defence of having all reasonable prevention procedures in place. There are also examples in UK law of a duty to blow the whistle. So, a bank compliance officer might fall foul of the Proceeds Of Crime Act 2002 if he acquired information that another is or may be engaged in laundering the proceeds of crime, and did not report it. Sections 19 and 20 of the Terrorism Act 2000 have similar provisions regarding failures to disclose financial assistance for terrorism. Further, FCA regulated firms acting to the detriment of whistleblowers may bring into question their own fitness and propriety and so be in breach of threshold conditions of suitability. So far, so good. Forms of civil, criminal and regulatory liability may well act to change corporate attitudes to whistleblowers. Proactive steps are now required in terms of developing effective policies; a good whistleblower corporate protection policy is no doubt an integral part of wider anti-bribery and anti-money laundering corporate policies and procedures. However, one aspect of this which still intrigues many of our US colleagues is the UK’s failure to implement any widespread system of financial rewards for whistleblowers. We have no legislation comparable to the US False Claims Act or Dodd Frank Act. Particularly in the context of complex, corporate crime, why would anyone speak out against such powerful companies, who have huge resources to defend themselves and undermine the whistleblower, without the possibility of financial reward for doing the right thing? Is it not a little naïve to assume that all whistleblowers can be motivated by the public interest alone?
Of course, there are some limited exceptions in England and Wales. The Competition and Markets Authority operate a discretionary reward system for whistleblowers in cartel cases. Up to £100,000 can be awarded to the whistleblower, for example where he or she was innocent, gave great quality information, prevented significant harm and undertook significant risks. This might sound attractive and indeed it operates alongside a corporate leniency programme for early, unprompted disclosure of cartel activity. It is however a drop in the ocean compared to some US cases. In 2012, Bradley Birkenfield, who had admitted to smuggling diamonds in a toothpaste tube among other offences and who received a 30 month prison sentence, also received $104m for helping authorities to uncover schemes to hide billions of dollars in Swiss bank accounts. Compare that to the HMRC approach over here. They operate a “hotline” encouraging the public to blow the whistle in relation to tax evasion. While rewards can be given, precise figures are not published and are likely to be, in total, less than £1m a year. And while the Serious Fraud Office operates a whistleblower scheme, it does not offer financial incentives. There are many stated justifications for this difference in rewarding whistleblowers. It undermines the moral
stance of the genuine whistleblower. It can lead to a focus on attacking their credibility, which is far easier to do when money can exchange hands. And it can of course deter the very changes in culture that the legislation is generally aimed at bringing about. After all, if the State provided a widespread reward scheme, why should companies offer their own incentives and protections for whistleblowers? Research was carried out into the issue of rewards in 2013/14 by the UK Government, the FCA and Prudential Regulation Authority and it was recommended that, for now at least, a UK rewards scheme should not be developed further. I suspect that, notwithstanding those objections, there may well be developments here towards a rewards system similar to that in the US. With Lisa Osofsky, a former US practitioner, now Head of the SFO and an estimated £90bn laundered through the UK every year (mainly the London property market), the demand may grow for a far more effective fight against corporate fraud and money laundering. Such investigations so often start with good quality whistleblowers and, in such cases at least, it may be thought that such laudable behaviour can and
should be rewarded, albeit with proper safeguards in place. In the meantime, Sir Anthony Hooper heads up an excellent charity, Public Concern at Work, which has made a number of recommendations. A Code of Practice on whistleblowing which courts and tribunals could take into account would be welcome. The categories of wrongdoing which give rise to statutory protection should be extended to gross mismanagement and serious abuse of authority. Job applicants, student workers and volunteers should be protected. It remains to be seen whether the wider culture will catch up with the changing law. Corporate culture is a fundamental battleground in this regard. During the LIBOR scandal, a Barclays employee told a New York Fed analyst during a phone call, “We know that we’re not posting, um, an honest LIBOR…and yet we are doing it because, um, if we didn’t do it, it draws, um, unwanted attention on ourselves.” He was told he had to accept it and neither his nor the New York Fed President’s warnings were acted upon.
The dawn of cryptocurrency in divorce By Roger Isaacs, Forensic Accountancy Partner at Milsted Langdon
ecent reports suggest that a growing number of divorce cases in the UK involve cryptocurrency, such as Bitcoin, as an asset listed by separating partners.
In some cases, there has been a suggestion that one partner is using cryptocurrency to hide assets from the other. In such cases, in theory, the court can order that digital forensic specialists are given access to relevant computers so that a search can be made for evidence of cyber-currency transactions in files, emails or browser histories. There are a number of difficulties that will be faced by those who are considering applying to the court for this type of search and seizure order. Specifically the courts will not be prepared to allow parties to undertake a “fishing exercise” and compelling evidence will, therefore, need to be adduced to support the contention that it is reasonable to believe that crypto-currency assets may not have been disclosed – mere suspicion will not usually suffice. Furthermore, once an order has been made, the party benefitting from it will have to give careful consideration to
how best to enforce it and to obtain physical custody of the computers or digital records in question. Another option worth considering is the appointment of a court receiver who can be given extensive powers to take control of assets of all types, but even a receivership will not be a panacea to the problems raised by virtual currencies. Matters are further complicated if one considers questions of jurisdiction. Imagine an amount of cyber-currency that is held in an e-wallet on an individual’s iPhone. Now suppose the individual has two phones both with a copy of the e-wallet, one of which is in England and the other in the United States. Is the currency in the UK or the US or both? There is probably no right or wrong answer to this. In a family context, search and seizure orders are rare in the extreme and due to the innovative nature of cryptocurrency and its relatively recent invention, the courts are yet to be given specific procedures or powers to use when dealing with it. Indeed, even the simplest issues, such as legal ownership,
the barrister Trinity Term 2018
even tougher. It is easy to see why in recent years these forms of digital currency have become popular with the criminal underworld and why so many Governments and organisations are exploring new ways of regulating these systems. They tend to be torn however between a desire to restrict illegal activity and a desire, especially in the UK, to foster innovation within financial markets. Crypto-currencies may have a reputation as being the preserve of those seeking to undertake illegal activity but the Blockchain technology that lies behind it is likely to become an ever-more common feature of commercial transactions. Online retailers, for example, would like nothing more than to be able to transact with customers using a currency that enabled them to circumvent the banking system.
are difficult to apply to virtual currencies. For example, it is generally the case that ownership of a crypto-currency arises by virtue of knowledge of what is called the “Personal Key”, which is simply a number with a large number of digits. If one spouse shares the Personal Key with the other, or alternatively, if one spouse acquires knowledge of the Personal Key in relation to crypto-currency acquired by the other, it may or may not have become a joint asset, depending on the circumstances. Having highlighted a number of ways in which cryptocurrency presents unique challenges, it is important to reflect that it is in many ways similar to any other assets, be they gold bullion, cash or investments. On this basis, from the perspective of a forensic accountant, it should be no easier or harder to track down than cash. In most asset tracing cases, investigating accountants will start by finding the connection between the person and the asset. Despite being cleverly masked, there is often a money trail that starts with the withdrawal from a bank account that funded the original acquisition of the cyber-currency. The difficulty in practice is that bank statements are often only disclosed for recent periods and if cyber-currencies were acquired long ago, it may be difficult to obtain the bank statements for the relevant periods. If a person buys an asset using funds in a bank account, there will be a direct link between the bank account and the transaction, which forensic accountants can quickly identify. Matters become much more complex however when assets are bought for an individual by a third party to mask its purchase.
Ironically, despite its association with secrecy, the Blockchain basis of cryptocurrency means that in some cases it can be traced more easily than cash. If someone gives me a twenty pound note I have no way of telling where it came from. By contrast some cyber-currencies come with a built in audit “trail”. Another important consideration is the volatility in the cryptocurrency world. The wide variation in the value of Bitcoin has been widely reported and it is quite possible that during course of the divorce process the value of cybercurrencies could vary far more than other, more stable assets. A final complication is that, if the marital assets include crypto-currencies, consideration will need to be given as to whether they are subject to a latent tax charge. The tax rules governing cyber-currencies are far from straightforward but in essence there are three possibilities. The first is that any rise in value is exempt on the basis that it is effectively a currency held in a manner analogous with the acquisition of foreign currency for the purpose of holiday expenditure, recognising of course that no one buys Bitcoin to pay for a hotel in Bitcoin Land! The second possibility is that rises in value are subject to income tax. This tax treatment will apply if HMRC considers that the cyber currency transactions amount to “currency trading”. A third possibility is that there could be circumstances in which HMRC argued that an increase in value in cyber currency was a chargeable gain subject to capital gains tax. Of course all three treatments are predicated on the basis that the currency was within the UK and therefore subject to UK taxation. This, once again, raises the issues of jurisdiction mentioned above. Finally, if there is evidence that cyber-currencies have been used to evade tax, one would need to consider whether there might be a risk of penalties which could be for up to 100 per cent of the tax (which could include VAT) and interest.
In the past it was common for unscrupulous businessowners to offer “discounts for cash”. Nowadays withdrawing or depositing large sums of cash causes suspicion but that is not necessarily the case with cybercurrency transactions.
Where a wallet or pool of cryptocurrency is discovered, or its existence is suspected, during an initial stage of divorce proceedings it is vital that legal advisers act quickly and work with forensic specialists to ensure that there is full disclosure and that appropriate steps are taken to preserve any assets that may be in jeopardy
In theory a business-owner might offer “discounts for Bitcoin” or some such incentive to build up a stockpile of valuable crypto-currency that could remain hidden from a spouse or from HM Revenue & Customs (HMRC).
Roger Isaacs, Forensic Partner at Milsted Langdon.
In cases such as these, transactions are typically traced not by following a money trail but by undertaking electronic searches of communications between the individuals suspected of collusion. Once again, the challenge will be to persuade the court to grant what will inevitably be considered draconian search and seizure orders. In some cases, such as Monero, digital currencies are purposefully designed to avoid tracking, while in other cases exchanges are located in jurisdictions outside of the law of England and Wales, making discovery and recovery
28 the barrister Trinity Term 2018
Milsted Langdon is an award-winning Top 100 accountancy firm,. The firm has 28 partners and directors and more than 200 staff across offices in Bath, Bristol, London, Taunton and Yeovil. Milsted Langdon is a member of MGI Worldwide, a top 20 ranked global accounting network with some 5,000 professionals in more than 250 locations around the world. For more information about Milsted Langdon, please visit https://www.milsted-langdon.co.uk/
Mediation in Intercultural Conflicts: How far can mediation help? By Susanne Schuler, Director of Training and Consultancy, CEDR
he antidote to our global problems may seem obvious cross-border cooperation. But, borders are there for a reason: they are built to surround cultural and religious groupings and for nation states to protect their own. The more we are connected technologically and economically, the more challenges we may face. Through the interdependence of nations and cultures, disputes and dispute resolution processes need to account for much more than just the dispute itself. As we follow new social and political trends and developments, intercultural understanding is key to averting potential conflicts and promoting cross-border collaboration. Intercultural mediation is used when a conflict is determined or influenced by cultural differences and when its resolution takes these cultural differences into consideration, even if the cultural differences may not be the actual or original source of a dispute. One might think that a common value system would allow us to transcend borders and enhance cooperation as part of a healthy, global community. Let us assume for a moment that this will work and let’s explore that value system- what components would we find? Experts agree that charity, fairness, benevolence, loyalty, and the protection of the rights and freedoms are common values that are found around the world. In our daily lives, this is experienced as positive conscience, virtues, a strong inner sense of justice, and an understanding of the consequences of our actions. Unfortunately, these components often prove to be highly ineffective when it comes to resolving cross-cultural conflicts.
Why is that? We tend to apply these values only to members of our own community and not to ‘non-members’ or members of other groups. So, we have values and live by them, but in order to resolve conflicts between communities and groups or even on a global level, we need to expand our borders and identify what it is we understand a community or group to be. Within a group, we have a common purpose. This is important and helps us deal with local conflicts very well; we respect the perspective and points of view of our fellow members. By changing our perspective and walking in our colleagues’ shoes, we can begin to cooperate effectively by appreciating both points of view. Amongst our many values, there is one ‘driving value’ which is powerful enough to connect different perspectives and facilitates effective cooperation. It’s the value of Charity. It is experienced as graciousness, benevolence and love. Is this the purest form of altruism? It moves us to care about the well-being and outcomes of others within our group. “Within our group”, soldiers, for example, are trained to dehumanise their enemies in order to be able to fire their weapons if necessary. They must switch off this human trait in order to be able to kill members of another group. This kind of dilemma is called the “Us-Themproblem” (Joshua Green). Evolution prepared us to deal effectively with the “I-We-problem”, to put our own interests below those of others within our social community. This has been critical for our survival. It didn’t, however, prepare us to cooperate with “Them”. In transnational business, global pollutions, and multi-country conflict,
something more is needed to achieve a resolution. An emotional extension of our borders has become crucial for our survival. Learning how to do this is a great opportunity. It may be the only chance to overcome global problems and to resolve conflicts effectively. This requires developing a new vision with an expanded identity which spreads beyond borders – a global identity as an add-on to our existing local ones. This may allow us to change perspectives, combine points of view and to care for others within and beyond our own communities. Intercultural Mediation is a powerful tool, which can assist us in changing perspectives and developing a curiosity for the issues of others and breaking the borders that exist between individuals and cultures. Intercultural competence is key, not just for those in positions of power but also for the wider community. Understanding common cultural values allows us to transcend cultural and political borders through effective dialogue and collaboration to resolve disputes.
Susanne Schuler is a qualified lawyer and an accredited mediator in the U.K., Germany and Switzerland. She has been working in the dispute resolution field since the mid 1990’s and has facilitated more than 100 mediation processes in recent years. Her clients mainly originate from the corporate world but community and divorce mediation also form part of Susanne’s dispute resolution work before joining CEDR. Languages: English - French - German - Spanish
the barrister Trinity Term 2018
Boom in litigation funding has transformed the dispute resolution landscape By Verity Jackson-Grant, Director of Business Development at The Judge Global, Specialists in funding
here is little doubt that the growth of the litigation funding market coupled with, or perhaps fuelled by, developments in costs regulation and the increased focus on the management of corporate legal spend has fundamentally changed the dispute resolution landscape. By far the biggest impact has been on the pricing structures adopted by disputes lawyers with many creating specialist pricing teams to develop a more diverse menu of retainer options led by client demand. Whilst solicitor firms have gradually been coerced into reducing their reliance on the hourly rate, barristers have traditionally been immune to such pressures. In most circumstances, the barrister will be instructed by a solicitor and will have limited interest in how the client funds their case provided their fees are paid. This may
continue in some classes of disputes and for certain sets, but others will inevitably face increasing demand to show more commercial alignment or risk missing out on the prime instructions. This will be especially true of barristers growing their direct client base and those working with solicitors that now offer damages based agreements (DBAs). The DBA regulations stipulate that the barrister’s fees must roll into the DBA success fee and, as a result, barristers are likely to see increased pressure from solicitors seeking to minimise their cash outlay when acting under a DBA. The sets that meet the change in tide with innovative fee arrangements of their own are likely to reap the biggest rewards. Sophisticated pricing teams can devise incredibly innovative fee arrangements that can be managed inhouse without the need for external support from
30 the barrister Trinity Term 2018
third party funders or insurance providers. However, utilizing the funding and insurance market can vastly increase the options available whilst decreasing the burden on a firm’s internal accounts. As the market has developed, funding options have become increasingly diverse. Whilst the more traditional funding for one off cases remains the bread and butter of the industry, a variety of alternative options exist for those wishing to manage cash flow or risk on multiple cases under one arrangement or for clients seeking to release cash through the monetization of their claim. These options are often directed at solicitors and their clients with barristers’ fees falling within the catch all “disbursements” pot. However, they can also be tailored to provide a stand-alone solution for barristers looking to take more control over their fee realisation. Understanding the
full breadth of the options available and how they can be combined can be invaluable when considering the most effective way to attract new work whilst seeking to maximise fee realisation. A common misconception when discussing alternative fee arrangements is that the fees must be at risk. Whilst risk sharing for an appropriate success fee can be a lucrative option, it is not always the best option. Moreover, some clients are not interested in this approach as it can be perceived to mean compromising on quality. There are, however, various combinations of inhouse pricing structures and funding and insurance mechanisms that demonstrate commerciality without the need to take significant risk. The most common include litigation funding, deferred fee arrangements and damages-based agreements or conditional fee agreements underpinned by the relatively new concept of WIP insurance.
Litigation funding Barristers that have not had cause to be involved in a funding agreement themselves are likely to have provided an opinion to a client that was intended to be used for the purpose of obtaining funding. Most will, therefore, be familiar with the process and criteria used by the key players to the extent that it need not be repeated here. Save to say that funding can be obtained by the client in order to pay their legal fees or can be obtained by a solicitor or barrister to facilitate their ability to offer alternative fee arrangements. Funding is the most obvious mechanism to adopt when cash flow is the key concern, but it comes at a hefty price as the funder’s success fee can be circa three times their investment plus the repayment of the original capital.
agreement backed by insurance can often provide a tidy solution. Under this arrangement, the barrister agrees to defer some or all their fees until the conclusion of the case on the basis the client (or the solicitor if a DBA is in place) remains liable to pay them whether the case wins or loses. The client or the lawyer can then obtain insurance to indemnify the deferred portion of the fees in the event of a loss. This can work particularly well in circumstances where the solicitor is working under a DBA and wants the barrister to help them to minimize their cash outlay during the life of the case. A word on litigation insurance - there is relatively little awareness of the important role insurance can play alongside, or as an alternative to, funding a dispute. Insurance may be available for a percentage of solicitor’s fees, for the full amount of counsel’s fees and other disbursements and/or to cover the risk of an adverse cost order and can often provide a more flexible and cost-effective route to cost certainty than funding where cash flow is not an issue. Moreover, the typical premium is usually a fraction of the cost of a funder’s success fee and, as such, insurance is available for a broader set of cases than litigation funding. It’s worth noting that insurers will typically cover the risk of a paper judgment. If there is a shortfall between the legal costs outlay and the sums recovered, an indemnity would apply and the insurer will step in to pay the shortfall, thereby ensuring the recovery of the full fees. Of course, the insurer will charge the client or the lawyer a premium for covering the deferred fees but, in most instances, the premium will only be payable if the client’s case is successful.
Deferred fee arrangements backed by litigation insurance
Damages based agreements/conditional fee agreements (CFA) underpinned by WIP insurance
Where the client cannot or does not wish to self-fund their case, but the economics of the matter do not allow for litigation funding, or where the client does not wish to part with a large chunk of their damages, a deferred fee
Whilst many cases are ideally suited for a contingency fee, the economic reality of risking their full fees is often too much for a lawyer to stomach. A recent solution to this problem is the development of WIP insurance.
WIP insurance can cover a portion of the solicitor’s fee risk, under a DBA or CFA as well as 100% of Counsel’s fees. This type of insurance is proving popular on both sides of the Atlantic. However, it has the added benefit in England and Wales, where hybrid DBAs are unlawful, of enabling law firms to offer a full DBA to the client whilst ensuring they receive some fee income, regardless of the outcome of the case. Under the insurance policy, if the case is lost, the insurer reimburses the law firm for an agreed portion of the fees. If the case is successful and the firm recovers its success fee, the law firm pays the insurer a premium from the success fee collected. The premium is only payable if the case succeeds and generates more than an agreed fee income. If the policy is taken out by a solicitor, the policy will typically cover 50% of their fees as well as 100% of counsel’s fees, however, it can be tailored to sit behind a barrister’s CFA or DBA (albeit DBAs are less common) as a stand-alone product to provide budget certainty needed to offer a risk sharing arrangement in return for a success fee. It is likely that a combination of client pressure, the prospect of attractive returns and the comfort of WIP insurance will lead to law firms taking on more contingency fee arrangements. This, in turn, could result in solicitors taking a stricter approach to how and when they pay barristers’ fees and may, ultimately, dictate to whom they refer their work. Barristers that are largely reliant on traditional billing models may need to think more creatively about their pricing arrangements, but all is not lost. A variety of funding and insurance products already exist, and are continually being developed, that can help barristers not only maintain their current level of fee realization but can also improve their profitability.
Verity Jackson-Grant, Director of Business Development at The Judge Global, Specialists in funding & insurance for litigation
the barrister Trinity Term 2018
Suffragette city welcomes President of Supreme Court - who inspires all at Women In The Law UK (WITLUK) annual Dinner 2018 By Salli Penni, Barrister at Law
he first female president of the Supreme Court, Baroness Hale a former lecturer at the University of Manchester and Under Treasurer of Gray’s Inn was invited as the 2018 WITLUK guest speaker. Coinciding with 100 years since women got the right to vote and celebrating UN IWD - international Women’s Day, Baroness Hale spoke about the suffragettes and the difference they made. Finishing on a note that we still have a long way to go, but anything is possible. The event was a sell out and was attended by over 200 men and women ranging from BAME to various different social back-ground.
Social Mobility was alive and well at this dinner with many commenting they are only at the Bar with thanks to scholarships from the Inns of Court. WITLUK was founded to inspire the next generation of Lawyers through inspiring events and mentoring programme. As Manchester played such an important role in the Suffragette movement we were delighted to celebrate with the first female president of the Supreme Court. Amongst Manchester’s finest in attendance were The Recorder of Manchester The Rt Hon David Stockdale, HHJ Elizabeth Nicholls, HHJ Patrick Field, John Broadly, Angela Rafferty QC Chair of CBA, Edith Conn
32 the barrister Trinity Term 2018
JP (and the Queens representative in the Northwest) Nigel Pool QC and deputy high court judge and also Winston Hunter QC, Bencher of Lincolns Inn and Deputy High Court Judge, Mr Justice Hayden and the soon to retire HHJ Penna and so many more. Dame Nancy Rothwell was unable to attend but sent a representative. There were many more from the Manchester Legal Community as special guests from commerce and industry. With a message in a speech about the suffragette Baroness Hale concluded by saying women can be anything they want to be.
With a wide range of WITLUK Ambassadors, Barristers chambers and firms in attendance this has grown to be one of Manchesterâ€™s premier events in the Legal calendar. It provides a marvellous opportunity for the Bar to meet solicitors and network amongst their peers. Former member of Lincoln House Chambers HHJ Libby Nicholls gave the introductory speech to Baroness Hale. Several chambers including Kings chambers donated a Jo Malone gift set and a chocolate hamper was donated by Kenworthys chambers who supported the fundraising for several charities including the Royal Manchester Childrenâ€™s Hospital, for their support
in the aftermath of the Manchester Bombings, Prevent Breast Cancer, based at Wythenshawe Hospital, and Reign, a charity preventing child sexual exploitation through the training of police officers and social as well as Forever Manchester charity. The event was kindly sponsored by Close Brothers(, Lincoln House Chambers, the SRA, Kings Chambers Manchester, CILEX. Supported by Grayâ€™s inn and Middle Temple) and attended by many from London to Stoke.
another excellent guest speaker in March 2019 when it will be 100 years since women were given the legal right to practice. It will take place on the 14 March 2019. Tickets available now. In the mean time WITLUK are looking forward to continuing with their monthly professional development events which have a special emphasis on wellbeing.
To find out more visit www. womeninthelawuk.co.uk
Next years dinner is already set with
the barrister Trinity Term 2018
No Contest: Defended Divorce in England & Wales Defending a divorce is expensive, complicated and unlikely to succeed, making it an inaccessible option for most people, and an ineffective and unfair legal process. By Liz Trinder and Mark Sefton
Liz Trinder and Mark Sefton
ew research published on the 26th of April by the Nuffield Foundation explores why defended divorce occurs and examines how cases are dealt with by the courts. No Contest finds that the great majority of defences arise from quarrels about who is ‘at fault’, but in practice this is not something that can be determined by the courts, and most cases are settled, rather than decided by a judge. In addition, the financial and emotional costs, and discouragement from the family justice system, mean that defending a divorce is not an accessible option for most people. The report concludes that the law is generating disputes and then failing to remedy them, and calls for reform of the divorce law to remove the concept of fault entirely. The research was led by Professor Liz Trinder at the University of Exeter and is timely given the imminent Supreme Court hearing in the case of Owens v Owens, the only successfully defended divorce case in recent years. The No Contest report is a follow-up to last year’s Finding Fault report, and together, the two reports present findings from the first empirical study since the 1980s of how the divorce law in England and Wales is operating. Finding Fault reported that the law is incentivising people to exaggerate claims of ‘behaviour’ or adultery to get a quicker divorce. These claims cannot be investigated by the court or
easily rebutted by the responding party, leading to unnecessary conflict and a system that is inherently unfair. What is a defended divorce? No Contest focuses on the two per cent of divorces in which the spouse accused as being ‘at fault’ (the respondent) tries to take advantage of their legal right to formally defend allegations that they see as untrue or unfair. Contested cases are important because the court has an opportunity to test what the two parties say, rather than simply being able to rubber stamp applications. The researchers found three major problems. 1 The financial, legal and emotional barriers to defence mean that the majority of respondents do not get the chance to put their side of the story to the court. A third of respondents formally record their disagreement with allegations made against them, but only 2% say they intend to defend and less than 1% actually do. Defending a divorce is technically and emotionally demanding and few can afford the legal fees, typically about £6,000. Family lawyers and the courts generally discourage defence, seeing it as expensive, counter-productive and futile. Respondents are therefore unable to prevent being divorced on the basis of allegations that they think are untrue. 2 The law itself is causing most disputes that result in a defence.
34 the barrister Trinity Term 2018
The majority of those who do formally defend the divorce are not trying to stop the divorce from happening. Instead they want to give their reason for why the marriage broke down. None of those defences would be necessary if the law did not include fault. Only 18% of people defending were denying that the marriage had broken down. Their motivations varied, but defence could also be misused by those wanting to avoid a financial settlement or trying to retain control over their spouse. In some cases, the spouse appeared to be ‘in denial’ about the breakdown of the marriage. 3 Even defended cases rarely end up in a court hearing. Although those defending are trying to persuade the court to accept the ‘truth’ or justice of their case, the court is focused on compromise, trying to avoid further expense and acrimony for the parties. Almost all cases are strongly encouraged to reach a compromise before a trial before a judge, meaning the ‘truth’ is never established by the court. Only two cases in the report reached a fully contested final hearing, and the court allowed the divorce to proceed in both. Owens vs Owens: an exceptional case The Owens case attracted significant media attention in 2017. It is a rare defended case where the husband denied that the marriage had broken down and disputed the behaviour allegations. The trial judge described the allegations as “scraping the
fairly preside. This mismatch between the law in theory and the options available to people in practice, means that public confidence in the justice system is at risk of being undermined. Professor Trinder’s research shows that the dominance of ‘fault’ within divorce law can exacerbate parental conflict, which has a negative impact on children, and she makes a powerful argument for reforming the law to align with the family justice system’s wider focus on reducing conflict and promoting resolution.” 1. Divorce affects more than 100,000 families in England and Wales every year. If separating couples want to get divorced without waiting for two years (or five if the other person does not consent, as with the recent case of Owens vs Owens), one person must submit a petition detailing how the other is at ‘fault’. In 2015, 60% of English and Welsh divorces were granted on adultery or behaviour. In Scotland, where a divorce can be obtained after one year if both parties agree, this figure was 6%. barrel” and refused the decree. The Court of Appeal upheld that decision, finding that the judge was not plainly wrong, though noting that the ‘flimsy’ allegations were typical of many undefended petitions that are granted. The decision is being appealed to the Supreme Court and is listed for 17th May. The need for law reform The analysis of the 1% of divorce cases that are defended strengthens further the need for law reform identified in the Finding Fault report. The current law does not work well for the great majority of undefended divorces or for the tiny minority of defended cases. The researchers recommend removing fault entirely and replacing it with a notification system where divorce would be available if one or both parties register that the marriage has broken down irretrievably and that intention is confirmed by one or both parties after a minimum period of at least six months. There would be no need for a further procedure for defence under such a system. The research The research is based on court file analysis of 300 undefended cases, 100 intend to defend cases and 71 cases with formal Answers to defend the divorce. The case file analysis was supplemented by observation of the court scrutiny process and interviews and focus groups with petitioners and respondents, family lawyers and judges.
Professor Liz Trinder said: “The divorce law is now nearly 50 years old and reform is long overdue. Our interviewees told us how difficult marriage breakdown is, yet the law makes the legal divorce even more difficult than it needs to be. Having to blame one person to get a divorce does not help and in most cases is unfair. And the court is not able to investigate why a marriage has broken down and recognises anyway that it is a fool’s errand. The problem is that there is now a big gap between what the law is in theory and how it works in practice. That is not good for families or for the law. “While the Supreme Court may find a way to grant Mrs Owens her divorce, the Supreme Court can only interpret the law, it requires Parliament to change it. Reforming the divorce law to remove the requirement for ‘fault’ and replacing it with a notification system would be a clearer and more honest approach, that would also be fairer, more child-centred and costeffective. In the twenty-first century, the state cannot, and should not, rule on whether someone’s marriage has broken down and who is to blame.” Tim Gardam, Chief Executive of the Nuffield Foundation said: “The current law incentivises people to apportion blame for the breakdown of a marriage, but this research demonstrates that in practice this is a fruitless task and not one over which the justice system can effectively and
2. Parliament previously attempted to introduce no fault divorce in the Family Law Act 1996. However this was never implemented because of perceived problems with adding complex procedures to the existing legal system. This means that the Matrimonial Causes Act 1973 remains in force. 3. A summary of the October 2017 Finding Fault report and the report itself are available for download at http://www.nuffieldfoundation.org/ finding-fault-divorce-law-practiceeng... 4. The Nuffield Foundation funds research and student programmes that advance educational opportunity and social well-being across the United Kingdom. We want to improve people’s lives, and their ability to participate in society, by understanding the social and economic factors that affect their chances in life. The research we fund aims to improve the design and operation of social policy, particularly in Education, Welfare, and Justice. Our student programmes enable young people to develop their skills and confidence in quantitative and scientific methods. www. nuffieldfoundation.org
To obtain a copy of the report Contact: Fran Bright, Communications Manager, on 020 7681 9586 / 07581 216981 or firstname.lastname@example.org
the barrister Trinity Term 2018
36 the barrister Trinity Term 2018
EXPERT WITNESS SERVICES
EXPERT WITNESS SERVICES
the barrister Trinity Term 2018
38 the barrister Trinity Term 2018
EXPERT WITNESS SERVICES
EXPERT WITNESS SERVICES
the barrister Trinity Term 2018
40 the barrister Trinity Term 2018
trinity term issue