ESSENTIAL READING FOR BARRISTERS
30 April-24 May 2019 Easter Term issue
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Understanding Courts Something JUSTICE has been increasingly aware of in its work in recent years – but perhaps over its whole 61 year history – is that access to justice is undermined if people cannot understand the legal process that is taking place. This concern has formed the focus of our most recent report, Understanding Courts. Access to justice is what we are about at JUSTICE. Our vision is for fair, accessible and efficient legal processes, in which the individual’s rights are protected, and which reflect the country’s international reputation for upholding and promoting the rule of law. But what does access to justice mean in practice? In terms of the fair trial right provided by Article 6 European Convention on Human Rights, it is effective participation. The European Court of Human Rights had a stab at defining this over a decade ago,
“The right of an accused to effective
Criminal Justice Years of neglect have heaped colossal pressure on the whole system including those who work hard in it, and basic legal advice is being denied to people when they need it most. After decades of legal aid cuts by successive governments the criminal legal aid market has been placed under extreme pressure. Underfunding of the CPS and the Court system also contributes to the growth of inefficiency in the system, which in some instances is crumbling literally as well as metaphorically. The right to a fair trial is at the heart of a democratic society and it sets Britain apart from authoritarian regimes the world over. Yet, those accused of a crime in England and Wales are often forced on a nightmarish journey through the criminal justice system, whether they are guilty or not. It is encouraging there is a growing
participation in his or her criminal trial generally includes, inter alia, not only the right to be present, but also to hear and follow the proceedings… “effective participation” in this context Jodie Blackstock Legal Director, JUSTICE presupposes that the accused has a broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed. It means that he or she, if necessary with the assistance of, for example, an interpreter, lawyer, social worker or friend, should be able to understand the general thrust of what is said in court. The defendant should be able p.7
The findings revealed not only that the public really cares about justice but also that– they think politicians fail to prioritise as they should. This far-reaching research into public attitudes to the justice system in England and Wales also revealed that justice is as important to most people as health and education and that only twenty per cent think there is sufficient funding in place for those needing p.8 legal advice. The survey of 2,086
So you need a Digital Forensic Expert? By Dr David Schudel, Senior Manager, Keith Borer Consultants
New code of conduct set to be introduced as private prosecutions escalate By Jeremy Asher, Senior Associate at leading law firm, Ashfords LLP
Barristers - the do’s and don’ts of outsourcing By Maxine Park, Solicitor and Co-Founder of transcription and office support services provider, DictateNow
criminal law disclosure 26 The process, why is the system failing?
By Marlon Grossman, Solicitor
awareness of the crisis, and a consensus that the consequences of chronic underfunding can no longer be ignored. This is something the wider public should know and care about - not just a dedicated cadre of legal professionals operating in courts, police cells and prisons. A Populus survey commissioned by the Law Society, Bar Council and Chartered Institute of Legal Executives to mark the launch of Justice Week 2018 - a week of events and activities to boost the profile of justice and the rule of law - showed that government policies to restrict legal aid are out of step with public opinion.
News 3 4
Access to justice in defamation cases: Is After-The-Event insurance sufficient? Supreme Court rejects Strasbourg Court reasoning on the presumption of innocence
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Diversity at the Bar improved steadily during 2018 but further progress is needed The Bar Standards Board (BSB) has published its annual report on diversity at the Bar. The report shows that progress was made in 2018 with regard to both diversity at the Bar and to the disclosure rates of barristers providing data. While the diversity of barristers is improving, the report shows that more needs to be done to improve diversity within the profession. Some of the key findings include: •
at 62.0 per cent, men still outnumber women at 37.4 per cent at the practising Bar. The percentage of women at the Bar overall increased by 0.4 per cent during the last year; the percentage of Black and Minority Ethnic (BAME) practising barristers has increased by 0.3 per cent compared to December 2017. 13 per cent of the practising Bar is now
BAME; male QCs still outnumber female QCs, but the percentage of female QCs increased from 14.8 per cent in December 2017 to 15.8 per cent in December 2018; the percentage of BAME QCs has increased by 0.6 per cent year on year with 7.8% being BAME and 87.9% being white; and the gender and ethnic diversity of pupil barristers is roughly in line with the population of England and Wales, with 50.4 per cent of pupils being female and 16.3 per cent being BAME. Response rates amongst barristers disclosing their diversity information continue to increase across all categories except for gender which is already at 99.94 per cent. The response rate for many characteristics is still below 50
per cent, however, so there is still considerable scope for improvement. The BSB has a statutory responsibility to monitor and promote equality and diversity both as an employer and as the regulator of barristers in England and Wales. BSB Director of Strategy and Policy Ewen MacLeod said: “The more accessible the Bar is, the better it is able to represent the society it serves. Equality and diversity are priorities for us as a regulator and the data show that there was a steady improvement in gender and ethnic diversity at the Bar during 2018. But, we are aware that more needs to be done. We urge all barristers to complete the diversity data questions when renewing their practising certificates for the year ahead. This will enable us to act on accurate evidence to improve diversity.
Access to justice in defamation cases: Is After-The-Event insurance sufficient? The Joint Committee on Human Rights has published correspondence with Lord Chancellor and Secretary of State for Justice David Gauke about access to justice in privacy and defamation cases. Following the Government’s recent efforts to address the ECHR judgment in MGN v UK, the Committee raised some concerns about whether reliance on After the Event Insurance (ATE) strikes the right balance between the right to freedom of expression of the press, the right to privacy of individuals, and access to justice. ATE insurance covers the risk of having to pay the other party’s legal costs in an unsuccessful case. Access to justice needs be both effective and affordable. The Committee noted that it is not clear how individuals whose right to a private life has been violated can access justice if they are unable to afford or obtain ATE insurance. This could effectively prevent access to justice in such cases and therefore prevent access to an effective remedy for a breach of an individual’s Convention rights. The Committee requested further information about the Government’s plans, including: monitoring the market in ATE insurance; number of cases
funded by ATE insurance; incentives against defendants weaponizing costs; and measures to protect an individual’s right to private life before that right is breached by a publication; whether the Government has any plans to vary the current system. The Secretary of State’s response contends because premiums are structured in a way that reflects the risk (and thus the merits) of a case, the current arrangements ensure that good cases can be taken forward while weak cases are likely to be filtered out. However, the response says that because the insurance market is independent of Government, the data available to the
Government is limited. This therefore raises concerns that the Government does not know whether ATE insurance will be available in all cases where an individual’s Convention rights have been breached. The Committee is concerned to ensure that individuals can enforce their human rights, which was the subject of our recent Report Enforcing Human Rights. While the MoJ says that if any practicing solicitors raise any concerns about the availability of ATE insurance for these cases it would be happy to look into them, it appears to have no plans to monitor the situation.
Committee Membership: Ms Harriet Harman MP (Chair) (Labour) Baroness Hamwee (Liberal Democrat) Fiona Bruce MP (Conservative) Baroness Lawrence of Clarendon (Labour) Ms Karen Buck MP (Labour) Baroness Nicholson (Conservative) Alex Burghart MP (Conservative) Baroness Prosser (Labour) Joanna Cherry MP (SNP) Lord Trimble (Conservative) Jeremy Lefroy MP (Conservative) Lord Woolf (Crossbench)
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Supreme Court rejects Strasbourg Court reasoning on the presumption of innocence Four from compensation.
On January 30, 2019, the Supreme Court gave judgment in two appeals, in which JUSTICE intervened, on whether the presumption of innocence is violated by the compensation scheme for people who have been wrongfully convicted of criminal offences. By a 5-2 majority the Justices concluded that the presumption of innocence is not affected by the test that the Secretary of State applies when deciding whether a wrongfully convicted person is entitled to compensation. The statutory compensation regime 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 offence.’ This is an incredibly high threshold, which in practice means only those with DNA or alibi evidence proving innocence will be eligible. This type of evidence is rarely found. Such a narrow compensation test has contributed to there being only four successful compensation applications in the last four years, and would have excluded the Birmingham Six and Guildford
The Supreme Court considered a long line of European Court of Human Rights cases on when the presumption of innocence is engaged in compensation regimes – including its leading Grand Chamber judgment on the UK – and when a test will offend the presumption of innocence to which a person is entitled once their conviction has been quashed. The majority of the Justices disagreed with the reasoning of the European Court of Human Rights as to when the presumption of innocence is engaged in legal claims following a conviction. They found that the reasoning of the Strasbourg Court was unclear as to when the presumption will apply. As a consequence, the majority disagreed that the compensation regime in England and Wales infringes the presumption of innocence. The majority of Justices also concluded that it is possible to find a person ineligible for compensation without making any reference to whether they should be considered guilty of the acquitted criminal offence. This is a disappointing decision, which the two dissenting Justices considered ignores the realities of how a person is acquitted and how the compensation test operates in practice. It also discounts the careful and detailed reasoning of the Strasbourg Court,
which has set out the need for a link between the criminal acquittal and subsequent proceedings and for public authorities to avoid using language which calls into question the innocence of the person claiming compensation. JUSTICE agrees with Lord Reed’s analysis that it is unrealistic to separate the compensation test of innocence from calling into question an applicant’s general innocence of the crime. If compensation is denied because a new fact – which led to the acquittal – does not establish innocence, it can only undermine the person’s acquittal. JUSTICE’s director, Andrea Coomber, said:
“The complexity of today’s judgment highlights that this area of law needs urgent and serious overhaul by Parliament to ensure that where miscarriage of justice occurs, there is appropriate reparation. People who have served years in prison and had their convictions quashed deserve support to try to rebuild their lives. This includes not only compensation but readily available and suitable accommodation, financial allowances, psychological treatment and a review of what went wrong.”
Legal Ombudsman has vital role in changing market
The Legal Ombudsman (LeO) has made progress with its modernisation programme and should now strengthen measures to earn the trust and confidence of the public, the Law Society said in response to the ombudsman’s business plan. “LeO does not yet consistently deliver high quality decisions and its performance is variable on other key indicators,” Law Society president
Christina Blacklaws said. “It would be good to see in more detail how the Ombudsman will address the performance issues it has identified. “We are concerned about the absence of detail in LeO’s business plan on measures to address problems that may arise from substantial changes to the Solicitors Handbook. “Changes to the rulebook will have a
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profound effect on the legal services sector, which could lead to serious damage to the reputation of the profession as well as weakened redress and protection for clients. “Concrete, specific plans to deal with the range of complexities that are likely to arise as the legal marketplace changes would benefit the public and the profession.”
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UK lawtech not yet disruptive, new research shows
Lawtech in the UK has a long way to go if it is to reach its potential, the Law Society said, as it launched new research into the development and adoption of sectorspecific technology. In its Lawtech Adoption Report, the Law Society explores the UK’s burgeoning lawtech sector and highlights key developments in this area and what this means for the legal profession and the business of law. Law Society president Christina Blacklaws said: “A range of drivers is accelerating development and adoption of lawtech, from an escalating need for efficiency, increasing workloads and complexity of work to client pressure on costs and shorter turnaround times. “Some of the most notable growth areas are legal analytics, legal project
management, governance and compliance and contract management. “Lawtech in the UK is largely focused on efficiencies and automation rather than on delivering ‘new types of law’. As such it is less mature than other fields of digital disruption – such as fintech, where there is more funding and regulatory alignment.” •
The business-to-business legal services market is the most mature, particularly within large law firms, where AI and machine learningdriven applications are ubiquitous. Some of the more established areas include collaboration tools, document management, IP management and e-billing. The business-to-consumer legal market seems to be lagging behind. There is most traction in those
law firms that are delivering largescale commoditised services, where automation is principally all about driving efficiencies. For instance, chatbots, DIY law, robo-lawyers and triage tools are all becoming more common with a greater focus on the consumer experience. “Our research found that law firms face barriers to adoption of many lawtech solutions that are fundamental to the industry, such as risks around compliance, the partnership and billable hours models,” Christina Blacklaws said. “After several years of start-up activity, the sector is now ripe for a wave of consolidation and later stage funding. Adopting and pioneering new technologies will give firms a strong competitive advantage in a rapidly evolving legal services market.”
Crucial government review signals reduction in hurdles to accessing everyday justice A move to ease some of the hurdles restricting access to justice for hundreds of thousands of people is a shift in the right direction, the Law Society said on 7 February 2019
detrimental impact on wider society. They have led to growing numbers of people representing themselves in court and increased pressure on wider public services.
Responding to the government’s crucial post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), Law Society president Christina Blacklaws said:
“The Law Society contributed heavily to the Ministry of Justice’s evidence gathering process ahead of the publication of this vitally important review.
“This post-implementation evaluation is long-awaited and comprehensive and represents the first time in over twenty years that we have seen wide-ranging government proposals to improve the system rather than to make further cuts.
“The proposals reflect a considerable number of the recommendations we put forward. The Ministry has accepted the case for changes in relation to the legal aid means test, exceptional case funding and early legal advice, and has committed to further work as to what those changes should look like. There are also to be specific changes immediately in relation to migrant children, special guardianship orders and the telephone gateway for discrimination, debt and special educational needs. There is much to be welcomed.”
“This review is important because legal aid is crucial to ensure that the protection of the rule of law is a reality for all and provides a lifeline for the vulnerable with social welfare law problems. “Successive governments have restricted access to justice and the most severe constraints were implemented in April 2013 when - as part of the LASPO reforms - hundreds of thousands of people became ineligible for legal aid. The sweeping cuts have had a
Christina added: “We hope these changes will make it easier for ordinary people to qualify for legal aid and access essential help and support.
“However, welcome as this further work is, the government must give urgent attention to amending the means test thresholds because the current levels are preventing families in poverty from accessing justice; and remuneration rates for solicitors undertaking this vital work must be reviewed for civil as well as criminal work, to address the medium term viability of the system. As a first step, they should be uprated in line with inflation ahead of further work to make the system sustainable.” Christina Blacklaws said: “If people cannot access advice or protect their rights, then effectively those rights do not exist. The proposed plan signals hope that fewer people will be denied justice simply because they cannot afford it.
“We support the government’s proposal to improve access to justice through better use of technology. The proposed technology fund indicates a recognition that securing commercial funding for access to justice solutions continues to be challenging. “We look forward to working with the government as they put these proposals into action.”
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New Midlands group aims to encourage women to stay in the legal profession amid retention fears From left: Janine Smith, Head of CPS East Midlands; Mrs Justice Carr DBE; Katy Thorne QC, Doughty Street Chambers and Founder of WICL; Michelle Heeley QC, No5 Barristers’ Chambers and Mary Prior QC of The 36 Group.
A new group has been launched in the Midlands to support women who work in the criminal law as concerns grow over the number of women who are leaving the profession. Women in Criminal Law (WICL), the brainchild of Katy Thorne QC, a criminal barrister based in London, was launched in London last year, with the new Midland branch now under way. Its aim is to encourage and empower working women across the criminal justice system and help break down barriers to their success by providing advice, training, mentoring and support. Michelle Heeley QC, of No5 Barristers’ Chambers Birmingham office and Mary Prior QC, of The 36 Group, helped to form the Midlands Branch of the group, again to provide support for women at all levels of the profession and to encourage retention. The organisation is open to all women who work in the criminal law, from paralegals and Chartered Legal Executives to the senior judiciary, from caseworkers to barristers’ clerks. Barristers and solicitors make up a large part of the membership and come from both prosecution and defence sides of the profession, and work in the publicly and privately-funded sectors. Lady Justice Hallett is the patron and the founder members include the former DPP Alison Saunders, Mrs Justice Cheema, former CBA Chair, Angela Rafferty QC and the Senior District Judge of England and Wales, Emma Arbuthnot. Katy said: “The response to the launch of WICL has been extraordinary. We are delighted that women are joining in droves, wanting to smash through the glass ceiling. It is fantastic that the Midland Circuit is forming its own group and women in the Midlands will be supported and encouraged to succeed.” Michelle said: “We are facing a genuine brain drain and questions are being raised about the current state of diversity in the legal profession. Many of my contemporaries have simply given up the Bar, some retraining as teachers, others going in-house. We are losing a huge pool of talent, and sadly it is almost exclusively female. If we want to achieve parity in the upper echelons of the profession, then something needs to be done. “Regrettably, the problem seems to arise post 10 years’ call - it is a time of marriage and considering having children, and sadly the criminal Bar is very difficult to juggle with the demands of family life. “There are some excellent employers out there, such as the CPS, who really promote flexible working, and we hope that this initiative will see other firms taking on board the positive approach the CPS has made to ensure they retain their employees. “The unpredictable nature of the work makes planning home and work life very difficult. Working part-time is extremely hard because, if one wants to progress, one has to undertake longer, more complex cases, which one simply cannot do if only working three days a week.”
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Michelle said many women faced real challenges throughout their careers, particularly at the criminal Bar. She added: “Ultimately, it is in everyone’s interests to promote diversity at the Bar. It can be difficult, but with support from others, and a good working relationship with your clerks, it is possible. “Although part-time working in the conventional sense may not work, you could ask to do two weeks on, then one week off – and work with your clerk to accommodate home and professional life. Speaking to court listing officers may also help, as you could assist in work planning. And don’t be afraid to ask for help, it is not a sign of weakness to ask friends and family for support.” Last night’s Nottingham launch saw speeches from Mrs Justice Carr, Janine Smith – Head of East Midlands CPS, and Katy Thorne QC, all were inspiring and encouraged professional support and networking amongst the WICL members. No5 Barristers’ Chambers is also undertaking other initiatives to try to stop this ‘brain drain’ including the Midlands Women’s Forum, set up by Esther Gamble, which aims to provide professional support and mentoring.
to follow what is said by the
p.1 prosecution witnesses and, if
represented, to explain to his own lawyers his version of events, point out any statements with which he disagrees and make them aware of any facts which should be put forward in his defence”: SC v UK (2005) 40 EHRR 10, at paras 28 and 29. Effective participation will mean different things to different lay people using our courts. But it ought to encompass these three aspects: Understanding the key processes involved in, and the purpose of, a hearing; recognition by professional court users of the presence of the lay user in the process and acknowledgment of their status as parties, witnesses, jurors, friends and relatives or other participants; and perhaps most importantly, taking part in hearing processes, according to their status, and, through doing so, making a real contribution to the hearing and its eventual outcome. All lay users, at whatever kind of hearing, will feel better involved if they are able to understand what is going on. Comprehending the order of the hearing, the roles of respective professional and lay users, the terminology used and where they fit into that process undoubtedly empowers lay users, particularly those who need to take an active role in the proceedings. The starting point for Understanding Courts, which is the culmination of a year’s working party of experts from across the legal jurisdictions chaired by Sir Nicholas Blake, is the mounting evidence that lay people are not effectively participating in proceedings. We all know that there are increasing numbers of litigants in person in our courts, alongside jurisdictions where lay people have always had to manage alone if they cannot afford lawyers. The tribunals were set up for unrepresented people to resolve their disputes and most operate without lawyers in a significant number of proceedings. While there are many efforts underway to help lay people to navigate their cases, these are piecemeal, and lack signposting. Moreover, for all the lay people represented, there is ample empirical evidence that many cannot follow proceedings and often do not understand the outcome. Over the year, the JUSTICE working party took evidence from a broad range of organisations and professionals working in the justice system to understand why communication is failing, where
the best practice is, and what initiatives are being developed. Courts and tribunals are arenas in which the public resolve legal disputes. The report therefore seeks to place the lay user at the heart of the justice system – across all courts and tribunals – so that these are places not simply where legal professionals work but where the public can participate effectively in the resolution of their legal problems and feel that they have fully received access to justice. Our recommendations focus on what effective participation should mean in practice: lay people informed about what will happen at their hearing through advance information provided in different modes; court professionals recognising that lay people should be their primary focus and adapting their approach accordingly; case management that checks for and assists understanding; the avoidance of legal jargon and confusing modes of address for plain English alternatives; change in culture that can exclude lay people; appropriate adaptations to enable participation for children and those with disability; and support for all users who need it. The HMCTS reform programme provides a timely opportunity to review the quality of service that our courts and tribunals provide for the public using them. Our report recommends that HMCTS “online” should be the first port of call for any information about the legal system. Lay people should be able to type “Going to court” into a web browser and find credible, centralised and easy to navigate information and videos for each jurisdiction and each kind of court user. From here, HMCTS should signpost out to the NGOs, such as Advicenow and Citizens Advice that provide helpful information and tools for litigating. At court, leaflets and video screens should replicate that information, and reception should be staffed by friendly and knowledgeable people who can tell you where to go. HMCTS understands this problem and we are working with its teams across digital, court and jurisdiction-specific projects to improve the information that is available. Legal professionals have an equally important role to play in improving accessibility to proceedings. The language and processes used in courts can still be ancient and alienating. We speak across benches to our “friends,” learned or otherwise, to judges who may be “Madam”, “Your Honour” or “Your Ladyship” for reasons that
are not immediately obvious. We sit in particular places and stand at particular moments that are assumed to be standard. We are trained to cross-examine witnesses in order to undermine their credibility rather than reach the best evidence. The report calls for a judiciary-led consultation among the profession to ask whether these archaic practices continue to serve a useful purpose when set against any alienating impact they may have. It recommends simpler and clearer modes of address be used. It also recommends that the approach of lawyers and judges is adapted to be better aware of lay users – through an updated overriding objective in civil, criminal and family proceedings (it is already a feature of tribunal proceedings) that professionals should have as a primary consideration the effective participation of lay users. In other words, that professionals adapt proceedings to ensure lay users comprehend the process. To achieve this, training needs to place far more focus on the experience of lay people, with professionals putting themselves in the shoes of lay people – something that is already done really well in some courts and tribunals, and through vulnerable witness handling training, but needs to be expanded. More active case management and use of procedural checklists would identify what is appropriate in each case. These recommendations are aimed at Government, which we consider should provide far more support to lay users so as to empower them to be able to effectively participate in legal proceedings. They are also aimed at legal professionals who, by taking more time to consider the impact of proceedings upon clients, opponents’ clients and the other lay people involved in hearings, can make small changes to big effect in their approach to conducting cases. As the title of the report implies, a two way process is required: lay users need to understand what is happening in court and courts need to understand why the position of lay users, especially the unrepresented and vulnerable, needs thoughtful consideration and adjustment of practise. Jodie Blackstock Legal Director, JUSTICE
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people also revealed an p.1 alarmingly widespread belief that justice favours the wealthy. The survey found that sixty per cent of respondents agreed that ‘people on low incomes are more likely to be convicted of crimes than wealthy people’. It is frightening to think that people accused of crimes have a diminishing chance of a fair trial and victims have a reduced chance of seeing justice as the criminal justice system slides further into crisis due to years of underfunding. Of equal concern is the fact that the reputation of our justice system - one of England and Wales’ most precious assets - is in great danger at a time when the country needs it most. The fabric of society is built around legal rights and obligations. Surely, this is what British values are based on. By allowing our criminal justice system to crumble like this, we are disregarding and undermining centuries of progress. Last September, just a few months after the Justice Select Committee called for a wider review of criminal legal aid, Supreme Court Justice Lord Wilson addressed an audience at an Ivy League university in the United States, stating that “…access to justice is under threat in the UK. Our lower courts are now full of litigants who have to represent themselves, often of course very ineptly”. Criminal legal aid lawyers - solicitors and barristers – ensure that anyone accused of wrongdoing has a fair trial. A stable supplier base of defence lawyers to safeguard the rights of the vulnerable and to protect the reputation of our legal system is essential. Yet, rates for criminal legal aid work are now so low, young lawyers no longer see a viable career in this specialism. A Law Society heat map published last year shows that there are counties in England and Wales where there are now no criminal duty solicitors under the age of thirty five. On a growing number of individual duty schemes, there are no lawyers under fifty years old. If this trend is not changed, the government will soon find itself unable to meet its statutory obligation to provide criminal legal aid services to those who need them in the interests of justice. For more than a decade, justice has stomached the deepest cuts of any government departmental spending. Some criminal law firms are being selective about which cases they take on, in order to remain financially viable. The argument for reasonable payment for this challenging work has never been more clear-cut. Media coverage of the crisis has gradually increased across national and regional print and broadcast outlets and public understanding of the issue has no-doubt been aided by The Secret Barrister’s compelling portrayal of a crumbling system paralysed by
policies and budget cuts. The Law Society and Bar Council have been unrelenting in their efforts to draw attention to the impact of cuts on access to justice. At the beginning of the year – ahead of the government spending review - the Law Society launched a campaign calling on the government to address the problems in the criminal justice system by adopting a series of policy recommendations on criminal justice. Put simply, we’re asking the government to invest more money to help resolve criminal justice issues. Justice and the rule of law are key exports for the UK - but their integrity depends on the whole system working effectively. Years of underinvestment have meant the system is facing an avalanche of problems which have brought the criminal justice system to absolute breaking point, including: •
An increasing shortage of criminal duty solicitors who provide defence representation to the poorest and most vulnerable in society when they are accused of a crime Swathes of court closures which are impacting urban and rural communities and putting obstacles in the way of victims and witnesses and costing the taxpayer money as people fail to attend distant hearings, or are ferried by taxi Impassable barriers to accessing legal aid for those unable to afford a solicitor Victims and witnesses having to attend court repeatedly because of trials being adjourned again and again Solicitors firms which provide legal aid services finding themselves in an increasingly unstainable economic situation Those accused of a crime being held on remand far longer than necessary because of inefficiencies in the system at great public expense Defendants on low incomes forced to pay fees or contributions they can’t afford due to the overly stringent means test – thus
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threatening their right to legal advice and representation Failures to disclose crucial material from criminal investigations mean victims can be unintentionally misled as to who really committed a crime.
In fact, in July last year the House of Commons Justice Committee concluded that disclosure failures have been widely acknowledged for many years but have gone unresolved, in part, because of insufficient focus and leadership by ministers and senior officials. This was not aided by data collected by the Crown Prosecution Service which might have underestimated the number of cases which were stopped with disclosure errors by around ninety per cent. The government must act to restore confidence in a battered system. In December, the government laid legislation in parliament to spend an additional £23m on criminal defence advocacy fees and we were encouraged by the Ministry of Justice’s (MoJ) announcement that it will conduct a ‘fundamental review’ of criminal legal aid payment schemes, including considering criminal legal aid throughout the ‘life cycle’ of a criminal case. We are calling on the MoJ to undertake an independent analysis of what is required to ensure the market is economically sustainable. Remuneration rates need urgent attention and means testing thresholds should be uprated. While a thorough, independent review of the long-term viability of the criminal legal aid system is long overdue, the timeframe of late 2020 for this fundamental rethink is far from ideal. Immediate action is needed. We are facing a crisis today. By Richard Miller, Law Society Head of Justice
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Striving for an Inclusive Legal Services Sector The discussions regarding the possibility of merging the two major legal professionals, Barristers and Solicitors, into one, have been going on for decades. We all know by now, this will never happen. There are too many interests to protect and so much regulation that we now find ourselves in a situation where there is no turning back. By Amanda Hamilton, NALP
t used to be that Barristers had the monopoly on advocacy skills. This was what made them who they were as professionals. This, plus an uncanny ability to grasp what a case was about, and the legal principles involved just from reading a solicitor’s brief, gave them their identity. This wasn’t something that could be taught, it had to be an innate ability with which an individual was born. Ask any of the ‘old school’ barristers and they will tell you. To be a successful solicitor, similarly, required certain other skills, not least of which was a need and vocation to offer a service to your clients, with whom you had empathy.
And there was a time when if you were entering the legal profession, you knew which of the two was most suitable for your skills and talents. You either chose one pathway or the other. These days, with Solicitors able to become solicitoradvocates and barristers being able to register as direct access and being granted the right to conduct litigation, one could argue that there is virtually no difference anymore between the two professions – except, of course, that each has its own professional membership and regulatory body to protect their members’ interests. In recent decades, we have gone terribly wrong somewhere. The profession has got confused about what its function is. Our duty is to the prospective client, or the ‘consumer’ as we now tend categorise them, rather than to internalise everything for the betterment of our own profession, or to increase our profit margins and commercialise what we do. The changes I mention above have been implemented by the profession itself. From franchising the professional qualifications, to the virtual eradication of legal aid. The profession has placed itself in jeopardy. The consequence of increasing numbers of institutions able to offer the professional qualifications has caused irrevocable damage to the lives of graduates who have been misled into thinking that their career pathways would be mapped out, just because they have completed an LLB or LPC. In fact, this is most definitely not the case for most, because there are simply not enough training contracts or pupillages to go around. Is it any wonder that there is a new underground profession rising from the ranks of this disappointed group of individuals? Now emerging as the fastest growing legal service professionals are paralegals. The work that paralegals do, offers a lifeline into a sector that disappointed graduates may not otherwise be able to enter into. The slack left by the virtual eradication of legal aid is being filled by paralegals and offers a lifeline to consumers. And yet, there still remains a reluctance (or is it fear?) on the part of the regulated professions to recognise paralegals as independent
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professionals in their own right, when all that paralegals are trying to do is to fill the gaps left as a consequence of decisions made by the traditional professions. We are yet to see if the new SQE (Solicitors’ Qualifying Exams) will make any significant change in practice to the lives of those wishing to enter the profession. There are also further discussions at high levels about the future of legal aid. But, the damage has already been done, and it may take a long while to see the consequence of any of these changes. This article is a call to action: please understand that paralegals do not wish to undermine the work that barristers and solicitors do nor the services that they offer. Paralegals do not wish to take over the legal services sector, but merely wish to complement what is already there. Let’s work together in a spirit of co-operation and understanding if not for your own benefit, then for the benefit of all consumers.
About the author
Amanda Hamilton is Chief Executive of the National Association of Licenced Paralegals (NALP), a non-profit Membership Body and the only Paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England). Through its training arm, NALP Training, trading as National Paralegal College, accredited recognised professional paralegal qualifications are offered for a career as a paralegal professional. See: http://www.nationalparalegals.co.uk and https://www. nalptraining.co.uk/ Twitter: @NALP_UK Facebook: https://www.facebook.com/ NationalAssocationsofLicensedParalegals/ LinkedIn - https://www.linkedin.com/in/amanda-hamiltonllb-hons-840a6a16/
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European Arrest Warrants in 2019: here today, gone tomorrow? By Diana Czugler, Business Crime Team, Peters & Peters European Arrest Warrants and their ongoing role in cross-border law enforcement European Arrest Warrants (“EAWs”) are the home-grown tools for surrendering wanted suspects and convicted defendants between EU Member States using a streamlined and simplified judicial regime. For the first time, EAWs have made extradition widely available and easily accessible in all 28 EU countries; including for historic and relatively minor offences. EAWs, which replaced previous extradition arrangements within the EU, have been much criticised due to the drastic impact they can have on individuals’ lives. EAWs, are highly disruptive by nature, as they warrant the apprehension and arrest of requested persons, ordinarily followed by a period of detention, pending the making of a surrender decision. Should the requested person decide not to voluntarily consent to surrendering to the issuing judicial authority (“IJA”), their detention could be extended for many months , whilst the relevant domestic court executing the EAW makes a substantive decision on surrender. What makes EAWs particularly powerful is that – unlike other extradition systems– they are executed swiftly and in a uniform manner across all Member States, leaving little room for resistance and challenge. While there are statutory bars in place in UK domestic legislation, to ensure that EAWs are only enforced in circumstances where a charging decision has already been made, in practice, requested persons are at risk of spending a significant amount of time in pre-trial detention in a country that they may well have no ties with following surrender. Not only are EAWs denounced for being issued prematurely, they have also widely drawn criticism for being used by certain Member States to pursue minor offences, such as piglet rustling or the theft of a wheelbarrow !
Alternative investigative instruments currently available to Member States Over the last few years, the toolkit available to investigatory and prosecutorial authorities across Member States has been extended to include first European Supervision Orders (“ESOs”), followed by European Investigation Orders (“EIOs”). ESOs, known as “eurobail”, allow for the imposition of supervision measures as an alternative to pre-trial detention whilst defendants can remain in their country of residence. ESOs, although
EIOs may reduce the reliance requesting Member States had historically placed on EAWs. The latest version of the European Commission’s handbook on EAWs even explicitly advises IJAs to give due consideration to other possible less draconian measures as “in some situations these measures might be more appropriate than the EAW” . However, regardless of their perceived advantages, the uptake of both EIOs and ESOs has been lower than anticipated. So why do IJAs still revert to what is conceivably the most severe weapon in their arsenal? Why are EAWs continued over less Draconian alternatives?
not suitable in all cases, therefore represent a less coercive option than EAWs. Accordingly; the UK’s IJAs have been encouraged to make use of them. By comparison, EIOs – which replace the previous pan-EU mutual legal assistance (“MLA”) regime and offer a streamlined system for investigative and evidence gathering across Member States – are a newer instrument and have only been available for the last few years . It has been envisaged that EIOs may be the appropriate tool to utilise in circumstances where an EAW would be too premature. At the time of their introduction, it was anticipated that ESOs and
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Possibly, the answer is straightforward and lies within the human psyche. EAWs introduced a robust, unified system for the transfer of wanted persons which replaced the previous, often lengthy extradition procedure. Simply put, EAWs are popular because they are easy to issue and simple to execute; hence, they have arguably become the default option without due consideration being given to alternatives. If this is indeed the explanation for the underutilisation of ESOs and EIOs, then a cultural shift will be required so that Member States no longer resort to EAWs as the automatic
option. However, do EIOs and ESOs really offer a viable alternative? They cannot be used to secure the return of accused persons to the jurisdiction where they are or were prosecuted but rather are tools to be deployed whilst the investigation is ongoing, either to obtain further evidence or to bail the accused in their country of residence. EAWs form part of a single “wanted alert” system whereby the issue of one EAW is received and recognised by all Member States at the same time, resulting in an EUwide arrest warrant being circulated for the requested person. This can be useful where a suspect is at large, with their current location unknown, or on the move. In comparison, EIOs are primarily an investigative
tool that enable the gathering and preserving of evidence such as documentary records and banking information. Whilst ESOs do offer supervision measures, it may well be that IJAs prefer extradition rather than allowing suspects to remain in their home country and risk them absconding or otherwise interfering with the process. In addition, ESOs require a degree of co-operation from suspects. Challenging EAWs under UK law and recent judicial decisions A requested person wishing to challenge an EAW in the UK courts on the basis that alternative measures such as EIOs and ESOs should have been deployed instead should consider whether it can be argued that the use of an EAW by the issuing judicial authority is (i) premature, (ii) disproportionate, and/ or (iii) coercive. If so, the question is then whether this provides a sufficient legal basis for the court to bar extradition. Specifically, section 12A of the Extradition Act 2003 (“the Act”) bars a person’s extradition if the competent authorities of the executing Member State have not made a decision to charge or a decision to try, and if the person’s absence from the issuing Member State is not the sole reason for that failure. The question, therefore, is whether the proceedings in the issuing Member State are sufficiently advanced to justify extradition. In addition, section 21A(3)(c) of the Act requires the judge, in all accusation cases, to decide, inter alia, whether extradition would be disproportionate. Lastly, the Act also contains a specific provision for the issuing judicial authority to pursue MLA alongside or instead of extradition, including prison transfer arrangements, under section 21B. EAWs have been repeatedly challenged before the UK courts on the basis that the relevant IJA should have requested a form of MLA instead of issuing an EAW and/ or the EAW was issued prematurely. Initially, these arguments were met with some judicial sympathy; reflecting the difficulty that some civil law jurisdictions, such as Germany and Spain, have in translating the British legal concept of a “decision to charge” where their criminal procedure is fundamentally different,
with decisions being made in different form and at different stages of the legal process5 . However, the recent domestic case of Puceviciene v Lithuanian Judicial Authority6 has firmly established that the fact that a requesting State did not evoke, or even consider, MLA measures prior to issuing an EAW cannot form a judicial bar to extraditing individuals accused of criminal misconduct. The Court in Puceviciene ruled that the proportionality bar under section 21A(3)(c) of the Act did not extend to the use of less coercive MLA instruments during pre-trial proceedings. Since Puceviciene, various other domestic judgments have confirmed that the prison transfer provisions contained in section 21B of the Act also fall outside of the proportionality bar’s scope. What does the future hold for European mutual legal assistance? It has been firmly established under UK case law that the fact that an IJA had not used MLA or other mutual recognition measures will not be fatal to an EAW. Whilst there have been no reported cases at the date of this article on the interaction between EAWs and EIOs, and the handful of reported cases on ESOs are now a few years old8 , it is assumed that UK courts will adopt the same approach when considering challenges to EAWs in this context. The numbers show that EAWs remain as popular with investigatory authorities as they have ever been. During the financial year 2017/18, the UK received 17,256 EAW requests (resulting in 1,027 surrenders) and it sent 296 requests to other Member States (with 181 surrenders being recorded)9. These numbers represent a steady rise over previous annual figures, signifying that EAWs would be here to stay, were it not for the UK’s pending exit from the EU. Whilst it remains to be seen what shape the UK’s relationship with the EU will take in the sphere of judicial co-operation in criminal matters following Brexit, EU negotiators have unambiguously stated that the UK cannot remain part of the EAW regime unless it is willing to accept the Court of Justice’s jurisdiction – a concession the British government
does not appear prepared to make. What will happen during the transition period depends on the circumstances under which the UK will leave the EU. The now seemingly abandoned Withdrawal Agreement contained express provisions for the continued applicability of the EIO and EAW regimes (albeit introducing an opt-out to EAWs, by allowing other Member States to refuse to surrender their own nationals to Britain), whilst the accompanying Political Declaration envisaged an “ambitious, broad, deep and flexible partnership” in the field of criminal justice and security after the end of the transition period. Therefore, notwithstanding how exactly Brexit will play out, both EAWs and other forms of EU-wide mutual recognition measures appear to be on their way out – although only as far as the UK is concerned. ---------------------1 The time limit on the final decision on the execution of EAWs is set at 60 days after the day of arrest, pursuant to Article 17(3) of the EAW Framework Decision. However, this timeframe has not been transposed to the Extradition Act 2003 and it is seldom complied with in the UK. 2 See p.9 of the Home Affairs Committee’s Ninth Report of Session 2013 – 2014 at https://publications. parliament.uk/pa/cm201314/ cmselect/cmhaff/615/615.pdf#page=9 3
4 Commission Notice of 28.9.2017, C(2017) 6389 Final 5 E.g. Kandola v Germany  EWHC 619 (Admin) 6
 EWHC 1862 (Admin)
Dabrowski v Poland  EWHC 179 (Admin) and Sutas v Lithuania  EWHC 156 (Admin) 7
8 Duncan v Spain  EWHC 3466 (Admin) and Ahmed v Germany  EWHC 400 (Admin) 9 http://www.nationalcrimeagency. gov.uk/publications/european-arrestwarrant-statistics
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So you need a Digital Forensic Expert? By Dr David Schudel, Senior Manager, Keith Borer Consultants
s digital devices continue to embed themselves in modern life, the amount of evidence that can be gleaned from them grows at an alarming rate. Commonplace is digital evidence from mobile phones, tablets and computers, but useful evidence is emerging from the cloud, vehicle infotainment systems, vehicle trackers, drones that store or relay location data, and ‘the internet of things’ which can include evidence from a doorbell or smoke detector. When instructing an expert in these areas, there are certain preparations you can make to simplify getting the help you need. 1 Understanding which expert you need It may be worth a quick call to see what expert you need. A mobile phone case might need two different experts – one to look at cell site records and one to look at the download of messages from the mobile phone. A collision investigation report might require a digital expert to interpret GPS data and a Road Traffic Accident (RTA) expert to consider data from a black box recorder. 2 Limitations of the evidence A mobile phone is not a computer. It is relatively straightforward to make a verifiable, entire, exact copy of a computer hard drive, for analysis. With mobile phones, a download may not be a copy of everything that is on the phone. How an examination proceeds can vary, depending on the issues, but may include re-examination of the phone with different software or using specialist equipment to remove data directly from the chip on the circuit board. Not all of the material on the
phone is necessarily captured and it is critical to know what the question is in order to target the analysis. Cell site evidence has a number of shared limitations, the most significant being that it can never pinpoint a mobile phone, only tell you the general area it was in at a given time. Be wary of any claims of a person being in a specific place based on cell site evidence. Furthermore, be aware that any cell site evidence referring to “data” records or “GPRS” have to be interpreted differently to texts and calls and, if wrongly interpreted, can give misleading information. 3 Timeframes One of the biggest challenges is timeframes. Good digital experts have calendars filled up for weeks in advance. Coming to an expert two weeks before a trial with material the Crown spent six months putting together is unlikely to lead to a useful independent review unless you have very specific issues in mind. In this regard, focussing instructions will go a long way to ensure you find an expert available to get the work done in time. Examples that can make a big differences include narrowing down the number of phones to consider, reducing the range of dates to look at, or limiting the quantity or type of images to search for. 4 Having the material available Often getting digital evidence in a form the expert can use can take weeks of toing and froing with CPS or Police, despite the fact the Crown’s expert has been able to use these materials to prepare their reports. Examples are: •
Being given reports from forensic software as opposed to a copy of
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the raw data Not being provided with all of the material as it is “sensitive” Being provided with a PDF version of call data records and not original Excel spreadsheets of the data Being provided with Excel spreadsheets of data that have been manipulated by the Police into a different format, sometimes resulting in loss of data Getting PDF images that are low resolution copies rather than copies of the original JPEG images
The way forward: If you expect to be instructing a digital forensic expert, it is worth asking early on in the case what material the expert is likely to need so that, when approval to proceed comes in, they are already in a good place to start. The experts at Keith Borer Consultants are happy to guide you on what materials and timescales are required and also consider alternative ways of addressing the issues in the case. For example, with high volume cases (tens or hundreds of thousands of messages or images), we may be able to assist in narrowing the issues or finding ways to review such a volume in a reasonable time. We can also look at bespoke solutions which may be critical when comparing the information in a witness account with how an app or system might have behaved in those circumstances.
For more information, please contact Dr David Schudel on 0191 332 4999 or email firstname.lastname@example.org.
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CILEx sets out policy agenda for 2019 By Phil Sherwood, president of CILEx
n 2019, the Chartered Institute of Legal Executives (CILEx) will be working hard to ensure the voice of its membership is heard by policy makers. In January we announced our policy priorities for the year which include moving justice up the political agenda, lobbying for improvements in access to justice and for the reinstatement of Legal Aid spend. We will also be demanding that the legal framework recognises that Chartered Legal Executives operate on a par with solicitors and are part of the solution to many current systemic problems. Chartered Legal Executives and solicitors have been performing the same roles for decades, but their public standing, and many areas of our legal system, are yet to catch up with that reality. This year we will be lobbying for change. In some cases these are changes we have been lobbying on for some time. In 2019 we will be urging ministers to stop stalling and act now. Move justice higher up the political agenda During Justice Week last year, we learned that the public think justice is as important as health and education. A survey undertaken by CILEx alongside the Law Society and Bar Council found that only 20% questioned thought there was sufficient funding in place for those who needed legal advice. There was also an alarmingly widespread belief that justice favours the wealthy. We have seen justice suffer more cuts and underinvestment than most areas of public spending in recent years. In 2019, CILEx will work to ensure justice has a central place in policy making, giving a meaningful voice to victims, protecting rights where they are threatened, and re-investing in the national treasure that is our justice system.
in recognition of the crisis faced by thousands unable to gain legal support. The delayed LASPO review must recognise the importance of a healthy and dynamic legal services market, of both generalists and specialists, as part of the solution. CILEx professionals are one way the state can deliver quality support and CILEx are looking to the government to recognise this in the upcoming spending review. Diversity in the judiciary The judiciary struggles to reflect the society it serves, with considerable underrepresentation of women and ethnic minorities. The slow pace of change is partly down to the professional snobbery still prevalent among many in senior positions. A blinkered reliance on recruiting in their own image; from select schools, universities, and backgrounds still persists. These outdated views are preventing the Government from making a quick and easy change that has long been staring them in the face, namely, updating the eligibility criteria for lawyers who can submit applications for judicial roles to include Chartered Legal Executives. The rules currently exclude the most diverse group of lawyers in the country from being eligible to even apply for senior judicial roles. 75% of CILEx members are women and 14% are from a BAME
Legal Aid CILEx will continue to campaign for access to justice and for a reinstatement in Legal Aid spend
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background. 81.5% of members do not have parents who went to university and just 6% attended a private school. Despite being educated to the same standard, doing the same job, and otherwise having all of the same opportunities as their solicitor counterparts, they are prevented from applying for roles above district judge level (circuit judge or higher). In the ten years since Chartered Legal Executives first became eligible for junior judicial roles, two-thirds of the appointment rounds run by the Judicial Appointments Commission have been for roles they are not eligible for. This constant exclusion has been a drum beat, a clear message, that they are not wanted in the judiciary. If government means what it says when talking about a representative judiciary, there is one quick fix that costs nothing but sends a loud message â&#x20AC;&#x201C; give Chartered Legal Executive lawyers the opportunity to throw their hat in the ring and be considered alongside everyone else. Post-Brexit recognition Despite the significant lobbying of successive governments, unlike other lawyers Chartered Legal Executives are unrecognised in the EU Lawyer Recognition Directive. This unreasonably restricts their ability to offer services to other EU countries. It has prevented solicitor firms, the largest employers of Chartered Legal Executives, from deploying their
staff efficiently, as well as denying consumers a full choice of providers. This discrepancy is outdated and CILEx is asking that, when settling postBrexit arrangements, Chartered Legal Executives be properly recognised as lawyers alongside their solicitor and barrister counterparts in any future trade agreement with the EU, mirroring domestic parity. Changing out of date laws We want to see a change to laws that preclude CILEx from the provision of certain services. CILEx lawyers have a key role to play in making justice accessible but are unreasonably precluded from providing certain services. They do the same work as their solicitor counterparts, but, for example, cannot prove a Power of Attorney by means of a certified copy. This is due to out of date laws that have remained unchanged since the seventies. This is both impractical and in discord with the recognised parity of Chartered Legal Executives under the Legal Services Act 2007. The Ministry of Justice acknowledge that this is an anomaly that needs to be rectified but argue there is no parliamentary time available to amend the necessary legislation due to Brexit. CILEx will
continue to lobby for the change in 2019. Influencing apprenticeship policy CILEx provides a genuinely accessible and affordable path to a legal career. As the Governmentâ&#x20AC;&#x2122;s Trailblazer Apprenticeships policy matures, CILEx want to ensure that no new barriers are imposed and that apprenticeships facilitate access to the profession for people from all backgrounds. Taxpayersâ&#x20AC;&#x2122; money must be used effectively to develop professionals with the skills to meet the demands of the sector. Providing a reality check We will provide a reality check to Government on legislative reform. Reform of the law does not take place in a vacuum and as specialists in their fields, CILEx members practise at the coal face and can provide an expert view to government and parliament. Changes underway in leasehold, personal injury, no-fault divorce, and debt recovery work will benefit from the input of CILEx members. This year so far, after listening to the views of our membership, we have already submitted CILEx responses to six consultations including those on a
proposed new Housing Court and on Employment Law Hearings. It is vital that in the interests of a diverse, competitive and dynamic legal market that serves both the public and business, that our laws keep pace with changes to the profession. Competition requires a level playing field, and so we are committed to working in the public interest to remove any outdated restrictions that unjustly prevent Chartered Legal Executives from offering to consumers the full range of services they are capable of. The diversity of our membership, along with the technical specialism many of our members have, means CILEx has a unique perspective to offer policy makers. We hope that our efforts to get the voice of our members heard and our demands for change will lead to reform.
Phil Sherwood is president of CILEx.
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.
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New code of conduct set to be introduced as private prosecutions escalate By Jeremy Asher, Senior Associate at leading law firm, Ashfords LLP
new code of conduct for private prosecutions is set to be introduced as the trend for pursuing justice privately continue to rise.
At the end of 2017, the Private Prosecutors’ Association was formed with the aim of setting down a code of conduct for private prosecutors. A consultation on the draft proposals for the code of conduct was published on 21st January 2019, and the aim is for this to be agreed in March this year. Among the many benefits of bringing a private prosecution are control, speed and the ability to choose teams. There are also ways of recovering costs and, in some instances, private prosecutions can be more attractive than traditional civil litigation. Why are private prosecutions on the rise? The benefits mentioned above contrast with the frequent reports of problems in the police and Crown Prosecution Service. In January the outgoing Director of Public Prosecutions, Alison Saunders, admitted to “deep-rooted and systemic” disclosure issues following the acquittal of Liam Allan who had been wrongly prosecuted for rape. The case was widely reported, and several other cases with failings came to light leading to a full review of disclosure in all current rape trials. Other reports of failures in the prosecution of cases by the Police and CPS followed. In March, Humberside police were fined £130,000 for losing a disk containing evidence. In April the tactics used for preventing disclosure of evidence that might undermine the prosecution case were revealed and the CPS and Police were sharply criticised. Then it was exposed that the £450 million promised extra funding to address the fall in police resources between 2010 and 2017 was not guaranteed. As if that was not enough, in one month the Chief Prosecutor Nazir Afzal urged Alison Saunders to be honest about the pressure CPS staff were under. In June came the revelation that the Police were targeting University graduates to train them as detectives to help address the shortfall of 5,000 required nationally a 12-week long scheme was proposed, but analysis of the figures show with the funding offered it will take 20 years to bring the police back up to strength. Then some big private prosecutions made the news. The insurer DAS successfully prosecuted three of its
former directors, including its then CEO Paul Asplin, for a fraud worth £15 million, for which the defendants received 15 years imprisonment. A few weeks before, Paul Sultana was convicted of an £88 million fraud, for which he received eight years in prison. Again, a company had brought a private prosecution to seek justice. In both cases the police and CPS had refused to act so the victims, which were businesses, had to resort to private prosecutions. A theme had developed. In November 2018 Cressida Dick, the Metropolitan Police Commissioner, revealed her vision for policing: fraud was not mentioned. This followed on from other senior police officers explaining that their forces did not have sufficient resources to assist businesses that were the victims of fraud. These statements were backed up by the statistics that had come to light. The most startling were that in 2011 there were approximately 141,000 reports to Action Fraud, but that figure had grown to about 641,000 in 2016, yet between them the SFO, FCA, NCA and police prosecuted 26% less fraud cases than they did in 2011. It was also exposed that Action Fraud use an algorithm which rejects all cases where losses were below £100,000. However, the Office of the Immigration Service Commissioner has recently brought many successful prosecutions against individuals and businesses, including for fraud, with many cases generating national publicity: so, it can
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be done. So, what will happen in 2019? Well, the Police won’t be helping many businesses which are the victims of fraud. In November, I addressed a group of insurance funders who wanted to understand how private prosecutions worked. Perhaps some of them will have the foresight to develop policies tailor made to help bringing more private prosecutions by making them more affordable? Funders are used to claiming uplifts through Conditional Fee Arrangements in civil cases where lawyers are allowed to claim success fees, a funding mechanism that isn’t allowed in criminal law. It will take creative thinking to work out a funding solution attractive enough for funders to release funds to help open up access to justice. As for the future, couldn’t the insurance industry help? Wouldn’t it be great if they set up a scheme similar to the Motor Insurers Bureau, where victims of uninsured drivers can claim compensation? Imagine if a scheme existed for the victims of fraud, paid for out of premiums, funding private prosecutions where the Police are unable or unwilling to act. Wouldn’t such a scheme be a useful marketing tool, demonstrating that insurers are prepared to look after their members by helping to stamp out fraud? Food for thought.
If you would like more details, then please see our guide to private prosecutions or feel free email j.asher@ ashfords.co.uk
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Barristers - the do’s and don’ts of outsourcing By Maxine Park, Solicitor and Co-Founder of transcription and office support services provider, DictateNow
t would be fair to say that there is a generalisation that barristers are resistant to change.
barrister is placing health at risk in an article in 2017 following the Bar’s 2015 health survey.
However, generalisations can be sweeping, and can fail to address the bigger picture of change when it comes to barristers and with outsourcing that is certainly the case.
Of course, stress can be counteracted in many ways, but without going off message, it surely seems obvious that lessening workloads can only improve mental well-being.
Indeed, the whole legal profession is rooted in tradition, however in our modern, 24-7 fast-paced world, technology has impacted on a much more fluid world of work, and there are many barristers who are increasingly looking at more efficient ways of collaborating with others to lessen their workload.
So, outsourcing one of the most time consuming tasks in a barrister’s work is a very sensible place to start.
For that reason, outsourcing their transcription work is becoming something many barristers are investigating. Despite this though, the first tentative steps into delegating others to take this on can seem fraught with uncertainty. Hiring the wrong person or company may seem too big a risk when facing a formidable judge ready to explode at poorly put together legal documents allowing the incredibly precious commodity of court time to be wasted. This factor is probably the strongest reason why overworked barristers toil long into the night, often tapping away on two fingers to ensure they can escape the humiliation of being given a dressing down in a courtroom. Sadly though, it’s this not letting go, which is the reason why barristers are now experiencing levels of stress never seen before. Indeed, this very magazine presented an in-depth and worrying picture of how the stressful life of the modern
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The little time taken to initially do your homework in outsourcing transcription, is something which many with sufficiently large workloads will feel is well worth the time. It is, one of those simple to do things, which are vitally important, but seldom urgent. It is also more cost-effective utilising experienced legal secretaries whose hourly costs, needless to say, are a small fraction of a highly trained barrister’s rate. It needn’t be littered with danger either. After all, barristers need assurances and good businesses will give them this. After all, the legal world is particularly sensitive and dictation specialists, such as us have worked hard to attain ISO standards in confidentiality, security, quality and business continuity. We believe this is vital as there can be no room for error in such areas. Established dictation specialists, like ourselves at DictateNow should be able to present a compelling case after all, it is these outsourced firms who have taken on the learning curve, as we did when we started in the early part of the 2000s. For instance, employing qualified legal secretaries who have
specific areas of expertise in niche legal specialisms meaning they have extremely high levels of efficiency. Formatting, presentation, the correct layout for the right document, is something that should be expected. If a dictation outsourcer can’t give you these kind of assurances, then it’s time to move on. Of course, it is worth pointing out that legal secretaries are human and, of course, errors are made. Misinterpretation of words for instance happens, and examples are Walsall in the West Midlands being mistaken for Warsaw. However, these problems can be intercepted as good dictation specialists should have a quality assurance team who painstakingly pore over every document as soon as it is written. It is a part of a process that irons out almost all errors. Also, despite our country being a very cosmopolitan place, regional accents can still present difficulties. That is why we decided that it made sense to have people who understand accents. As much as possible we match dictation requirements with people who are familiar with that accent. For instance, a dictation from someone with a Scottish accent would be done by someone in our Glasgow team. Little things like this can make a difference. Barristers also need to be aware that turnaround from dictation specialists is quick. Once a standard document is transcribed it is checked and then can be back within an hour. Of course, it tends to take even the best legal secretary roughly three times the length of time it takes to dictate to
type, so it means it would take an hour long interview three hours to type up. However, for a barrister who has had a gruelling day of interviewing is that three hours spent better elsewhere than in front of a laptop? Good legal secretaries are also adept at handling multi voice conferences too. So long as it is made clear by the barrister who the various parties are, at the start of the interview, this is very straightforward. A vital point, which hasn’t been covered, is, of course, the very fact that dictation machines are not even needed today when conducting interviews. It can be done on a quality mobile phone, and, for instance, there are apps, which can be installed on mobiles, which makes the experience so much easier. This is especially worthy of comment as there are some barristers who still use analogue dictation machines. Whilst some barristers will be unwilling to change, there are some sufficiently fed up with the old way of doing things to explore a change. Maybe they need a little more convincing, or a demonstration, but once they see the benefits, we’re sure they will rue the wasted time of the old school ways. There are so many reasons why it makes sense to look at outsourcing for this particular component of a barrister’s life. It is one of those tasks that once you’ve done it, you will wish you had many moons ago.
Maxine Park, Solicitor and Co-Founder of transcription and office support services provider, DictateNow
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7 simple steps to growing your relationships with your most important law firms By Douglas McPherson, Director, Size 10½ Boot
lient development used to be the preserve of the corporate world but increasingly it is assuming its rightful place as one of the core components of a professional service firm’s business development plan. Law and accountancy firms have finally realised that selling more to someone who already likes/trusts/respects your brand is a much easier (and more cost-effective) prospect than constantly trying to win brand new clients. However, despite making huge steps forward in recent years (backed up by the strong and resilient relationships fostered and maintained by their clerks) barristers chambers still have some way to go when it comes to really embracing a client development culture. Many still seem content to rely on the existing ties between certain barristers and certain solicitors and the belief that simply doing a good job will guarantee repeat purchase. Now, I’m certainly not going to downplay the importance of doing a good job (it’s definitely the number one priority – no ifs/no buts!) or the crucial role client satisfaction plays in repeat purchase. My challenge would be if that solicitor is impressed with your work and your way of working suits them, how much more work you and your fellow members could be generating from their team and/or other other departments in the firm? The good news is you can take advantage of that potential simply by adopting this simple 7 step process.
1. Know who your most important clients are You probably have a pretty good feel as to which solicitors generate the highest and most frequent fee notes over the course of a year. However, some can easily slip between the cracks so always make sure you have an up to date summary of which solicitors and which firms contribute most to your practice. A simple 80/20 analysis will soon highlight which 20% of your clients make up 80% of your revenue and, by extension, the 20% of your clients that 80% of your business development
efforts should be focused on. It’s also important to note that financials aren’t the only yardstick against which to measure your clients when identifying targets. You should also be looking at: •
Opportunity: Which new firms have some to you over the last year who should, because of their specialisms and the type of clients they have, be doing more work with you? Which of your solicitors have much larger teams around them that you could tap into with the minimum of effort? Strategy: Which firms do you share specialisms or particular niches with? Similarly which have teams operating in legal areas you have targeted to grow?
2. Know about your most important clients Once you have identified your key clients, you need to find out about their structure, the size of their teams, their personnel and their leading practice areas so that you can start to identify who you need to get in front of and why. This may look like an onerous task but it’s one that can easily be outsourced to your clerks, marketing team or to an experienced external resource. It is however a task that will be crucial the success of your client development work because it will give you some much needed focus and direction in terms of who to contact with what message which will save you a lot of time, effort and probably budget in the long run. It will also help you see the size of the opportunity each firm presents in terms of how many other colleagues you could be introduced to, whether there are more offices to be introduced to and whether there are other teams within the firm who could be using other barristers within chambers who specialise in these additional practice areas. To aid this part of the process – and to find out more about exactly what those clients want from you in terms of
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added value, delivery, fee processes and client service – many of the chambers we work with are now commissioning us to deliver client service review programmes where we interview their main instructing solicitors. This helps us not only identify what it is that those clients really value (so that chambers can do more of it to cement that relationship) but also concrete follow up steps – requested by the client – those clerks or barristers closest to the client can use to kick-start a more formal client development programme. 3. Have a plan Once you know which clients you want to focus on and what opportunities each offers, you will need a plan. Again this isn’t about creating an overly involved 6 inch thick document that will just take up valuable time before sitting in a drawer gathering dust. It’s about having a simple timeline of what you want to do and when with each of the firm’s you would like to develop and who from chambers will be involved with each initiative. We have always found the closer your plan is to a single page, the more successful it will be. In fact we have recently designed a template that is simply a page divided into four (with each box representing a quarter of the year) in which you can scribble the name of the firm you’ll see and the type of contact you’ll have in that quarter. These really do take minutes to complete and are very simple to follow. 4. Have a target It’s an age old cliché but what is measured really does get done. Once you have your plan, have actual targets to work to so you can make sure you are making the progress you want to. In the first year these should be performance based targets rather than financial ones as new work from new solicitors within the firms you’ve targeted is not likely to be immediate. Instead set yourself achievable goals for each firm. Task yourself with hosting one training event with each, to inviting them to play pool/table tennis/darts
and eat pizza with your wider team and theirs, make sure the people at each firm that you want to get to know are invited to your Christmas drinks as well as the people you already know.
project) is to take a leaf out of Nike’s book and just do it!
This ability to alternate formal interaction with more social events will be crucial to your success. The formal events (training, seminars, conferences, round tables) will allow you to underline your technical legal skills and understanding of the relevant legal issues. The social gives you the chance to show the person behind the wig and gown and make a more personal connection.
The pivotal component of any client development strategy is ensuring you add value to the relationships you have targeted.
This is the point where I am usually challenged with “but the only thing that matters is whether I’m a good lawyer”. It’s the most important factor of course but there are a lot of barristers in a lot of chambers who do exactly what you do so you will increase the odds of instruction if you can answer the questions “can they do the work?” and “can I work with them?” rather than just “can they do the work?”
5. Implement your plan This will be by far the shortest explanation of any of the steps. It may be common sense but if those involved aren’t committed to each development plan and find reasons not to complete their individual actions, all of the time and effort you have invested will be wasted. The most direct route to success with client development (and in fact any business development or marketing
6. Be prepared to add value
You need to uncover what it is that each client really values and that may be training, it may be introductions to other experts in your field, it may be simply that they know you’re at the other end of the phone when they need to ask you a quick question. However, you’ll never know until you sit down with them and ask them and never make assumptions because those assumptions will either be incorrect or there or there about but missing the crucial bit. If you get this part of the process right, you are instantly going to positon yourself and your chambers ahead of your competition. You will be recognised as someone who is interested in finding out what you need to do to improve the service you offer which will create its own positive PR bump and that bump will only increase when you’re seen to act on what you’ve been told. Again independent client service reviews or interviews with your CEO or senior clerks will eke out some of this information but it is also something you can either chat about when you meet your instructing solicitors in a more social environment. And it’s not a case of “tell me why I’m good”, you need to be more subtle and ask questions like
“what else could chambers be doing for you?”, “is there anything else we could be doing to help you bring your team on?” or “is there anything we could change about the way we work that would make your life easier?” 7. Measure progress As I said a few paragraphs ago, what gets measured gets done so try and set up a quarterly review with your clerks, marketing people and anyone else involved in delivering your client development plans. The purpose of the meeting is to confirm you have done what you’d planned for the previous quarter and set out what you will be doing during the next quarter. It needn’t take too long (in fact the shorter and more focused the better they tend to run) but it does maintain the discipline required to keep things moving. And if it only acts as a last minute reminder that you needed to set up that Q&A session, lunch or coffee 24 hours beforehand, you can set up that Q&A, lunch of coffee and report back faithfully that you have completed your actions for the quarter!
Size 10½ Boots are helping a growing number of chambers improve the way they approach client development by supporting the research (via client listening), planning and implementation phases. You can find out more by emailing email@example.com.
the barrister Easter Term 2019
Dana Denis-Smith, founder of The First 100 Years project charting the journey of women in the legal profession tells us about one of the project’s latest film launches and what to look out for from the project in 2019.
he First 100 Years recently launched its latest film, featuring Cherie Booth QC. She talks about how as a pupil she never saw a woman barrister, which made it a challenge for her to find her voice. It is precisely these sentiments that the profession needs to hear. I launched the First 100 Years to give women lawyers a voice, but also to create a positive legacy for future generations. We need an understanding of the past to enable us to learn lessons for the future. It is a charitable initiative, reliant solely on the goodwill of fellow professionals and donations from individual lawyers, law firms and chambers. This year is a pivotal year for the project as it sets out to mark the centenary of the Sex Disqualification (Removal) Act 1919, which paved the way for women to become lawyers. To kick off this crucial year, we hosted an evening with Cherie Booth QC kindly sponsored by KPMG, where we launched the film of her story in the profession. It gives a fascinating insight. Here are some excerpts:
Well when I first decided that I wanted to be a lawyer it was quite a strange decision for me to make because I didn’t know any lawyers personally, nobody in my family had
ever been to a university, I certainly never came across lawyers in our ordinary everyday life. But I come from Liverpool, and my grandmother was a great fan of Rose Heilbron QC, and of course Rose was the first ever woman QC, she was also the first woman to defend someone on a murder charge when there was still the death penalty, and the first woman to plead at the Old Bailey; she did so many firsts. And Rose was a girl from Liverpool, and Liverpool were tremendously proud of Rose Heilbron and my grandmother used to go and watch her when she was in the Liverpool Assizes, she used to come back and talk about her. Then in the late 60’s early 70’s there was actually a drama on TV called I think something like ‘Justice’, but it was based loosely on Rose Heilbron… And so I don’t know but subliminally it obviously had an effect on me and I thought well if one girl from Liverpool can make it as a lawyer why shouldn’t this girl from Liverpool make it as a lawyer. Of course, it was only when I actually started to study law that I suddenly realised that the reason why Rose Heilbron was so famous was because she was so rare. When asked about being in a minority when studying at LSE, she says: I can remember getting the call [to the Bar in 1976] because I was the top student, I was invited to make
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the speech and sit with the benchers and Lord Denning being there saying to me, “Oh well really the Bar isn’t the place for…for women”, so it’s not exactly the most encouraging way to start. I don’t know, somehow or other I felt that I was going to be different. I went on to do my pupillage and I can remember looking back that whole first year, although there were two other women in chambers who were tenants at that time, I never ever saw a woman barrister appear in court that whole time I did my pupillage, all the people I saw standing up and advocating were all men. And for a woman, you know you’ve got to find, as an advocate you have to find your voice, and so you know it’s quite a challenge when you didn’t see many women advocates to know what a woman advocate’s voice should sound like. But that didn’t mean that there weren’t other rolemodels, so I always remember as a pupil, we did a case and Derry Irvine was our pupil master and he did a case against Tom Bingham and the two of them locked horns over that. Now Derry is a big man, a big presence, and I would always say that his cross-examination technique was a bit like a rhinoceros you know, he was out there. And then I watched Tom Bingham cross-examine the same witnesses, he was like a snake, much more subtle, sinuous and I thought actually I’m probably better trying to
be a snake rather than a rhinoceros. On starting Matrix Chambers:
I was a founder member but the truth was there were far more men than women still in those chambers – even today I think that’s still the case. Yet we don’t have an issue any more about attracting women to the law because nowadays no-one would say “oh women can’t be lawyers.” When I was a student the Glanville Williams book ‘Learning the Law’, that was given to us on the first day at LSE, said that women can be lawyers but they’re better of being solicitors because women advocates are not successful because their voice doesn’t travel as far in court as men. Now no-one would say that anymore but nevertheless we still find that women drop out more [of the profession]. When I became a Queen’s Council, Rose Heilbron my role-model was number 1, I was number 76 so from 1949 to 1995 that’s quite a long time to have had only 75 more women QC’s. But times have certainly changed. Cherie recalls one funny episode in court when her female counterparts outnumbered the men:
I have been in cases where virtually all of the advocates were women. I
remember I was in a case in the Court of Appeal when there were three judges, two women and one man and when my male opponents stood up to address them he kept saying “my lord and my ladies” until eventually the male judge lent forward and said: “I think that from now on perhaps you could address us all as my lady”, it was so funny. She also talks about the profession’s diversity problem, saying that it is now much more difficult for people from working class backgrounds to come into the law because of the way the system is funded:
…so what we are seeing I think still is that it’s much more difficult now for working class or people from disadvantaged backgrounds to come into the law in the first place because of the way we fund our system it’s very difficult…and that’s something I feel very passionately about something I try and work on, because we do need to have diversity in the legal profession, it’s a problem I think we’re actually going backwards. I think there are fewer state educated people coming to the bar now than there were in the past and that’s partly to do with the lack of legal aid work that did open up an avenue which provided support for people who otherwise couldn’t have afforded a career at the bar.
You can watch the full film at: https://www.youtube.com/ watch?v=Nz1crf8Db64&t=608s&mc_ cid=1a2aea1275&mc_eid=8c04b45c82 We’ve also just launched an interview with Helena Kennedy QC, which you can view here: https://www.youtube. com/ If you or your chambers would like to sponsor a film and host a launch for it with your clients in chambers or even hear more about what we have planned throughout the year, please get in contact with me at: d.denis-smith@ spark21.org You can read more about the project by visiting our website at: https:// first100years.org.uk/ Donations can be made via our website at: https://first100years.org.uk/ support-us/digital-wall/
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The criminal law disclosure process, why is the system failing? By Marlon Grossman, Solicitor at Stokoe Partnership, criminal defence specialists
he disclosure process asks police and prosecutors to shoot themselves in the foot, by assisting the defence. They should be proud to do so. For, in so doing, they are upholding faith in the justice system itself, and helping ensure that the innocent aare not wrongfully convicted.
blemish rise again to stain our criminal justice system and to produce a dent in the confidence in what is otherwise something in which we should be enormously proud.” The thunderous oratory of the Attorney General appears sincere. As lawyers, we must welcome his making this one of his central priorities.
Prosecutors’ disclosure obligations arise from the fundamental right to a fair trial. Yet eight centuries after the Magna Carta, it is widely acknowledged that the UK’s criminal disclosure process is failing to live up to its ideals.
Disclosure is a fundamentally straightforward proposition. The fundamental principle of natural justice, audi alteram partem. requires that both sides be heard. This clearly cannot happen if vital evidence is withheld from the defence. The Attorney General’s guidelines state that prosecutors must disclose material that “might reasonably be considered capable of undermining the prosecution case or assisting the case for accused”.
Prosecuting lawyers are often rightly proud to uphold their ethical duties to the court, and to the administration of justice. Yet there is too often a lack of communication between investigators and prosecutors and a failure by investigators to understand and crucially apply the rules of disclosure At best, evidence that ought to be disclosed has inadvertently fallen through the cracks - being missed, dismissed or forgotten. At worst, material is deliberately withheld. On 23 January 2019, the Attorney General, Geoffrey Cox QC, appeared before the House of Commons Justice Committee and theatrically vowed to “crack the whip” to fix the disclosure system. Mr Cox told the committee, “I intend to hold to account each responsible individual, and I intend to ensure that things are getting done … what I have to do is crack the whip and I will crack the whip, because I am determined that we don’t see this
Vast texts and manuals explain the nuances of the law on disclosure to prosecutors and investigators. There is a developed legal framework for disclosure, set out in the Criminal Procedure and Investigations Act, 1996. Seemingly, all this has been insufficient. A 2017 CPS inspectorate report found that prosecutors had fully complied with their disclosure duties in just 56.9% of cases inspected. Amazingly, this represented an improvement on the previous such report, where disclosure duties were complied with in only 34.8% of cases. Defence lawyers are all too aware
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of the impact that such widespread failures to disclose evidence can have on their client’s cases. Anecdotal evidence suggests many of our clients have suffered as a result of these deficiencies in terms of disclosure. The public has recently seen a number of high profile cases collapse, and convictions overturned, because the police and prosecutors have not complied with their disclosure obligations. The 2017 trial of London student Liam Allan, accused of rape, collapsed after it emerged that crucial exculpatory messages were not disclosed. A joint review of that case by the Met and the CPS blamed “a combination of error, lack of challenge, and lack of knowledge”. The CPS frankly admitted that “The prosecutors involved in this case did not sufficiently challenge the police about digital material.” In 2017 alone, 916 defendants had charges dropped due to a failure to disclose evidence. The financial cost of such cases runs in to the millions. The costs to the individuals affected - and to the public’s faith in the justice system are far less easy to calculate. Other recent examples that we have been involved with include two HMRC cases, which had to be abandoned mid-trial once vast amounts of highly relevant documents emerged, which had not been properly recorded - let alone disclosed. A conspiracy to murder case also recently went all the way to the Court of Appeal, and on to a
second trial. Yet the case was ultimately abandoned when crucial evidence as to the locations of the defendants was revealed, even though police had given assurances such evidence did not exist. There is no golden age of disclosure to hearken back to, when justice was done to all. The past wasn’t always better, but the future isn’t what it was supposed to be either. Something has clearly gone wrong and government ministers could start by asking the simple question: why is the system failing? Mr Cox proposes to “hold to account each responsible individual”, yet this is to miss how systemic failures feed into the problem. Police and prosecutors often find themselves overworked, overlooked and under-resourced, having suffered severe cuts to funding and personnel, including their most experienced staff. Rather than rushing to judgement and blame, a coordinated and targeted approach is required. The most obvious remedies include greater prosecution involvement from the outset. All too often, prosecution lawyers receive evidence at the last moment. Evidence that passes the test for disclosure must be identified far earlier in the process. Years of cutbacks to UK police forces and to the CPS have taken a grave toll. Over the past decade, the total number of police in England and Wales has declined by some 20,000. This dramatic fall in police numbers represents a reduction of approximately 15% in just a decade. The CPS has faced similarly draconian funding cuts. Its budget has been slashed by over 30% since 2010, resulting in thousands of fewer staff to handle cases. Set against a background of rising violent crime over the same period, it is little wonder if police and prosecutors are sometimes struggling to properly review all the available evidence for disclosure.
must be adequate investment in both training and staffing for police, prosecutors and adequate legal aid funding for defence lawyers. More stringent oversight of disclosure may certainly help to improve the situation. Yet increased motivation counts for little unless both adequate knowledge and resources are in place to enable police and prosecutors trawl through volumes evidence and properly assess it. Better training is vital to ensure that the original investigators fully understand their disclosure obligations and how to apply them in practice. Investigators are there to independently investigate and follow the evidence. They should cherish their crucial function, and be confident to shine the light of truth on their cases. Officers can then feel able to confidently give lawyers assurances that they have fully complied with their disclosure duties. To give weight to such assurances, disclosure officers in criminal cases could be required to sign a sworn witness statement stating that their disclosure duties have been fully complied with. Introducing such a requirement – along with adequate resources - would back with action the recent powerful words of the Attorney General and his demands for the restoration of responsibility, accountability and credibility. Any future failings would then surely result in Mr. Cox’s infamous whip being cracked.
Marlon Grossman is a Solicitor at Stokoe Partnership Solicitors, a specialist criminal defence firm with offices in London and Manchester.
It is not just the prosecutors who are underfunded, however. There is no doubt that cuts to legal aid for criminal defence lawyers has also put serious pressure on the UK’s criminal justice system. Radical cuts in fees leave defence lawyers less time to review cases, and to deeply analyse evidence. The resulting pressures naturally make it more difficult for defence lawyers to fulfil their role in detecting prosecution errors and exerting pressure on their client’s behalf to ensure that the prosecution’s disclosure obligations are fully met. The government has recently promised a “wide ranging review” of legal aid fees, but few criminal defence lawyers are holding their breath for the promised appearance of the report at the end of the summer - summer 2020, that is. Criminal defence lawyers know that the funding of criminal defence is never going to be government priority. It is a soft target for any government seeking to make cuts, since the public tend to have little sympathy for funding lawyers or accused criminals who are seen to be “trying to get away with it.” This view is perpetuated and intensified in the media and in popular culture. There is little regard given for the fact that defence lawyers are working to protect the innocent too, in the interests of justice. Working in an underfunded system is a constant battle and grind for lawyers. It is little wonder that many are abandoning criminal defence work. Legal talent is simply draining out of the system. The net result of a decade of cutbacks to police, prosecution and defence is a criminal justice system under severe strain. Our failing disclosure system is but one symptom of this wider and deeper malaise. In order to remedy it, there
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Nigel Booth, Criminal Barrister at St John’s Buildings, comments on the rise in people representing themselves at Court, and the key things people should consider when facing the prospects
n my twenty plus years at the Bar, I have seen many people representing themselves who have little idea what they are doing. Lack of experience is not their fault - how are they to know what to do? Criminal practitioners start their practice prosecuting unrepresented defendants in the Magistrates’ Courts. But unrepresented defendants in the Crown Courts? That was a rare thing. The rise of the unrepresented defendant in the Crown Courts has long been foretold. Unrepresented not by choice, but by necessity. There has been an unspoken contract that, as the level of charge gets serious enough to come within the wider sentencing powers of circuit judges, so it is more likely that legal aid will be granted. That contract was broken by a revised ‘means test’ that removed legal aid from a swathe of society, then smashed when it became impossible for acquitted defendants (who had paid privately for their defence) to recover their costs beyond the level that legal aid would have paid. The average Miss Smith, excluded from legal aid, simply does not have the funds to pay privately, and is forced to become a DIY criminal advocate. It is an increasingly intolerable situation. Ask any criminal advocate - we all have tales to tell. I have seen Judges and prosecutors tread the line between giving information and advice. Recently, after introducing myself to an unrepresented defendant in a ‘Proceeds of Crime Act’ hearing, I explained that he was not obliged to speak to me, but asked whether there was anything that he felt I could help him with before the hearing began. He shook his head at me and refused to shake my hand. I have heard about one criminal lawyer who volunteered some free advice, despite the insurance risk, because of the dire need of the litigant in person. All the while, I have seen court hearings take far longer than if the defendant had been represented. That is a significant problem when the
hearing is the trial. A recent two day trial prosecuted by a colleague of mine in Chambers took four days. Another colleague of mine saw a trial with a two day estimate last a total of five days. This is bad news for witnesses who have no certainty about when they can expect to give their evidence. It also poses a problem for forthcoming trials, whose ‘slots’ might be lost. When the legal aid cuts were proposed I went to see my MP to express my concerns. He replied that the price of austerity in the criminal justice system was that people “might just have to wait a bit longer” for their cases to be heard. I invited him to come with me and explain that to the rape complainants in my next few cases. He never came. The system saves the cost of a barrister, yet happily pays for a two day trial to take five days. How much does it cost to keep a courtroom open for a day? Judges have quoted the figure £10,000 to me, whereas a barrister’s daily legal aid rate for a typical ongoing trial is generally measured in the low hundreds. It is also worth noting that if the charge is one where the law prohibits a defendant in person from asking questions of a vulnerable witness, the system must still pay for a barrister to step in and cross-examine that witness. Money saved in one pot is spent from other pots. How do you defend yourself in a criminal court? The great unspoken problem from legal aid cuts is that when people represent themselves, they tend to do so badly. How does one cope with the sheer stress of preparing one’s own Crown Court defence? Some common examples of lack of preparation by unrepresented defendants, beyond a general lack of focus, include the following: •
Not bringing a witness to testify about an important fact, typically saying to the Judge, “Just ring AB,
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he will tell you”; Not understanding the difference between evidence and speeches, typically wanting to re-state their case in cross-examination (“the witness said X, but the truth is Y; why is the Judge stopping me from saying so?”); Some witnesses, having completed their evidence, have to be recalled to deal with an important point which the unrepresented defendant did not realise should have been put.
How can we ensure that litigants in person defend themselves as well as they possibly can? In my experience, it is vital that defendants should know in advance about the different types of court hearings that they are likely to encounter and how they can prepare appropriately for the court hearing. Their preparation will be different, for example, for the first appearance at the Magistrates’ Court, for the trial and, obviously, for the sentencing hearing. If an unrepresented defendant knows what will be expected of them, then they can prepare accordingly and be able to contribute in a manner that advances case preparation and represents effective case participation. It is not rocket science to see why cases with unrepresented defendants take much longer. The criminal Bar identifies that adherence to elementary rules of evidence (i.e to the law) may perversely give the impression to the jury that the unrepresented defendant is being given a rough deal. Do unrepresented defendants fail to spot important points, or make bad ones, and thus increase their chances of being convicted? Do juries have sympathy for their efforts and side with the underdog? Place your bets now. The main lesson is that it is important not just to identify the real issues early, but to make an early concentrated effort to train the unrepresented defendant in elementary rules of evidence.
Mixed in with all of this is the central question of whether to plead guilty or not guilty, to which surprisingly few unrepresented defendants give real thought before the first court appearance. There is often a mistaken assumption that there is a duty solicitor at the Crown Court. The unrepresented defendant should know that there is a sentencing guideline that regulates credit for pleading guilty. This is not to apply pressure, but simply to inform about the different factors in play. Who can an unrepresented defendant expect to interact with at court? Will she be able to speak with the prosecutor, or the prosecutor with her? What role do the officials play who sit in front of the Magistrates or the Crown Court judge? What does the usher do? All these things are taken for granted by the criminal advocate, but for an unrepresented defendant it can be seriously unsettling not to know what will happen or who she will be dealing with. There are some more complicated topics. How, when and why to supply a defence statement is very important, and with this comes a consideration of how the prosecution decide which unused material to disclose. A defendant should know how they may challenge those decisions even, that disclosure decisions may be challenged. The alibi defence must be understood in terms of what information the defendant is obliged to give. What about trials: how can an unrepresented defendant put into practice what a trained pupil barrister feels most apprehensive about? Again, knowing what to expect is key. This can be helped by describing the different stages of a criminal trial, including: jury empanelling; witnesses; questions/speeches and summing up, as long as there is explanation in advance about the rules of evidence.
A decision must be made where to stop. I think that the rules on special measures and bad character evidence merit some explanation; otherwise considerations that are quite normal to a criminal lawyer can appear suspicious and conspiratorial. And what about sentencing, the area that many criminal lawyers think is the most complicated? As with most topics, detailed exposition is unhelpful; instead it’s important to concentrate on what to expect. To have read the sentencing guidelines in advance would be a major step in preparation. To understand that there may be applications for ancillary orders such as restraining orders can take away the sting. To have a basic awareness of the Proceeds of Crime Act (now there’s a whole book in itself) is informative. Unrepresented defendants are here to stay at the Crown Court, so long as the Government believes it is important to save money from that pot - no matter what the consequent costs may be from other pots. They must, like every defendant, make their own case decisions. If we can help them understand what to expect and how to prepare, then we can help smooth the path for them and for everybody involved in the criminal justice system.
Nigel Booth’s book “How Do I Defend Myself At Court: What To Expect, How To Prepare” is available from Amazon.co.uk. The book’s website can be found at www. HowDoIDefendMyself.com.
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How to encourage mediation without compulsion By Peter Causton, Barrister, Whitestone Chambers
arristers are increasingly training as mediators and attending mediations on behalf of clients as advocates. Many clients are requesting barrister mediators, as they are perceived to be more knowledgeable about legal principles and authoritative. So there are a lot of opportunities for barristers to train as mediators and now the recommendations of the Civil Justice Council ADR working group are likely to result in increased mediation in the Court system. Many people would agree that the provision of mediation and ADR in the Court system is patchy to say the least and that in most cases it can result in settlement and costs savings, or at the very least narrow the issues between the parties. It also seems to work best when carried out as early as possible, before costs have escalated. Costs can form a barrier to settlement. The main stick that judges use to beat litigants with if they refuse ADR is the risk of a costs sanction at the end of
the case. This is not very effective in encouraging more use of mediation. It is simply too late to consider this issue following the conclusion of the trial and judges are often not interested or don’t have time to consider the applicability of the Halsey principles and to apportion blame for failing to mediate. Over a year after issuing its initial report on ADR, the CJC published its final report in November 2018. The aim of the CJC’s review was “to maintain the search for the right relationship between civil justice and ADR” and to promote debate over possible reforms.The terms of reference were: * To review existing forms of encouragement for mediation (and other suitable forms of ADR) in civil cases in the Civil Procedure Rules, case law and the powers of the court. * To consider alternative approaches to encourage the use of mediation (and other suitable forms of ADR) in civil disputes, including practices in other
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jurisdictions. * To assess proposals for reforms to the rules or for initiatives that might be taken outside the formal rules. * To monitor and contribute to the forthcoming review of the EU Mediation Directive. In relation to this latter point a lot of encouragement of ADR has come from the EU and it remains to be seen what will happen after 29 March to the EU Mediation Directive and ADR Regulations which have been incorporated into UK law. This report followed on independently from Lord Briggs’s final report and review of the structure of the civil courts published in July 2016. Lord Briggs proposed the creation of an “Online Solutions Court” covering most claims (except personal injury) whereby when filing a claim the parties would be informed about other options and then once information has been exchanged online, a legally qualified
Case Officer will try conciliation or mediation. There will be only limited legal costs recoverable, if any, and so legal representation will be the exception rather than the rule. The idea is that the Court will be easy to use and so will be designed to be “lawyerless” with simplified user friendly rules. This recommendation is being implemented through the Court Reform programme. In respect of low value personal injuries claims, the CIvil Liability Act has been enacted and the MOJ is setting up a new system to replace the Portal for use by litigants in person.
recommends a number of steps to give more weight to the existing “nudges and encouragements” toward ADR within the court system, with the aim of “spring loading .. the system in favour of the use of ADR at an appropriate stage”. In particular:
For other cases falling outside the new Court’s jurisdiction, Lord Briggs’ recommendation was to reinstate the national mediation helpline and to create an out of hours court based mediation service. Despite the overall objective of taking the “A” out of “ADR”, the national mediation helpline and out of hours court based service has not been introduced. What has happened is that a mediation pilot started in October 2017, in London Exeter and Manchester.
2. Court documents, protocols, guidance material for litigants and case management should all express a presumption that ADR should be attempted at an appropriate stage in the case.
The pilot (which we run in Manchester) provides mediation at a fixed rate for claims going through the CIvil Court at up to a value of £250,000 and excluding personal injury claims. It is not an “out of hours” scheme but mediations take place at the Manchester CIvil Justice Centre in the Court conference rooms. The idea is that if successful the pilot will be rolled out nationally and be incorporated into the Online Solutions Court. The parties are not forced to mediate or use the pilot, but the judges make an order at allocation stage proposing mediation and drawing the parties’ attention to the pilot scheme should they wish to use it. The CJC 2018 report includes various recommendations aimed at improving the awareness of ADR (both in the general public and in the professions/ judiciary) and the availability of ADR (both in terms of funding/logistics and regulation of the professionals involved). The key recommendations relate to Court/Government encouragement of ADR. The report does not recommend compulsory ADR and rejects the introduction of mandatory Mediation Information and Advice Meetings (as used in the family courts) as a precondition to pursuing civil claims. However, the working group
1. The court rules and case law have been too kind to those who refuse to mediate and should be reviewed. In particular, the Halsey guidelines need to be reviewed to reduce the number of circumstances in which a refusal to mediate is regarded as reasonable.
3. ADR should be encouraged at an earlier stage and there “should be a perception” that formal ADR must be attempted before a trial can be listed. 4. The terms of the claim document (and possibly the defence) should include a requirement to certify attempts “to contact the other party and achieve settlement” (although this requirement, as detailed later in the report, is limited to certifying awareness of the availability of alternative methods and that litigation should be a last resort). This is in line with the ADR Regulations 2015 which impose a requirement on traders to signpost consumers to ADR, but do not require traders to use ADR. 5. There should be further exploration of the interim report’s suggestion of allowing judges to apply sanctions for unreasonable conduct regarding ADR not only at the conclusion of the case (as currently) but at interim stages. A number of concerns have been raised as to how interim costs sanctions would work in practice, particularly given that a party may not be able to justify its position without undermining privilege and without prejudice protections. The final report appears to seek to address such concerns by clarifying that the interim costs sanctions could be made ‘provisional’ but it is still questionable whether it is appropriate that a party whose stance is in fact justifiable (by reference to privileged/without prejudice evidence) should have the burden of persuading a trial
judge to reverse an earlier ruling. 6. There should be further consideration of a mechanism under which mediation could be triggered without the intervention of the Court, following the ‘Notice to Mediate‘ model used in the British Columbia system. This would potentially increase the use of mediation as parties would be able to serve a notice which would result in the Court appointing a mediator from a panel list, perhaps similar to the Mediation Pilot. This would also mean that there would be more opportunities for new mediators as currently lawyers tend to appoint their favourite mediator, resulting in a lack of diversity in the mediator profession. 7. The report also recommends the establishment of a forum for continuing liaison between Judges, ADR professionals and other stakeholders to implement the changes. That committee is currently being set up with representatives of the judiciary, the Bar and the Law Society being appointed. So although compulsion is rejected by the CJC, these proposals would make it more difficult for parties to opt out If the report’s recommendations are implemented, there is likely to be an increase in mediation and ADR generally, which Barristers will want to know about and to be involved with, either advising parties or training as mediators. One thing is certain, mediation and ADR is on the up and barristers are well advised to hone their mediation and negotiation skills to prepare for the brave new world of dispute resolution which will be less focused on trial advocacy and more on mediation advocacy.
Peter Causton Barrister ProMediate (UK) Limited CMC Mediation Training Provider CMC Registered Mediations Provider Regulated by the Bar Standards Board +44 020 7822 8822 firstname.lastname@example.org www.whitestonechambers.com Whitestone Chambers
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Child witnesses still being let down by criminal justice system Peter Wanless, NSPCC Chief Executive
hild witnesses are still being let down by the criminal justice system despite a raft of commitments by Government in the last decade, new NSPCC research has revealed. The study found that delivery of the Government’s commitments to child witnesses in England and Wales was inconsistent and not routinely monitored. These Government policies address every stage of a young witness’s experience, from police investigation through to trial. Insufficient support has a negative impact on children’s emotional and mental well-being and the NSPCC fears could lead to abuse victims being retraumatised. It also undermines their ability to give the best possible evidence and prevents justice being served.
• New NSPCC research reveals Government failure to deliver successive policy commitments to child witnesses • Lack of leadership and accountability for policy delivery • No overarching approach to safeguarding children • Under-use and under-resourcing of specialists to help children’s communication at police interview and trial • Substandard video interviewing, long delays in court process and inadequate support for young witnesses.
Poor practice identified in the research included: •
The ‘Falling Short?’1 report looks at progress made since landmark research by the NSPCC 10 years ago, about support for the tens of thousands2 of children who enter the criminal justice system each year as witnesses to a range of crimes, including as victims of child sexual abuse, grooming, exploitation and neglect. This latest NSPCC-commissioned study, carried out by Lexicon Limited researchers Joyce Plotnikoff and Richard Woolfson, looked atover 40 policy and guidance documents and examined how these were interpreted in practice by 272 criminal justice system personnel. Those interviewed described some good practice but reported many instances where treatment of children fell well below the standards set by Government policy. The authors concluded that it is impossible to predict with confidence
coherent and accurate evidence – the study suggests that at most only one in six young witnesses had intermediary assistance at the trial stage.
the response of the criminal justice process to any individual young witness.
Long waiting times for trials which can cause anxiety and distress – One intermediary in the study said: “I had a case recently where I had met the child when she was four for the ABE (police interview), but the trial was two years later. A date was set and I’d been asked to attend, before it was decided that too much time had elapsed and she wouldn’t remember.”
Unsuitable waiting areas, such as risk of the child crossing paths with the defendant, and unfit rooms for giving evidence – 11 of the 30 (37%) Witness Service team leaders described their courts’ waiting areas as inadequate for children and none felt their live link rooms were child friendly.
No access to a registered intermediary, a communication specialist who advises on how to question children and helps ensure they give complete,
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Low quality interviews by police – in the study only 30 of 120 judges, lawyers and intermediaries (25%) could almost always see children’s facial expressions and hear them clearly when police video-recorded interviews were played as evidence-inchief at trial.
Inadequate support prior to court hearings, such as not being given the opportunity to visit a court before trial or being able to choose how to give evidence – in the year to March 2018, Witness Service figures suggested that up to one third of young witnesses attending court had not been supported prior to the court hearing.
Amanda* felt extremely let down by the criminal justice system after the case against a man accused of sexually abusing her three-year-old son Tom*
collapsed the day before the trial was due to start. Despite an initial positive experience of the assessment by a registered intermediary and the police interview of her son, she felt that after that there was a lack communication with her and between the different organisations involved. She was left feeling angry and confused when the decision was made by the Crown Prosecution Service to withdraw the charges. Amanda* said: “The intermediary who assessed Tom* when I first reported the sexual abuse to the police was fantastic. She made recommendations about how things should go forward and the support that Tom* should get but none of it happened. “The date set for the trial was one the intermediary couldn’t make, which I thought was detrimental to Tom* because he had established a good rapport with her. We were given a pre-trial visit but I was concerned there was a risk we would bump into the defendant during the trial because of the layout of the building. “A couple of weeks before the trial, Tom* was assessed by a second intermediary in unfamiliar
surroundings and he was very nervous. After that I was told by the Crown Prosecution Service that the case had been closed. I didn’t understand the decision and I felt there was a lack of communication. “I feel angry and devastated that my son didn’t get the justice he deserved. We need a system where young children’s voices are heard. What kind of message do we send out to perpetrators if they are not?” Author Joyce Plotnikoff said: “The gap between best and poor practice is wider than ever. While the best is superb, lack of oversight means much inadequate practice goes unaddressed. The study failed to identify a single improvement arising from systematic monitoring. Without accountability, policies pay only lipservice to commitments to improve the justice system’s response to children.” Peter Wanless, NSPCC Chief Executive, said: “It is appalling that accepted best practice for supporting child witnesses is not being used consistently across the criminal justice system in England and Wales.
is a crucial part of helping young people who have been abused start to rebuild their lives. “It also helps children give evidence in the best possible way, increasing the likelihood of justice being served.” Following an NSPCC campaign3 in 2014, the Government committed to ensuring that by March 2015 there would be compulsory training for publicly-funded advocates who took part in serious sexual cases, and that vulnerable witnesses could choose to give evidence away from the court building. However, the Bar’s national advocacy training programme has not been made compulsory, and sites for giving evidence remotely are not routinely used and are not available in some parts of the country. In the second stage of this latest study, due to take place this summer, young people involved in the criminal justice system and their parents will be interviewed about their experiences.
“Tailored support for children at every step of the witness process
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