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ESSENTIAL READING FOR BARRISTERS

3rd October - 21st December 2011 Michaelmas TERM ISSUE

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Campaigners and local authorities are turning increasingly to judicial review in order to resist austerity measures. The legal challenges grouped together under the ‘anti-cuts’ banner are far from homogenous. But it has become increasingly apparent that the challenges which have succeeded, have tended to be those framed around a breach of the Public Sector Equality Duties (“PSED”), rather than more general grounds, such as a failure to consult.

The Victories...

Features time for change? – 10 AThe Legal Education and Training Review

Cases:

To date, there have been four major victories against the cuts. The first of these came in January 2011, with the quashing of a decision of London Councils to cut the funding of a Roma support group (R Thom Dyke (on the application Barrister of Hajrula) v London Councils [2011] EWHC 448 (Admin)). The claim was brought on grounds of insufficient p.6

Young Adults and Maturity: the case for sentencing reform This formally introduced the issue of maturity

a pioneering development. For the first time in

into the sentencing process with the inclusion

England and Wales the concept of ‘maturity’, as

of ‘age and/or lack of maturity where it affects

distinct from chronological age, was formally

the responsibility of the offender’ as a personal

introduced into the sentencing process. This

mitigating factor for those over the age of 181.

is a very welcome shift in sentencing, bringing

Subsequent consultations by the Sentencing

us more in line with the vast majority of our

Council on new guidelines for drug and burglary

European neighbours where it has long been

offences have continued to include lack of

accepted practice to take account of the

maturity as a mitigating factor. This is to be

developmental stage of young adults, and where

welcomed given the substantial body of evidence

in some countries young adults aged 18-20 are

showing that brain development continues into

formally integrated into the juvenile justice

the mid to late 20s, affecting reason, judgement

system. What has changed and what lessons can

and impulse control. It remains to be seen

be learnt for future criminal justice policy?

whether, and to what extent, this mitigating

School 14 Appealing Exclusion – the hard sell

For a child, permanent exclusion is perhaps the most severe punishment they could face without becoming engaged with the criminal justice system By Adam Porte, Co-Director, School Exclusions Project

There’s much change afoot with our beloved law reports and we now have a new addition to go with all the old favourites such as the All Englands and the Weekly Law Reports. By Phillip Taylor MBE, Richmond Green Chambers

News 22

Incoming Chair of the Criminal Bar Association: The Criminal Bar is Vital to Ensuring Justice

23

Bar Council and Criminal Bar Association Voice Qualified support for Courtroom cameras

factor is now adopted by the courts, and how it

Publishing Director: Derek Payne

impacts on local sentencing practice.

0845 5190 176 email: info@barristermagazine.com

In June this year the Sentencing Council guideline on assault offences came into force.

When creating the Legal Services Board (“LSB”), the Legal Services Act 2007 also laid down its main objectives. One of these specifically requires the Board to encourage ‘an independent, strong, diverse and effective legal profession’ section 1(f). By Deveral Capps, Northumbria University BPTC Providers’ Representative on the Legal Education and Training Review’s Steering Panel

new type of a Law for a new type 33 AReport of emerging law!

Earlier this year our sentencing system witnessed

What has changed?

price £2.80

ISSN 1468-926X

Challenging the Age of Austerity The coalition’s spending cuts are set to have an unprecedented impact on the landscape of local and central government decision making. Outlined in the October 2010 Spending Review, they equate to an average cut in departmental spending of 19% over the next four years. Public bodies are having to make progressively more unpopular decisions as to the allocation of resources and provision of front line services.

Est. 1999

A difficulty in widespread adoption may

p.8

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03

A Tale of Two Cities – Luxembourg and Westminster By Dr Michael Arnheim, Barrister, Clarendon Chambers, Temple. Sometime Fellow of St. John’s College, Cambridge

T

he

problem

with

But, if EU law was already supreme under

What this means is that the Germany has

not

ECA 1972, then the obvious way to roll back

reserved to itself the decision on whether to

judicial

EU dominance must surely be to amend

recognise and apply a particular provision

activism right here in

that legislation. What changes to ECA 1972

of EC law.

Britain. That was the

does EUA 2011 introduce? Answer: None.

in the July 2005 decision by the German

conclusion I reached

What effect then will EUA 2011 have on the

Constitutional

in my first article in this series, where

dominance of Brussels and Luxembourg

applying the European Arrest Warrant

the two cities concerned were Strasbourg

over Westminster? Answer: Umm…. none?

unconstitutional and void. 4

law I believe the explanation is similar –

A German Lesson

A Spanish Lesson

British judicial activism burgeoning with

Is the supremacy of EU law then an inevitable

Could the UK have adopted a similar stance

encouragement from the EU coupled with

concomitant of EU membership? That is

in regard to EC law?

supine impotence on the part of successive

certainly the opinion of the ECJ which was

Government or the judges had thought of

British Governments.

adopted by the English courts, after some

it during the Factortame saga. Instead, the

characteristic fumblings, in the Factortame

House of Lords reversed its earlier position

case.

and rolled over on receipt of the ECJ’s ruling

Europe

is

Europe

and Westminster.1

but

This was well demonstrated

Court

ruling

the

law

In the case of EU

European Union Act 2011

Probably, if the

in Factortame.

Now at last the British Government and Parliament have plucked up the courage to

By then the ECJ had

stand up to the EU – or so we are told. The

trumpeting the supremacy of EC law over

Factortame arose out of a provision of the

European Union Act (“EUA”) 2011 received

the domestic law of every member state.

Merchant Shipping Act 1988 that sought

the Royal Assent on 19 July 2011.

However, not every member state accepts

to restrict to UK nationals the right to

that proposition even now.

register a ship as British.

This

“radical new law”, as it was dubbed by

for 25 years been

the Foreign Secretary, repairs the EU’s “democratic

deficit”

and

“hands

This provision

was challenged by a number of Spanish

back

Even Germany, dedicated though it is

shipowners, who claimed that the restriction

democratic control of the way the EU is

to the European ideal, does not accept

was contrary to EU law.

developing to the British electorate”. 2

the supremacy of EC law.

How is this miraculous result to be achieved?

In the famous

“Solange” case the German Constitutional

The matter went all the way up to the House

Court declared:

of Lords, which held that the English courts

Mainly by requiring a referendum on any

had no jurisdiction to overturn a UK statute.

future treaty that transfers more power to

[19] Community law is neither a component

5 That decision was based on the principle

Brussels. More power than what? Answer:

part of the national legal system nor

of parliamentary sovereignty, which is still

More power than the EU has at present. How

international law, but forms an independent

supposedly the cornerstone of the British

much is that? Answer: The power given to

system of law flowing from an autonomous

constitution.

it by the European Communities Act (“ECA”)

legal source……[20] It follows from this

give the Spanish fishermen interim relief

1972, as interpreted by the European Court

that, in principle, the two legal spheres

by temporarily suspending operation of the

of Justice (“ECJ”) – which accords EU law

stand independent of and side by side one

offending legislation, because the granting

supremacy over UK law.

another in their validity…3

of an injunction against the Crown was

The court would not even


04

the barrister

categorically prohibited by section 21(1)(a)

21(1)(a) of the Crown Proceedings Act 1947,

The Lord Chancellor, the Ministers of the

of the Crown Proceedings Act 1947.

which states quite categorically that “the

Crown and all with responsibility for matters

court shall not grant an injunction” against

relating to the judiciary or otherwise to the

the Crown.

administration of justice must uphold the

However, as the case involved EC law, it was

continued independence of the judiciary.

duly referred to the ECJ, which delivered a robust ruling asserting the supremacy of EC

The Court of Appeal also rejected the

law over domestic law. 6 This ruling hit the

possibility of an injunction against the

This is all very well, but where is the

British legal and political establishment like

Home Office, but instead issued a personal

reciprocal undertaking of the judiciary not to

a bolt out of the blue – although the doctrine

injunction and contempt finding against

intrude into the provinces of the legislature

of the higher law status of EC law was one

Kenneth Baker, the then Home Secretary.

and the executive?

which the ECJ had been developing for 25

The basis of this ruling was that “neither

undertaking.

years.

the Crown nor the Home Office has any legal

an oath by the Lord Chancellor to ”respect

personality”, 9 or simply that “in law they are

the rule of law, defend the independence

Once the ECJ ruling came in, the House

non-persons”.10

The fact that practically

of the judiciary and discharge my duty to

of Lords changed its tune completely and

every criminal prosecution is brought by

ensure the provision of resources for the

slavishly followed the Luxembourg baton.

the Crown shows just how implausible this

efficient and effective support of the nature

“Under the terms of ECA 1972,” opined Lord

argument is. In fact, of course, the Crown

of the courts for which I am responsible.”

Bridge, “it has always been clear that it was

most certainly does have a legal personality

There is no reciprocal oath for the judges

the duty of a UK court, when delivering final

– as a corporation sole.11

to take – and the ordinary judicial oath

judgment, to override any rule of national

There is no such

Instead, section 17 contains

taken by judges on their appointment also

law found to be in conflict with any directly

This latter point was conceded by the House

lacks any reference to the other branches of

enforceable rule of Community law.” 7

of Lords, but the main thrust of its decision

government.

was to substitute “the Secretary of State Under this doctrine UK domestic law was the

for Home Affairs” for “Kenneth Baker” as

From the CRA one would never guess that

loser, because it could be “overridden” by

the party guilty of contempt for allegedly

the most fundamental principle of the

EC law, but British judges actually benefited,

disobeying an injunction. However, section

British Constitution is still supposed to be

because they suddenly now had not only the

21 of the 1947 Act disallows court injunctions

the sovereignty of Parliament (in practice

right but also the duty to strike down UK

not only against the Crown but also against

largely exercised by the indirectly elected

laws that conflicted with EC law.

“an officer of the Crown” as a back door to

executive), which alone gives this country

an injunction against the Crown. The House

any claim at all to be a democracy.

M. v. Home Office

of Lords was therefore effectively rewriting

It did not take long before judicial activism

a statute – something that unelected judges

An American Lesson

extended this power into areas which had

have no authority to do.

Besides flying in the face of the sovereignty

nothing to do with EU law. When the Home

of Parliament, the CRA does not even pay

Secretary “disobeyed” a judge’s order to

Constitutional Reform Act 2005

lip-service to the doctrine of the separation

return a deported asylum seeker to the UK,

Reforms introduced by the Blair Government

of powers.

the case trundled all the way up to the House

set the stage for a major confrontation

genuinely reciprocal separation-of-powers

of Lords even though the asylum

between the Government and the judges. In

agreement is not far to seek – and completely

2005 a “concordat” between the Government

different from what we find in the CRA.

and the judiciary was reached, which was

It may be found in the precise wording

Could a court issue an

supposedly reflected in the Constitutional

drafted by John Adams, later to become the

injunction against the Home Office or the

Reform Act 2005 (“CRA”). One would expect

second president of the USA, in the oldest

Home Secretary? In my opinion, the correct

a concordat to be a compromise agreement,

constitution in the world that has remained

answer, as given at first instance, is a simple

but the CRA can hardly be described in those

in force continuously since 1780, namely the

“No”, as is clear from the wording of section

terms. Section 3(1) provides:

Constitution of Massachusetts, dating from

seeker

himself was never found. 8

Who was right?

Appropriate wording for a


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06

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consultation and a failure to properly discharge the PSED. At [61], Calvert-Smith J asserted the importance of PSED, stating that “the duties are fundamental duties. They were introduced into law with all party support and they now form a crucial part of any public body's make up”. At [62] he carried on, noting that “where large numbers of vulnerable people, very many of whom fall within one or more of the protected groups, the due regard necessary is very high”. Therefore, despite there not having been any procedural errors with respect of the consultation exercise, a failure by London Councils to properly discharge the responsibilities arising from its PSED was held to be fatal to its final decision.

p.1

Next, in February, the Secretary of State for Education had his decision to cut funding from the Building School’s for the Future (“BSF”) quashed and sent back for proper consultation (R (on the application of Luton) v Secretary of State for Education [2011] EWHC 217 (Admin)). BSF had been launched in 2003 by the then Labour government as a £50bn programme of refurbishment for the 3,500 secondary schools in England. Given the capital spend envisaged by the project, it was one of the coalition’s key targets for cuts following the 2010 general election. On 5 July 2010, it was announced that BSF would effectively be shut down, with a majority of schemes to cease and only those at an advanced stage to be allowed through to completion. The claimant local authorities challenged the decision to withdraw funding on the basis that (i) it breached their legitimate expectation (despite a change of government following the 2010 general election), (ii) had failed to pay due regard to the PSED, (iii) fettered the discretion under Section 14(1) Education Act 2002 by adopting a ‘rules based’ approach, and (iv) had in any event been irrational. Whilst the arguments on fettering and procedural legitimate expectation were rejected, Holman J at [113] stated that “I am simply not satisfied that any regard was had to the relevant [PSED] duties at all, let alone rigorous regard”. Birmingham City Council has the dubious distinction of being subject to two unfavourable decisions. The first, in March, overturned its decision to cut funding to legal advice centres (R (on the application of Rahman) v Birmingham City Council [2011] EWHC 944 (Admin)), and then in May, the court held that it had acted unlawfully over plans to cut care for disabled people (R (on the application of W) v Birmingham City Council [2011] EWHC 1147 (Admin)). Again, both of these challenges were brought as a result of a failure to properly discharge the PSED duties. Significantly however, it was accepted by Walker J in W, that Birmingham’s acknowledgment that its

financial constraints had played a part in the proposal to cut adult social care, did not, in and of itself, breach the duty. ...and defeats The first major claim to fail at the permission stage to reach a substantive hearing, was brought by campaign group the Fawcett Society against the coalition’s emergency Budget of June 2010. The claim was brought on the grounds that HM Treasury had failed to have proper regard to the gender equality duty in two ways. Firstly by failing to complete Gender Equality Impact Assessments in respect of key Budget measures, and secondly by failing to consider the differential impact between men and women of the Budget as a whole. The claim failed at its permission stage on 6 December 2010 in front of Ouseley J. He accepted the government’s submissions that there had been a genuine need to place other considerations above those arising from gender equality. Further, he found that the Equality and Human Rights Commission (“EHRC”) provided an alternative forum for examination of governmental actions. Finally, Fawcett had not sought a quashing order against the Budget, so a declaration that it was unlawful, would be of solely academic value. The coalition has had successes in its programme of court closures. Three claims were brought against the proposed closure of the magistrates’ courts at Sittingbourne, Barry and Cardigan, on the grounds of failing to consult properly and failure to take into account relevant information. The claim in respect of Cardigan was refused at permission stage, but Sittingbourne (R (on the application of Robin Murray & Co) v Lord Chancellor [2011] EWHC 1528 (Admin)) and Barry (Vale of Glamorgan v Lord Chancellor [2011] EWHC 1532) were both considered at rolled-up hearings on 25 May and 8 June respectively. The Sittingbourne case was brought on the basis that the Lord Chancellor had failed to provide information about how criteria employed to assess the adequacy of court facilities would be weighed and he ought to have made available to consultees the local and national surveys that were taken into account. Further, the claimant argued that insufficient regard had been paid to the duty under s.49A of the Disability Discrimination Act 1995 (as amended). The Barry case however, was formulated in a slightly different way. The grounds in that case were focused on the consultative exercise, and argued that there had been a failure to consult as to alternative means of achieving efficiency savings and had failed to take into account relevant considerations in that Barry had been designated as a strategic regeneration area. Nonetheless, both claims ultimately failed

on the grounds that proper regard had been given to all the necessary circumstances. The Sittingbourne and Barry cases stand as exemplars of excellent public decision making. Despite there being strong arguments to be made against the eventual outcome, the process was sufficiently rigorous to ensure that the court upheld the decision. Obstacles One of the major hurdles faced by a potential claimant, stems from the reluctance of the courts to engage with issues of macroeconomic policy and resource allocation. This was summed up by Lord Justice Laws, who wrote in 2005 that, “it cannot in reality be doubted that in an area such as national economic policy the courts’ perception of what will count as good judicial review grounds is quite different from the approach taken in the recent authorities to the role of judges in cases touching fundamental or constitutional rights”. Claimants are faced with another difficulty when it comes to the granting of appropriate relief. In all four of the successful cases, the court remitted the decision back to the original decision maker to be remade, subject to appropriate consultation or taking into account the relevant PSED. In the BSF case, Holman J warned at [126] that, “provided [the Secretary of State] discharges that duty and his equality duties, the final decision on any given school or project still rests with him...No one should gain false hope from this decision”. The future The early claims have focused heavily on failure to consult properly, especially where the decisions have been made on the back of emergency budget cuts, such as in BSF. Now that budgets have been set by central government, an optimist might hope that the reduction in time pressure will result in consultation being conducted in a more rigorous fashion, thereby narrowing the likelihood of a decision being open to challenge. Nonetheless, the unpopular decisions which have to be made will almost guarantee more challenges will be brought. Conclusion The courts have been vigilant in asserting the need for public bodies to take proper and reasoned decisions, despite the financial pressure. Public sector defendants should expect little sympathy where they have failed in ensuring to take both the letter and spirit of the law into account. As Blake J observed in Rahman at [46]: “there is much to be said for the proposition that even in straightened times the need for clear, well informed decision making when assessing the impacts on less advantaged members of society is as great, if not greater”. Thom Dyke, Barrister, human rights and criminal law practitioner


the barrister

p.4

1780,

Article

XXX

of

which

issues, the new court will be subordinate to the will of Parliament as expressed in

provides:

legislation…Among the Supreme Courts of In

the

government

of

this

the world, our Supreme Court will, because

commonwealth, the legislative department

of its more limited role, be a poor relation.”

shall never exercise the executive and

12 Lord Woolf ‘s objection was essentially,

judicial powers, or either of them: the

therefore, that the UK’s Supreme Court

executive shall never exercise the legislative

would not have the power to strike down

and judicial powers, or either of them: the

legislation (other than in regard to EU law).

judicial shall never exercise the legislative and executive powers, or either of them: to

But why should any court have this power?

the end it may be a government of laws and

As long ago as 1765 Blackstone recognised

not of men.

the danger of going down that path:

“Poor Relation”

If Parliament will positively enact a thing

Despite the “Concordat” negotiated with the

to be done, the judges are not at liberty to

Lord Chancellor, by himself,

Lord Woolf,

reject it, for that were to set the judicial

the then Chief Justice, was critical of the

power above that of the legislature, which

planned CRA, in particular in regard to the

would be subversive of all government.13

intended new Supreme Court:

“[T]hough

called a Supreme Court, it will not, in fact, be a supreme court. Except in relation to Community Law and in respect of devolution

1 “A Tale of Two Cities – Strasbourg and Westminster”, The Barrister, Hilary 2011 2 William Hague, “Now you have power

07

to veto EU changes in referendum”, Daily Telegraph, 16 July 2011 3 Internationale Handelsgesellschaft v. Einfuhr- und Vorratstelle für Getreide und Futtermittel (“Solange I”) [1974] 2 CMLR 540 (German Federal Constitutional Court). 4 2 BvR 2236/04 (German Federal Constitutional Court) 5 Factortame Ltd. v. Secretary of State for Transport [1990] 2 AC 85 6 Factortame Ltd. v. Secretary of State for Transport, C-213/89 (ECJ) 7 Factortame Ltd. v. Secretary of State for Transport (No. 2) [1991] 1 AC 603 8 M. v.Home Office [1994] 1 AC 377 9 M. v. Home Office [1992] QB 270, at 300 10 Ibid., at 307 11 For a lucid explanation of the concept of corporations sole it is still worth consulting Sir William Blackstone, Commentaries on the Laws of England, Book I, p. 457, First Edition, 1765 12 Squire Centenary Lecture, “The Rule of Law and a Change in the Constitution”, 3 March 2004, p. 7 13 Blackstone, Commentaries on the Laws of England, Introduction §3, p. 91, First Edition, 1765

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08 p.1

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mitigating factor7.

lie with the paucity of disposals

‘rules for the treatment of juvenile offenders’

available to sentencers that reflect

recommends that young adult offenders

the developing maturity and distinct

between the ages of 18 and 21 years should,

The T2A Alliance has recommended that this

needs of young adults. At present,

where appropriate, be regarded as juveniles

approach could be tested in England and

the sentence of Detention in a Young

and dealt with accordingly. This builds on

Wales through a pilot, operating in two court

Offender Institution, available for young

the 2003 recommendation on new ways

areas. If the pilot proved to be successful, it

adults aged 18-20, is the only significant

of dealing with juvenile delinquency which

could be rolled out initially to all 18-20 year

custodial sentence designed for this age

recommended that:

olds, which would affect approximately 10%

group – and this is not without its faults2. In

of those sentenced by the courts in England

the community, there exists the attendance

“Reflecting

the

extended

transition

to

and Wales each year. The potential to expand

order requirement, which can be imposed

adulthood, it should be possible for young

the system to all offenders aged 18-24 could

as part of a Community Order or Suspended

adults under the age of 21 to be treated in a

then be explored. To help develop the idea,

Sentence Order, available for young adults

way comparable to juveniles and to be subject

the T2A Alliance has recently begun an

up to the age of 25. Again, this is rarely

to the same interventions, when the judge is

extensive programme of work examining

used. Furthermore, sentencers regularly cite

of the opinion that they are not as mature and

maturity. This includes looking at how to

the lack of local provision to explain their

responsible for their actions as full adults.4”

assess maturity based on the circumstances

limited use of the mental health treatment requirement

and

the

of the offence as well as on the individual

treatment

A review of legal systems across Europe shows

requirement, despite very high levels of

that there is widespread adoption of distinct

need amongst the offender population, in

approaches to young adults, with varying

particular young adult offenders.

levels of integration into youth systems5. In

The voice of practitioners

essence, we are out of step with international

Much of the success of German justice

We know that where local sentencers have

practices and norms in the way our criminal

policy (where both imprisonment rates and

sufficient

community

justice system deals with young adults6.

reoffending rates are much lower)8 can be

provision available they are more likely

How can the justice system in England and

attributed to the strong voice of practitioners

to make use of it, rather than hand down

Wales adopt what works best from European

in the public debate – judges, barristers,

a custodial sentence3.

sentencing, whilst retaining its own identity

probation officers and those with frontline

and existing successful practice?

experience making a powerful and credible

confidence

alcohol

in

the

A number of pilot

projects have begun to demonstrate the way to improve local disposals for young

offender’s characteristics.

argument for a system they know works. This

adults. Among these are three Transition

The Transition to Adulthood (T2A) Alliance, a

is one of the key drivers for a focus on effective

to Adulthood Alliance pilots funded by the

coalition of organisations that promotes more

solutions and rehabilitation in countries like

Barrow Cadbury Trust. These are testing

effective ways of working with young adults

Germany, rather than a populist agenda

new ways of working with young adult

in the criminal justice system, has been most

holding sway. Is this the next necessary step

offenders in London, Birmingham and West

convinced by the model of sentencing of young

for our justice system?

Mercia and are having a direct impact on

adults in Germany, which allows sentencers a

local sentencing practice. When a young

level of discretion in trying young adults up

Current high profile calls for the return of

man in Birmingham was told that a custodial

to the age of 21 under juvenile law. Under

the death penalty and the understandably

sentence was inevitable, his involvement with

this system, all young adults aged 18-20 are

angry response to the riots mask the more

T2A led to the judge suspending the sentence

transferred to the jurisdiction of juvenile

considered approach taken by the public on

for 12 months to allow him to demonstrate

courts, and courts are given the option of

matters of criminal justice when presented

his motivation to change his behaviour and

sentencing according to the juvenile law or the

with evidence of impact. The British public

work with the project.

adult law. Juvenile law is applied if “a global

are not as punitive as often thought. Indeed,

examination of the offender’s personality

public attitudes, often perceived to be an

European norms and the German sentencing model

and of his social environment indicates that

obstacle to progressive change, may not

at the time of committing the crime the

stand in the way of sentencing change. A

Despite progress in recognising the issue

young adult in his moral and psychological

ComRes poll earlier this year of 150 MPs

of maturity across both sentencing and

development was like a juvenile”. It is also

and over 2,000 adults for the Transition to

sanctions, we still have a long way to go.

applied if it appears that the motives behind

Adulthood Alliance found that almost seven

There remains a need for a more consistent

and the circumstances surrounding the

out of 10 people agree that emotional and

approach if the offending of young adults is

offence are those of a typical juvenile crime.

psychological maturity should be taken into

to be tackled effectively. A comprehensive

This approach has been used successfully in

account by the courts when dealing with a

sentencing framework, including a range of

Germany since 1953, and nearly two-thirds

young person who breaks the law. MPs are

tailored disposals, would more adequately

of young adults are sentenced as juveniles.

even more supportive, with 81% agreeing.

meet the recommendation of the Council of

For those who are dealt with in the adult

While there are calls for those involved in the

Europe and United Nations. The former, in its

system, lack of maturity is still seen as a

recent disturbances to face harsh penalties,


the barrister

underlying

a

A short thematic report: http://

system that is more effective in its

moves

towards

www.justice.gov.uk/downloads/

dealings with young people should

publications/inspectorate-reports/

not be derailed.

hmipris/young_adult_male_

In facilitating change, the voice of credible academics and those practitioners frontline public

is

working needed,

debate

on to

with

the shape

informed

prisoners-rps.pdf 3 Criminal Justice Alliance (2011) Sentencing Young Adults: Getting it Right. 4

p.3:

Council

Europe

and respected opinion. Perhaps for too long we have allowed

Recommendation

politicians, the press and those

Committee of Ministers to member

with the loudest voices to frame

States concerning new ways of

the terms of the debate. The work

dealing with juvenile delinquency

of the Criminal Justice Alliance and

and the role of juvenile justice.

others can facilitate a shared and

5

strengthened voice by bringing

Presentation

and

researchers,

professional

charities

organisations

working in criminal justice. The upcoming launch of a Centre for Justice Innovation in association with the Young Foundation will

of

of

Committee

together

Ministers 20

(2003) of

the

See Dr Ineke Pruin (2011) at

T2A

Alliance

National Conference: http://vimeo. com/24727227 6 Allen, R. (2009) Young Adults and the Criminal Justice System: International Norms and Practices.

also be of huge value to the sector

7 Dünkel, F. (2006) ‘Juvenile Justice

in

in

establishing

demonstration

Germany:

Between

Welfare

pilots and promoting innovation9.

and Justice’, in Junger-Tas, J. and

Removing the heat from the debate

Decker, S. H. (Eds.) International

by giving credible practitioners a

Handbook

platform is an essential next step to

Berlin: Springer, p. 225-262.

ensure our criminal justice system

8 British Journal of Criminology,

deals with offenders in a fair and

Vol 30. Spring 1990, Decarceration

effective way.

of

Juvenile

Justice,

in West Germany, Muncie, J. Youth and Crime, 2009, Chapter 10,

Vicki Helyar-Cardwell Director of the Criminal Justice Alliance

09

Comparative

and

International

Youth Justice. 9

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10

the barrister

A time for change? – The Legal Education and Training Review By Deveral Capps, Northumbria University BPTC Providers’ Representative on the Legal Education and Training Review’s Steering Panel

W

hen creating the Legal Services Board (“LSB”), the Legal Services Act 2007 also laid down its main objectives. One of these specifically requires the Board to encourage ‘an independent, strong, diverse and effective legal profession’ - section 1(f). In November 2010, the Chair of the Legal Services Board, David Edmonds delivered the Lord Upjohn Lecture2. During this lecture he said “the legal services market in England and Wales is in a state of transition – or rather, one of rapid evolution” and with the imminent arrival of alternative business structures this is certainly true. He also announced that the Bar Standards Board (“BSB”), the Solicitors Regulation Authority (“SRA”) and the Institute of Legal Executives (“ILEX”) would be joining together to review legal education in England and Wales. Originally called Review 2020, the Legal Education and Training Review is now affectionately known as LETR. Over the years there have been numerous reviews of legal education and its regulation. The most significant of these was the Ormrod review in 1971. This took over 3 years to complete and provided 250 pages of comment, analysis and recommendations. Whilst not all of these recommendations were introduced, it is certainly fair to state that the educational system we now have for lawyers finds its roots in Ormrod. In 1979 we had the Royal Commission on Legal Services, known as the Benson report, which eventually led to the Courts and Legal Services Act 1990. David Clementi chaired a review and reported on the regulation of legal services in 2004, the results of which, inter alia, are the Courts and Legal Services Act 2007, alternative business structures and multi-disciplinary partnerships. The above reviews, all looked across the legal profession and if they weren’t directly concerned with legal education certainly touched upon it. Running alongside these major reviews, we also have the individual regulators examining their own particular training needs. For example in 2008 and tasked by the BSB, Derek Wood QC reported on training for the Bar2, a report that led to the revamping of the Bar Vocational

Course and its metamorphosis into the Bar Professional Training Course (“BPTC”). The first cohort of BPTC students were called to the Bar in July 2011. For those who wish to qualify as a solicitor they must now undertake the third incarnation of the Legal Practice Course, i.e. LPC 3. LETR is though, without doubt, the most significant review of legal education for 40 years (since Ormrod) and as we prepare for alternative business structures it is important to ensure that the lawyers who will be delivering legal services in the future are appropriately trained and prepared. Managing the whole review is a Research Executive made up of the senior management teams of the Bar Standards Board (“BSB”), the Solicitors Regulation Authority (“SRA”) and the Institute of Legal Executives (“ILEX”). The actual review itself though will be carried out by a Research Group led by Professor Julian Webb of the University of Warwick and a core group of legal educationalists from institutions around the country: Professor Paul Maharg of Northumbria University; Jane Ching of Nottingham Trent University; and Professor Avrom Sherr from the Institute of Advanced Legal Studies. Dr Chris Decker, Rob Wilson and also Professor Richard Susskind will support the group. The research group will also be supported by a Consultation Steering Panel chaired by Dame Janet Gaymer and Sir Mark Potter former Lord Justice of Appeal and Head of the Family Division. The Steering Panel, which is scheduled to meet 6 times before December 2012, comprises legal practitioners (barristers, solicitors and legal executives), legal academics, students, young lawyers and consumers. In addition there are also representatives from the General Medical Council and the Architects Registration Board. Of the 29 places available on the panel, not counting the joint chairs, the Bar has 6 with representatives from the BSB, the BSBs Education and Training Committee, The Bar Council, BPTC providers, the Employed Bar and the Young Bar. A full cast list of steering panel members can be found at http://www. sra.org.uk/sra/news/letr-panel-appointment. page. This panel exists to offer advice to the

research group where required and thereby support the interests of those they represent. The research group have identified that their work will be divided into 4 phases. The first phase is a literature review of all writing on professional legal education worldwide - it is envisaged that this review will later be placed freely in the public domain. Phase 2 will map the current position for legal education and training and current trends. Phase 3 will look at workforce development and the whole process will conclude with phase 4 with the full report that is due to be published in December 2012. During the first meeting of the steering panel, the research group identified a number of questions that will help frame their work. These are: • What are the skills/knowledge and experience currently required by the sector and what will be required by 2020? • What kind of education and training systems will deliver the regulatory objectives of the Legal Services Act and promote flexibility, social mobility and diversity? • What will be required to ensure the responsiveness of education and training systems to emerging needs? • What scope is there to move towards sectorwide outcomes/activity-based regulation? • Is there a need for the regulation of currently non-regulated groups? At this very early stage, it is almost impossible to foresee any recommendations that could be made. However, potential areas for change are the qualifying law degree, vocational courses, continuing professional development and lawyer regulation. What could the review determine about each of these? The core law subjects that make up a qualifying law degree (“QLD”) – contract, tort, land, equity and trusts, crime, public and EU law – may benefit from refreshment. One question that could be asked of the review is ‘are there now other subjects that should be considered to be at the core of legal practice’? Is, for example, there a need for legal skills or management to be mandatory at undergraduate level? Or should advocacy be considered a core? In the Upjohn lecture previously referred, Mr. Edmonds suggested that professional ethics should be taught to


the barrister lawyers far earlier in their training. Will ethics therefore find its way into a QLD? Clinical legal education, experiential learning and problem-based learning are certainly innovative and effective methods of legal learning. However, with the advent of full-cost tuition fees, will school leavers look for other ways to take the first steps towards their legal career? With alternative business structures, the globalization of legal services and expected outsourcing of some legal services to India and China, the demand for paralegals is anticipated to rise significantly. Should there be greater opportunity for people to qualify as ‘lawyers’ via different routes? Certainly ILEX has long been offering work-based routes to full qualification, will this now become more popular. Also, should there be professional recognition of a ‘paralegal’? When it comes to vocational qualifications, whilst there are differences between the various syllabuses and required depth of knowledge, there are a number of similarities between the LPC (the vocational course for solicitors) and the BPTC (the vocational course for barristers). Could a common vocational programme of training replace the LPC and BPTC? Further, could LETR call for a single fused profession? Or, should it recommend a system of legal training similar

to the Scotland where all lawyers train as solicitors and then progress to be advocates? Continuing professional development will almost certainly fall within LETRs spotlight. With the increase in consumerism, it is surely only right that the people who deliver legal services to the public are best placed, best qualified and up-to-date. LETR will focus firmly on the regulation of lawyers. The LSB currently has the role of supervising 8 legal regulators3. The current Chair of the SRA, Charles Plant, has already made his position quite clear in that he considers that there should only be one regulator for lawyers. He considers that this would save a huge amount administrative expense through economies of scale and undue repetition of work. A single regulator may more easily allow movement between solicitors and barristers. However, is this a positive? As has already been stated, it is far too early to determine what will be concluded and what recommended. Of the review the BSB stated, “We are pleased that the Review is now progressing. We hope that the research builds upon our previous evaluations of the Bar Professional Training Course and Pupillage and our current work on the Continuing Professional Development

11

requirements for barristers. The collaborative approach to this review will ensure a positive future for the legal profession.” LETR clearly represents a very important opportunity to alter the current legal education regime and ensure that we, in the UK, continue to have a large quantity of the most highly trained and admired lawyers in the world. Currently in its formative stages, it is not yet possible for the profession or the public to make comment upon the review, though this is something planned for later in 2011. Until then, for those who wish to be updated more readily, a free subscription to the SRA´s News RSS feed (the SRA are providing the administrative support for LETR) will provide updates as they become available (http:// www.sra.org.uk/sra/news.page). 1 http://www.legalservicesboard. org.uk/news_publications/speeches_ presentations/2010/de_lord_upjohn_lec.pdf 2 http://www.barstandardsboard.org.uk/ news/latest/220.html 3 http://www.legalservicesboard.org.uk/can_ we_help/approved_regulators/index.htm

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12

the barrister

Where Now For Testamentary Freedom? This is the question posed by Mr. James Aspden in his article in The Barrister edition #49. Mr. Aspden acted as solicitor for the Defendant charities in the recent decision of the Court of Appeal in Ilott -v- Mitson [2011] EWCA Civ 346, [2011] 2 FCR 1. As Counsel on the other side it is perhaps inevitable that I find myself on the opposite side of the argument. By John M Collins, Barrister, Zenith Chambers

M

lays

followed in turn by every state in Australia.

or her to receive. So far as the deceased's

emphasis

This in turn led to the Inheritance (Family

children are concerned, their claim is only

on testamentary

Provision) Act 1938. This Act aroused the ire

for "such financial provision as it would be

freedom

r.

Aspden

great

for

of the traditionalists because, as Halsbury’s

reasonable in all the circumstances of the

those who make

Statutes put it then, it "marked a notable

case the applicant to receive for his or her

their wills. As he

departure from one of the most cherished

maintenance".

correctly points out, the law up to around a

principles of English law by enabling the

hundred years ago was clearly as stated by

Court to make provision for maintenance of

So if all the children and other dependants

Sir James Hannen P. in Boughton -v- Knight

the dependants of a testator out of his estate

of the deceased are already well provided

(1873) LR 3 P&D 64:

in defiance of his will".

for, the Court has no power to make any additional provision under the 1975 Act. It

Under the 1938 Act, the powers of the Court,

is only when the child or other person is in

"By the law of England everyone is left free to

and indeed the persons for whom the Court

need of maintenance, using that word in the

choose the person upon whom he will bestow

could make provision, were both sharply

widest sense, that the Court has power to

his property after death entirely unfettered

limited. Both by the Inheritance (Provision for

intervene.

in the selection he may think proper to

Family and Dependants) Act 1975 and by the

make. He may disinherit, either wholly or

amendments which have been successively

In those circumstances, it may be thought

partially, his children, and leave his property

enacted to that Act, the Courts have been

that Mr. Aspden is perhaps exaggerating the

to strangers to gratify his spite, or to charities

given jurisdiction to make orders in favour

problem when he suggests that "Many are

to gratify his pride, and we must give effect to

not simply of widows and young children, but

wondering whether it is worth bothering to

his will, however much we may condemn the

also of adult children, dependants, cohabitees

make a will at all, if it can be overturned after

course he has pursued."

and now civil partners.

your death by a Judge who does not agree with the choices you have made or who does

Although that was the law, it caused great

Of course, the Act made a careful distinction

not share your view that your children can

indignation. The regular figure in Victorian

between the position of spouses of the

be expected to fend for themselves once they

melodrama

father

deceased (now extended to civil partners) and

reach adulthood, if they are not mentally or

who cut off his wife and only son with a

all other persons who were or might claim to

physically incapable of finding work". There

shilling. But, as so often happens, concrete

be within the categories of persons provided

are circumstances – and Ilott -v- Mitson was

ideas for reform came from the British

for by the Act. The spouses of the deceased

one – where it could fairly be said, and the

Commonwealth. In 1900 the New Zealand

can claim "such financial provision as it

Courts have determined, that Mrs. Ilott's

Parliament passed the Family Protection Act,

would be reasonable in all the circumstances

straitened circumstances were such that in all

which enabled the Courts to overturn wills

of a case for a husband or wife to receive,

the circumstances it was unreasonable that

so far as was necessary to provide for the

whether or not that provision is required

no provision was made for her maintenance.

proper maintenance and support of spouses

for his or her maintenance".

and children.

the widow or widower or civil partner can

The

ask the Court to determine what would be

undoubtedly unusual. Heather Ilott was the

reasonable and proper provision for him

only child of Melita Jackson. In 1978, at the

was

the

irrational

Over the next twenty or so years this was

Accordingly, circumstances

of

the

case

were


the barrister

13

age of 17, she fell in love with Nick Ilott. Mrs.

She had five children. They lived in a rented

1 Ch. 461.

Jackson considered that Nick would not make

home in Great Munden, which, despite its

no other claim upon a parent's generosity,

much of his life and strongly disapproved

name, has fewer than a hundred inhabitants,

surely any rational parent would say "Let

and sought to break off the association. So

in a fairly isolated part of Hertfordshire. She

bygones be bygones, I must make at least

Heather eloped with Nick and they were later

was not in paid employment. There was no

a reasonable provision for my child".

married.

This led to a lifelong separation

bus service to the nearest town and she did

have surely moved at least a little way

between mother and daughter. There were

not drive. The family had to live on a mixture

from the harsh and unreasonable approach

attempts at reconciliation. In relation to their

of Mr. Ilott's earnings and Social Security

summarised in Boughton -v- Knight.

failure, there were faults on both sides. The

benefits.

last attempt, in 2000, involved Heather Ilott

conclusion that not only was the failure by

first apologising orally to her mother and

Melita Jackson to make any provision for her

JOHN M. COLLINS

then at her mother's request submitting a

daughter unreasonable, but in the particular

Zenith Chambers

written apology for approval by her mother's

circumstances she did need provision for her

10 Park Square

solicitor. That reconciliation was short-lived,

maintenance.

Leeds

The district judge came to the

because Mrs. Jackson took umbrage because

LS1 2LH

Heather had named her youngest child

It is therefore not a case where judges were

after the child's great-grandmother, Mrs.

simply being asked to re-distribute estates

Jackson's mother-in-law. So she refused to

because they thought that the deceased

have anything more to do with her daughter

made the wrong choice.

or her grandchildren and would not even

situation arose that the deceased had failed

allow her grandson in her house.

to make provision that after investigating the

It was where a

whole circumstances the Court came to the As Mr. Aspden says, Melita Jackson made

On the other hand, if there is

conclusion ought to have been made.

her will in 2003, leaving her most of her estate to three charities and nothing at all

There may well be

to her daughter or grandchildren. She set

cases

out in a written statement and in a letter

when a child is or can

to her daughter why she was making no

claim to be in need

provision. Had that statement and the letter

of further financial

been a truthful and accurate account of her

provision, a testator

reasons, no doubt it would have carried great

would

weight with the Court. But the district judge

be justified in not

found that it was not accurate or truthful.

making that provision

Furthermore, she gave no explanation of why

because in all the

she chose the three charities, since she had

circumstances

shown no interest in any of them or their

proper approach is

causes during her life. So the position was

that the child should

that there appeared to be no rational purpose

make greater efforts

in Melita's bequests and the only inference

or indeed that there

could fairly be that she had made them out

is someone else who

of spite.

would benefit from

where,

be

even

held

to

the

the estate whose need That, however, would not have been sufficient

is equal to or greater

to enable Heather Ilott to succeed. But the

than that of the child.

district judge looked at all the circumstances.

That was the position

He found that because of a back problem

in the leading case of

her husband was not able to work regularly.

Re Coventry [1980]

3rd June 2011

We


14

the barrister

Appealing School Exclusion – the hard sell For a child, permanent exclusion is perhaps the most severe punishment they could face without becoming engaged with the criminal justice system By Adam Porte, Co-Director, School Exclusions Project

I

n

the

aftermath

of

the

riots

and looting that spread across the

country

in

August,

a significant amount of costly and time-

incident several days after it supposedly

consuming litigation.

took place, at which point they were allowed to confer whilst giving their statements. The

many

politicians and commentators cited

I am currently the co-director of the School

excluded child was given no opportunity

a breakdown in discipline at school

Exclusions Project, alongside fellow BPP

to provide a written statement explaining

as a major contributory factor. A

student, Natasha Silverman. The group

what, if anything had happened. At the IAP

child needs structure, must understand that

was founded as a BPP Law School pro-

hearing, we were able to rely on evidence

actions have consequences and ought to learn

bono project in 2009 by directors Zach

following a full medical examination, the

to respect authority. As a teacher for 4 years

Esdaile and Natasha Silverman, working

results of which led the doctor to conclude

I know from experience that there is little

with Stephen Broach, a barrister at Doughty

that the boy’s physical stage of development

more frustrating than a student constantly

Street Chambers who continues to chair the

rendered him unable to have carried out

questioning a punishment imposed for a

Project. The Project operates in a way that

the sexual act he allegedly committed,

breach of the school’s behaviour policy. As

will be familiar to many barristers who have

information that the school had failed to

a result, a child’s right to appeal against a

experience with the Free Representation

consider when making their decision.

sanction imposed upon them by their school

Unit. Every academic year the Project

suffers from being something of a hard sell.

recruits around 30 BPP students to act as

Without the existence of IAPs armed with the

The very notion of questioning the actions of

representatives and advocates for excluded

power to overturn exclusion and reinstate,

a school smacks of an erosion of respect for

children at Governors’ hearings and the

the child and his family would have had no

hard-working teachers and carers.

current Independent Appeal Panel hearings

other accessible vehicle for challenging the

(the Panels which will lose powers to order

decision of the school, nor would they have

The Education Bill 2010, currently before the

reinstatement of excluded children if the

achieved the fair hearing and ultimately

House of Lords, purports to solve the issue

present Bill is enacted). Barristers at Doughty

the justice they deserved. If the Education

of ill-discipline in school by giving further

Street give up their time and work with

Bill passes into law, children would be the

powers to teachers and heads. Amongst

Project directors to provide thorough training

only section of society deemed unworthy

the amendments to existing legislation is a

and assistance to volunteer representatives.

of receiving a fair hearing before being

fundamental alteration to a child’s parents’

These student volunteers have complete

punished for an offence.’

ability to appeal against the child’s permanent

responsibility for their client’s case, from

exclusion from school.

organising a convenient date for any hearing,

Volunteer

drafting submissions and preparing bundles,

represented a young child who had been

No discussion of a sanction as severe as

to presenting their case and cross-examining

unlawfully excluded from their Primary

permanent exclusion can be based on the

at the appeals.

School:

immune from mistakes. The right to appeal

The importance of the work carried out

‘The role of an appeal is not to undermine

a permanent exclusion is not something

by the School Exclusions Project is best

the authority of head teachers and schools.

designed to undermine head teachers nor

demonstrated by testimony from some of its

Nonetheless, it is important to bear in

is it one that encourages our young people

volunteers. Co-Director Natasha Silverman

mind that sometimes head teachers and

to rail against any punishment imposed by

explains a recent case of hers:

schools get it wrong, and my last case was

Sophie

Conway

recently

premise that any school is infallible and

a clear example of this. The case involved

teachers. Instead, it is an admission of the magnitude of the sanction, that it has been

‘I recently represented an 11 year old boy

representing the parent of a 5 year old

imposed as a matter of last resort, and

who had been permanently excluded from

child who had been permanently excluded

that society must be satisfied that the right

school for allegedly carrying out a serious

from his primary school and sent to a

decision has been made. Unfortunately, the

sexual assault. The school’s decision to

Pupil Referral Unit some distance from his

suggested changes to the appeals process

exclude was largely based upon the witness

home and friends.

are unnecessary, unfair and likely to create

statements of two girls who reported the

and details of the exclusion worked in our

The facts of the case


the barrister

15

favour demonstrating that the head teacher’s

school, he or she should be reinstated – a

Yet despite this guidance, exclusion statistics

decision to permanently exclude had been

presumption consistent with the common law

show that students with a statement of special

unlawful. That is not to say that this case

expectation that if an act is unlawful the law

educational needs are 8 times more likely to

was easy to win, indeed, we lost at the

should return the position to the status quo

be permanently excluded than other children.

Governors’ hearing. We eventually managed

ante.

Students eligible for free school meals are 4

to get the permanent exclusion overturned

times more likely to be permanently excluded

and removed from the pupils file at the IAP

In

stage.’

permanently excluded from school. Of the 5,740 exclusions1, only 510 ever lodged an

The most common reason for permanent

Since its inception the Project has provided

appeal, of which 470 were actually heard.

exclusion (29% of the total) was persistent

trained representatives for dozens of cases

Thus of all students excluded, only 8.2% ever

disruptive behaviour. What is clear from

where parents and children would otherwise

had an appeal against their exclusion heard

the statistics is that permanent exclusion

have been left to fight an appeal with no

– a statistic which points to how daunting the

disproportionately affects ethnic minorities,

understanding or expertise in the law that

prospect of appealing an exclusion is for very

students with special educational needs and

governs exclusion or the procedure for these

many children and families. 24% of all appeals

those from the poorest backgrounds.

hearings. The success of the Project has led not

in 2009/2010 found in favour of the child,

only to its expansion, but also the creation of

and of the successful appeals, 26.8% ordered

The Coalition’s case for a change in the law

similar pro-bono groups at other law schools

that the child be reinstated – this despite

governing school exclusions is clear and

across the country. The Project is particularly

the presumption in favour of reinstatement

unequivocal; the right to appeal exclusions

important because legal aid is not available to

under the current statutory guidance. In real

to a Panel which can order reinstatement

secure representation in exclusions hearings

terms 26.8% translates to 30 students who

undermines the authority of the school and its

– only for judicial review challenges when an

were reinstated to school after a permanent

staff. Before becoming Prime Minister David

exclusion is upheld on appeal, when the bar is

exclusion in 2009/2010. That amounts to

Cameron said:

of course set very much higher.

0.52% of all permanent exclusions for last

2009/2010

5,740

children

were

than their peers.

‘The problem doesn't lie with teachers - it

year.

lies with the rules and regulations which stop

For a child, permanent exclusion is perhaps

teachers imposing proper discipline’.

the most severe punishment they could face

Statistics demonstrating that over 90% of

without becoming engaged with the criminal

excluded children never had that exclusion

justice system. It is a sanction so potentially

tested by a fair and independent body are

In support of his party leader, the now

devastating that it is rightly characterised

potentially troubling. My own experience as

Secretary of State for Education, Michael Gove

by the statutory guidance as a matter of last

a teacher taught me that disciplinary matters

stated:

resort when all other options have failed or

are an inexact science, and that no school is

are inappropriate. The scale of the sanction

infallible when it comes to imposing sanctions

‘At the moment teachers are, in many

is such that the law has in place checks and

against their students. The statistics that

circumstances, not excluding pupils who

balances to ensure that the decision to exclude

explain what type of student is excluded,

should be excluded because they fear precisely

permanently was lawful and correct. Initially

and the offence for which the sanction has

that their decisions will be overturned on

an exclusion must be put before a panel of

been imposed are even more concerning.

appeal. A quarter of exclusions are overturned

school Governors, and should they uphold

In 2009/2010 78% of children that were

and then half of those pupils go straight back

the exclusion, parents and children may then

permanently excluded were boys, and over

into schools where they've been responsible

appeal to an Independent Appeal Panel (IAP).

half of all exclusion occurred at age 13-14,

for all sorts of behaviour…The whole system

The IAPs hear the appeal of the excluded child

the year prior to students commencing

is configured in order to ensure that head

and the case for the exclusion by the school

their studies for GCSEs. Students of Black

teachers feel there's a strong disincentive to

and currently have the power (as expressed in

Caribbean origin are 4 times more likely to be

exclude.’

statutory guidance issued in 2008) to uphold

excluded than their white peers.

the exclusion, overturn the exclusion and

It is important to note at this stage, that

order the child be reinstated to the school

The statutory guidance that governs the

Mr Gove has confused the statistics for

or overturn the exclusion without ordering

exclusion of children states at paragraph 64:

exclusion and reinstatement. Mr Gove made

reinstatement (this last option only to be

‘Other

this statement in the spring of 2008, and as

exercised in exceptional circumstances). The

circumstances,

presumption under the guidance therefore

permanently

is that if a child is wrongly excluded from

statements.’

than

in

the

most

exceptional

schools

should

avoid

such would have been using the statistics for

excluding

pupils

with

2006-2007. Without descending into further number crunching the figures show that


16

the barrister

2.76% of exclusion were overturned, not the

an effective alternative remedy and as

imperative. All readers of this article are

25% suggested by Mr Gove, and only 1.15%

such the High Court could be invited to

urged to contact their MPs and seek to

of all exclusions resulted in reinstatement for

consider the lawfulness of the exclusion and

persuade them that the proposal to neuter

the child.

quash the decision if unlawful, which would

IAPs contained in clause 4 of the present

normally lead to reinstatement. It would be

Education Bill should be withdrawn.

The net result of Conservative pre-election

ironic but not surprising if the government's

policy is an Education Bill which is likely

attempts to reduce the rights of excluded

Adam Porte

to be granted Royal Assent later this year.

children actually led to increased litigation

Co-Director, School Exclusions Project

The relevant provision is clause 4 of the

and cost in this highly contentious area.'

Bill which will amend section 52 of the

1 Does not include academies

Education Act 2002. As a result of the

Permanent exclusion from school is a severe,

change the IAP will cease to exist, and will

damaging

instead be replaced by a review panel, the

sanction that is rightly treated as an act of last

constitution of which is as yet unknown. A

resort by schools. In any other environment

review panel will have the power only to

the very suggestion that a child’s right to

uphold the exclusion, recommend that the

appeal such a sanction should be fettered

school reconsider the exclusion or quash the

would be rightly met with scorn. A criminal

decision and direct the school to reconsider

justice system based on the assumption that

its decision. Removing the power of the panel

the state always made the right decision, and

to reinstate essentially neuters it as a body

that any appeal was an affront to that system

that checks the validity of exclusions.

would be unthinkable. Yet for many young

and

potentially

life-changing

people, permanent exclusion is a far harsher Whilst decisions of the present IAP can

punishment than could be imposed by a

potentially be judicially reviewed, in the

youth court for conviction for petty crime.

vast majority of cases the IAP’s decision is accepted as the final step in any appeal.

Misrepresented

The new review panel’s lack of the practical

children excluded for knife crime being

power to order reinstatement is likely to

reinstated must not be allowed to cloud

lead to significant litigation as parents and

the debate. That of the small number of

children seek a ‘fair trial’. If parents and

exclusions that were appealed, just under a

children believe that the review panel system

quarter were overturned demonstrates that

does not offer them access to justice they will

schools and heads are not infallible – but it

seek it through judicial review, a far more

does not demonstrate that the present IAP is

expensive and time-consuming process than

generally riding roughshod over the judgment

the current IAP procedure. Additionally, such

of head teachers. It must be recalled that the

legal challenges could add further distress

odds of an exclusion being appealed and

to the child at the centre of the dispute.

subsequently resulting in a managed move or

Stephen Broach, who chairs the School

reinstatement are very long; most exclusions

Exclusions Project and acts for many families

are never appealed, and of those that are the

challenging

school

exclusion

statistics

and

stories

of

decisions,

majority fail. To further reduce the ability

predicts that the removal of reinstatement

of any child to have their exclusion tested

powers from review panels will lead to an

by an independent panel with the power

increase in applications for judicial review:

to reinstate creates a system that is unjust, unfair and counter-productive.

'In urgent cases where a parent is seeking reinstatement for their child it will be

Fighting for a child’s right to appeal exclusion

arguable that the panel does not constitute

may be a hard sell but it is one that is


the barrister

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18

the barrister

“What should we do with all the Young Lawyers?” Adam Chaffer, a MLaw (BPTC Exempting) student responds to Gerard McDermott QC and Leolin Price CBE QC articles which appeared in the previous two editions of The Barrister.

T

he vocational training

excellent ideas within the profession of how

Solicitor Exempting Degree to conduct case

to become a barrister is

to deal with the current pupillage situation. It

work for the general public. Although I have

not unlike a mountain

is entirely justifiable for Mr Price to describe

not had the opportunity to experience this

climber attempting his

the situation as, ‘unfair, unmanageable and

I have heard nothing but good reviews for

first climb. He like a

disgraceful’ I would tentatively agree with

the work which is conducted in the office.

future barrister starts

his analysis of the current circumstances.

These advice centres run by pupil barristers

at the bottom and looks up; often in awe at

will have the added benefit of improving the

what is in front of him. The climber starts

While Mr McDermott’s idea of utilising bar

public perception of the bar. These measures

the climb slowly, the law student at this stage

school graduates as legal assistants is a

will allow the will allow pupil barristers to

will be working through his examinations

fine and noble concept, it runs the risk of

meet the requirements of pupillage but also

at university and the bar school. At the

creating a pseudo profession for graduates.

allow junior counsel the flexibility of not

halfway stage the climber and the bar

The work of these legal assistants can easily

been’ joined at the hip’ with their pupil.

student can nearly see the top. However

be conducted by pupil barristers. This makes

the mountain at this stage becomes much

me more inclined to support the ideas set

There are two further proposals which have

more challenging with thinner air and a

down by Mr Price. The scheme to have a

the potential of improving the ideas of Mr

more perilous climb. The same can be said

‘professional obligation that every junior

Price. At present a graduate of bar school

for the climb to pupillage for while there are

counsel of five years standing should have

has five years to seek pupillage before he is

opportunities for pupillage the numbers are

at least one pupil at any time would greatly

effectively time barred. I propose in place of

small compared to the volume of applicants.

increase the practice at the bar’ and at the

this allowing an unlimited extension period

On pushes the climber and the bar student;

same time remedy the current pupillage

for applicants who are ‘actively engaged in

if they are lucky they will reach the summit.

situation.

legal practice’. By that I mean those who are

For the climber it is the just reward of having

working in some legal capacity such as legal

conquered the mountain while for the pupil

This idea could be coupled with various

advisors, case workers and paralegals. This

barrister it is the reward of being made a

measures to further enhance the quality of

unlimited extension would stop when the

tenant in chambers and been able to practice

the future barristers. Such measures could

applicant is no longer ‘actively engaged’ and

the vocation which they have so patiently

include; advocacy master classes, judicial

would need to be coupled with the relevant

waited for.

marshalling

requirements for Continued Professional

and

short

term

placement

in solicitors firms. This enrichment will

Development

and

perhaps

fresher

Speaking as a student on the BPTC Exempting

provide bar gradates with a more rounded

workshops.

Degree (the integrated Masters in Law and

view of the profession as they undertake

Bar Professional Training Course Degree

pupillage. Furthermore pupils should be

The final suggestion is not a proposal rather

at Northumbria University) and therefore

actively encouraged to either set up or join

a note of warning. While it is probable that

hopefully at the very start of my professional

local community legal clinics or advice

in the coming years there will be a slight

career; it is refreshing to see that there is

centres; to provide free legal advice to the

drop in the number of university applicants

genuine concern in the profession as to what

general public. The model example of this

with the increasing tuition fees I doubt there

should be done with all the ‘young lawyers’.

can be seen at Northumbria University

will be such a drop of applicants at the BPTC

Having read the articles of Mr McDermott

where the Student Law Office allows third

providers. At the same time any attempt to

and Mr Price it is evident that there are some

and fourth students enrolled on the LLB

limit the number of places on these courses


the barrister

must be met with a degree of caution. The proposed method by the Bar Standards Board for an aptitude test is intrinsically wrong. The

19

Engineering Expertise

test does not show whether a person will make a good barrister it merely shows that the applicant is good at answering multiple choice questions. A more appropriate system is to have interviews for bar school places chaired by a combination of staff at the BPTC providers and practicing barristers. This

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would allow applicants to demonstrate skills which a multiple choice test would never demonstrate.

Mr Price formed the view that the profession has sleepwalked into this present situation. But sleepwalkers will eventually wake up. Now seems to be an appropriate time for the Bar to do just that. I urge the readers of this article who are in a position to make a

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6 Actors' Benevolent.pdf

difference to this situation to do so before it deteriorates even further. These changes can be done, they should be done and I trust and

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

hope that those who can will ensure that they are done.

Adam Chaffer …a helping hand for actors since 1882…

4th Year MLaw (BPTC Exempting) Student Northumbria University

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20

the barrister

Procure Co: Have you got the time? How well placed are you to make your new venture a success? Helen Ford, Managing Director of Bar Squared the author of LEX Chambers Management, considers some of the requirements.

Y

ou have woken to behold

have miscalculated the case load but each

information. i.e. the number of hours spent

the inviting view of the

members’ income is then compromised to

covering police station work, preparing

new

cover the payment of fees for the over

bundles and other overheads that form part

estimation of capacity.

of the litigation process, but what if you

legal

landscape.

You are considering the creation of a ProcureCo. You are sold on the idea

want to go it alone?

Solicitor advantage

of wresting the control and distribution

The advantages that solicitor firms have

Threat or benefit?

of work from solicitors currently pitted

over a Chambers led ProcureCo wishing to

Some would argue that it is already a

against you, and opening up fee negotiation

tender in competition are enormous. They

bit too late; that the recording of time

opportunities.

Having made the decision,

have, of course, done it all before and are

contemporaneously

how will the members of the ProcureCo avail

in possession of vital information to assist

paramount for some time. In 2008 the Legal

themselves of the business intelligence that

a successful bid.

The fee earners in a

Services Commission (LSC) and the Crown

will be required to formulate a competitive

solicitors firm are employed and required

Prosecution Service proposed changes that

tender for work? Need you do anything at

to comply with corporate dictates; one of

would enforce barrister time recording.

all?

should

have

been

You know roughly how much a case

which is the recording of time. In fact the

The information was to be maintained in

pays and how much you need to earn, so by

working life of a solicitor revolves around

a readily auditable format to demonstrate

covering enough cases the outlook is rosy

recording all time expended (in 6 minute

proper stewardship of public funds.

isn’t it?

blocks) whether productive or not, using a

by many as a threat, had these proposals

Seen

corporate software application.

been embraced, the information collated in

How many cases can you complete?

This allows the firm access to valuable

the years that have passed would have been

At the very least, you will need to know

business intelligence that a ProcureCo can

a valuable lever in negotiations with the LSC

how long it takes to undertake typical case

only dream of.

Not only can the firm

and now the Ministry of Justice as well as an

work and then calculate an hourly rate

analyse the amount of time expended by

asset in tendering processes, giving accurate

that can be used as part of the tendering

each fee earner but it can also collate time

and vital statistics with which to argue

process. You could divide newly appointed

spent by case and work type and calculate

against reductions in fees and the unfair

panel members current fees by an arbitrary

an accurate hourly rate based on PAYE

‘fat-cat’ perceptions that prevail.

average hourly working week to come up

and other corporate records held for all its

with a work rate and hourly remuneration

employees; fee earners, administrative staff

The holistic approach

value?

and partners alike.

The

key

to

assimilating

this

data

is

consistency. There are many and varied Is this really good enough? The resounding

In the current ‘typical’ Chambers business

time recording systems in use that include

answer is no!

model,

notionally

spreadsheets, emails, pieces of paper, notes

average number of hours casework takes to

recorded against particular items of work

scribbled as part of a telephone conversation

complete, it is impossible to determine how

to the extent that a fee note is produced for

as well as software solutions. Whilst these

many cases can realistically be completed

payment by Solicitors, very few Chambers

methods provide billing information and

within a contracted period.

employ a recognised central time recording

some reports on an individual barrister basis,

facility.

what is required is analysis that includes

If you can’t calculate the

You may say

that you will work as long as it takes

whilst

time

may

be

but time is both limited and precious.

groups of barristers covering different types

You may, of course, decide to involve

If your ProcureCo is to be a joint venture

of work. To work efficiently the ProcureCo

additional personnel to complete the work

with a firm or firms of solicitors, you may

needs to know how work rates vary amongst

you have contracted to undertake if you

be afforded access to some of this vital

members and it is only by having a single


the barrister

time recording system that this can be easily

assisting accountants in complying with

and accurately determined.

UITF40 requirements. Accountants are also

21

in the business of providing services on a By recording time centrally, a valuable

time-recorded basis so reports that reduce

repository of data is built that has many

the number of billable hours they take to

benefits to the individual, their chambers

prepare your tax should yield a reduction in

and the ProcureCo.

the fees charged.

Utilising a case

management system that has integrated time recording would therefore appear to

In addition to individual benefits, reports

be the way forward.

may be run by clerks and chambers administrators

bookings

and

case

information

is already created and held within case management systems such LEX. Members may record their time against case records (that have been created by their clerk) to analyse each case according to set criteria; type of funding, type of case, origin, type of client etc.

Remote access to the time

recording system is essential to ensure recording of time immediately. It’s all too easy to overlook a telephone conversation you may have had in the robing room prior to a hearing.

The availability of remote

time recording minimises ‘lost time’ - that quick piece of advice that you gave over the telephone.

You recall several days

later spending 5 minutes on the telephone and don’t bother billing for it.

If you

had been running a call timer that showed you had actually spent 25 minutes on the advice, would you be so willing to forget about it?

That 25 minutes can be easily

allocated to the relevant case and the time recorded, managed by the clerks for billing purposes, utilising notes created at the time, all of which reduces duplication of effort and eliminates inaccuracy as no re-keying is required.

Taxation advantages Amongst the many benefits of utilising a central time recording system is access to reports analysing your own billable hours and fees earned.

provide

analysis

by;

teams of barristers, types of work, funding

Does time recording pay? Diary

to

Calculation of work in

progress at tax year end is aided thus

types etc. all of which add to the business intelligence that is required.

Success or disaster? In conclusion, maintaining records of time taken to complete various types of work is a crucial tool in order that you tender effectively for work now and in future. If you are seriously considering tendering for work, you simply must start recording time expended as soon as possible using a central system.

The benefits

of doing so are clear, the

consequences

of

inaction - a recipe for disaster.

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news round up

22

the barrister

European Commission supports CEDR programme to boost the standard of mediation in Europe

The European Commission has agreed to support the Centre for Effective Dispute Resolution (CEDR) to run a mediation training project designed to help ensure a consistent high quality of standard in commercial mediation training provision across Europe, which is important given the new focus on using mediation to resolve business disputes in Europe as an alternative to costly litigation. The Mediator Skills Master Trainer Programme, which will run until spring 2012, will look at enhancing the ability and skill of mediation trainers in 10 different countries across the European Union. CEDR, known internationally for its leading mediation skills accreditation, was selected for funding by the European Commission to the deliver 10 three-day training sessions, where delegates of up to eight mediation trainers will received advanced skills trainings. To this end CEDR is considering all requests from local Alternative Dispute Resolution (ADR) organisations across selected EU member states or accession countries that wish to work with CEDR and benefit from having the locally qualified advanced trainers. This programme follows the implementation of the EU Directive on Cross-Border mediation in spring 2011 and seeks to complement and assist the on-going development of knowledge, uptake and use of mediation across Europe. As one of its charitable foundation activities, CEDR has created the ADR Trainers Network, a forum for sharing ideas about current mediation practice internationally, innovations in the field of ADR training delivery and developing practice standards for ADR trainers worldwide. CEDR hope that its new partners in Europe will join the regular exchanges about practices worldwide, to learn from each other and thereby fostering better and more consistent international training standards. James South, Director of Training at CEDR, said “As mediation develops across the EU, it is crucial that the training of mediators is of the highest quality to ensure that those mediating commercial disputes do the very best job for disputants. With over 20 years of experience in training mediators we are delighted to be supported by the European Commission to help bring our knowledge and methodology to provide the most effective training for mediators in new jurisdictions.” Organisations wishing to qualify for this programme, must be: • from an EU member state or accession country • focussed on commercial mediation and ADR • active in training in ADR in their local jurisdiction • able to offer support for the delivery of the training including, up to 8 ADR trainers as participants, logistical support, the training venue and refreshments, at no cost, to host the training which would require a plenary room big enough to host the full group and two trainers and one smaller room which can accommodate 6 persons. Those ADR organisations interested in taking up the free 3-day Train-the-Trainer course from CEDR should email dkershen@cedr.com with a short background of your organisation and its activities. Note this project is limited to one organisation per country and is limited to 10 countries only.

Incoming Chair of the Criminal Bar Association: The Criminal Bar is Vital to Ensuring Justice Max Hill QC, began a year-long term as Chairman of the Criminal Bar Association, which represents criminal barristers in England and Wales, has sent a stark warning to the Government about the long-term effects of legal aid cuts. In a rallying call to criminal barristers, he has warned that if legal aid cuts cripple the criminal Bar, it will be almost impossible to restore. Max Hill QC, whose practice includes prosecuting high-profile terrorism trials from 18 Red Lion Court, said: “Criminal barristers play a vital role, both prosecuting and representing people charged with criminal offences, in the public interest. We operate on the frontline to ensure that our justice system works efficiently, effectively and most importantly, fairly for all involved. It is a profession filled with committed, hardworking individuals, comprising dedicated public servants as well as entrepreneurial privately funded practitioners, who work for clients all over the world. “Legal aid cuts and the new Quality Assurance Scheme for Advocates (QASA) represent the immediate landscape for my year as Chairman. “Tough times are undoubtedly ahead for

Law Society ramps up pressure on Government as legal aid cuts leave immigration clients stranded The Law Society is extremely concerned to hear of the closure of the Immigration Advisory Service which has gone into administration . This closure is another crushing blow for the provision of legally aided immigration advice which is already threatened by severe cuts arising from the Government's proposed reforms of legal aid funding.

the criminal Bar. But rather than allowing these issues to divide and depress us all, my mission must be to raise our chins from the floor. I have one key message for anyone who will listen: you can destroy the publicly funded Bar if you want, but you will want it back when it is too late to recover what you have lost.

Operating a national network of 14 offices plus several outreach sessions the IAS is responsible for a significant proportion of both asylum and non-asylum immigration work in the UK. Employing more than 200 specialist staff, IAS handled some of the most complex immigration cases in the UK. Its closure will leave thousands of clients, many of whom are especially vulnerable, without access to their files, advice or representation. In many cases impending hearings before Immigration tribunals will be thrown into doubt. In the north of England the position will be particularly dire - IAS are responsible for 7,500 matter starts in Yorkshire alone. Whether other providers will be able to absorb such a large volume of cases is highly questionable.

“Frankly, it is puerile to dismiss our

Commenting on the news that the Immigration Advisory Service (IAS) has gone into administration Law Society Chief Executive Desmond Hudson said: 'While Parliament debates further cuts in legal aid, the news of the collapse of IAS has left thousands of clients stranded. This is the true impact of funding cuts. 'The Government claims that not-for-profit organisations like IAS will fill the gaps in public service provision. The fact that this is the second such collapse in the sector in less than a year shows that these claims are little more than wishful thinking.

and Wales provide consistently excellent

arguments as little more than financial self-interest, when the criminal Bar has for decades proven that it is efficient and exceptionally hard-working. We have nothing to fear from quality assessment; day-in, day-out criminal barristers across England advocacy. We are a profession with much to be proud of and everything to fight for. I will not shy away from the challenges which lie ahead.”


the barrister

23

news round up

Community sentences' role in containing prison growth questioned by new report As the population in custody in England and Wales hits a record high (1), a new report from the Centre for Crime and Justice studies (2) questions the role of community sentences in controlling or reducing prison numbers. Community sentences: a solution to penal excess? (3) argues that there are inherent limits to what community sentences can achieve beyond relatively minor adjustments to the numbers in custody. The long-term trend in prison numbers has been upwards since the 1940s, with growth accelerating markedly in the 1990s. Successive governments over a number of years have sought to manage prison numbers through the reform and promotion of community sentences. In practice, community sentences have failed to act as a like-for-like replacement for short term prison sentences. The report also finds that the emphasis on tougher community sentences may have contributed to sentencing inflation, with less serious offences being subject to higher tariff sentences compared with a decade ago. The report follows the publication of an inquiry by the Justice Select Committee, which warned of the risk that community sentences were being used in place of lesser sentences, rather than as an alternative to prison (4). Among the key facts and figures highlighted in the report are: • The number of prison sentences handed out between 1998 and 2009 grew by a third.

• The number of community sentences imposed in the same period also grew, by 10 percent. • Suspended Sentence Orders - a sentence introduced in 2005 and intended to be used in place of a prison sentence - appear to have been used mostly as an alternative to community sentences and fines rather than to prison. • 2,000 (three percent) fewer short-term prison sentences (under one year) were imposed in 2009 compared with 2004. This might indicate that reforms to community sentences helped to control the predicted growth in short-term prison sentences. However, the scale of increase in short-term prison receptions that preceded these reforms was left unaddressed and remains largely unchanged. Helen Mills, the report author, said: `Over a number of years the greater use of community sentences has been a preferred strategy of government ministers to control, perhaps reduce, the prison population. This report highlights the limitations of such a strategy. At best community sentences have slowed the growth of short term prison sentences. It seems unlikely that community sentences will, on their own, offer a coherent means of controlling or managing a prison population almost double that of thirty years ago Contact: Richard Garside at The Centre for Crime and Justice Studies on 020 7840 6110 to obtain a copy of the report

Crime victims in Europe to get extra protection Britons who are victims of crime in another EU country will get a guaranteed level of support, Justice Minister Nick Herbert said. He announced that the UK would opt in to the proposed EU Directive on the rights of victims, so the Directive will also apply in the UK. 'The availability of support for victims in other European countries can vary hugely', Mr Herbert said, 'we need to ensure that victims’ rights are clear and consistent so that crimes are reported and criminals can be brought to justice.' Victims in fear for their safety will also be better supported, thanks to proposed new EU-wide protection orders. Currently, protection can vanish the moment a victim crosses a border. But the planned new protection orders will mean that measures to safeguard the most vulnerable victims can automatically follow them when they travel to another European country. This would mean that, for

example, a victim given a non-molestation order in one country, will be given a similar standard of protection in another EU country without having to go through lengthy and complex court procedures. Nick Herbert also said: “The UK is rightly seen internationally as a leader in the provision of support to victims of crime. The Government is committed to improving the effectiveness of support we provide even further. This Directive will help to ensure that Britons who become victims of crime when travelling in Europe are given the support they need. Coming into contact with the Criminal Justice System can be an intimidating experience at an already difficult time. When it happens in a foreign country with the barriers of language and different legal systems to overcome, it’s particularly important that victims are well supported.“

BAR COUNCIL AND CRIMINAL BAR ASSOCIATION VOICE QUALIFIED SUPPORT FOR COURTROOM CAMERAS The Bar Council, which represents barristers in England and Wales, and the Criminal Bar Association (CBA), which represents criminal barristers, have voiced a cautious welcome to recent proposals to allow film cameras into courtrooms for sentencing remarks. With the Prime Minister expected to announce moves to allow recording and transmitting sentencing remarks from courts, Peter Lodder QC, Chairman of the Bar Council, said: “The Bar is well aware of the increasing dominance of the broadcast and internet-based media in public life, and we offer a qualified welcome to these proposals. It is vital that the judiciary is consulted and that the welfare of victims, witnesses and jury members is taken into account. Any broadcasts must be in the public interest and in the interests of justice. “Public trust in the criminal justice system may be enhanced by the broadcasting of sentencing remarks. All sentencing decisions are

explained fully, but the full extent of the judge’s remarks is often unreported.” Max Hill QC, Chair of the CBA, said: “Criminal barristers have nothing to fear from increased public scrutiny, which can only demonstrate the quality and integrity of our profession. “We do, however, have reservations about the potential broadcast of the trial process itself. Extracts shown in isolation may give a biased impression of a long criminal trial in which the jury have patiently listened to weeks or months of evidence from both the prosecution and defence. We must be cautious about placing any extra pressure on victims and witnesses, or exposing jury members to undue external influence.”


24

the barrister

“There has got to be a better way than this“ How often do we ask ourselves, whether we would want to go through our current Court process, could we afford it or would we jump at the chance of resolving the issues which separation and Divorce throw up in a more constructive manner? By Graham Coy, Mundays Solicitors LLP

H

ow many times have

expensive and too painful and acrimonious.

Clients said this when,

rather than concentrating on arguing a case. There is no limit to the number of meetings.

eventually, they reach

Sadly, as lawyers we can do little about delays

Meetings continue until agreement is reached.

the

Court

in the Court process; they are beyond our

proceedings about their

control and with the reality of Government

one another in between meetings in cases

Divorce, their Children

cutbacks in expenditure, those delays will

of emergency or to ensure that everything is

or their finances?

only get worse.

on track for the next meeting. This avoids

Their view is often shared by their lawyers

What we do have within our power to control

increases the costs and sets couples yet

and even by the Judges who have to make

or at least influence are the cost involved and

further apart.

decisions where no agreement can be

the undoubted stress, pain and anxiety which

reached.

our Clients have to deal with.

e.g. counselors and therapists, accountants,

The answer to the question is “yes”, there is a

But how often, for example, do we as lawyers

better way and it is “Collaborative Law” and

take into account the research which has

this article will look at the nature and size of

shown that the second most stressful event

The process is not contentious in the way

the problem, what Collaborative Law is and

which any of us may ever experience,

Court proceedings are. It allows everyone

what it can offer.

including unemployment and imprisonment,

involved to look at the whole picture; in other

is Divorce. Only the death of a child or the

words, not just at “the black letter law”, but

death of a partner is worse.

to recognize and deal with the emotional

end

of

Lawyers only communicate with

the “tit for tat” correspondence that so often

Others can take part in the process,

pension experts, financial advisers, valuers

In 2009, there were 113,949 Divorces, in other words over 250,000 people were caught

and estate agents.

difficulties the couple are facing and the

up in the legal process. According to the

How often do we ask ourselves, whether we

turmoil which their Children are having

Court Service, nearly 100,000 Children under

would want to go through our current Court

to deal with. The Court system cannot do

16 were also involved in Court proceedings

process, could we afford it or would we jump

that; it was never designed to do so and is

started by one or other of their parents.

at the chance of resolving the issues which

ill-equipped to do

separation and Divorce throw up in a more

decisions where agreement is not possible.

To put this into some perspective, the total

little more than impose

constructive manner?

number of adults and children is more than

What Collaborative Law offers Clients can be

the populations of some of our largest cities,

Collaborative Law has existed in the U.S.A.

Southampton, Leicester and Newcastle for

since 1990 and in this Country since 2003.

instance. More alarming still is that this is

summarized as : •

Finding solutions which best meet

happening every year.

The concept is simple. At its heart are :

After a short period during which the Divorce

rate was falling, 2011 is showing signs of it

separate legal advice but agree at the outset

encourage

increasing again.

not to go to Court.

process themselves; as lawyers we love to try

their needs and the needs of their Children •

Clients have their own lawyers and

They and their Solicitors agree that

Achieving that without adopting the

polarised positions which Court proceedings Maintaining

control

over

the

If we accept that separation and Divorce are

if one Client does go to Court, both will have

and take control !

a fact of life, how can we as lawyers make

to find new lawyers.

that process as painless as possible for our

Negotiations take place only at a

only their self-respect but respect for their

Clients ?

series of “four way “meetings when both the

Partner as well, thereby allowing them to

Permitting our Clients to retain not

Clients and their lawyers are present. The

build a platform where they can continue to

Clients’ complaints about our current system

lawyers are present to assist and advise their

work together as parents for the benefit of

include that it takes too long, that it is too

Clients and work towards agreed solutions

their Children.


the barrister

25

The Collaborative process gives our Clients

psychiatrists, counsellors), amongst the media

But Collaborative Law can be an answer. It is

the opportunity to resolve the issues which

and amongst the public.

a better way.

which does as little harm to them and their

To a large extent both the Judiciary and

This is especially the case at a time when the

Children as possible and which allow them all

The Bar are now familiar as to what the

Courts are going to become more and more

to move on in their lives. It also saves them

Collaborative approach can offer. Increasingly,

clogged up with litigants in person, Judges are

significant sums in legal fees.

both are enthusiastic as to what it has to offer.

not being replaced when they retire or move

The media provided a lot of coverage when

on, Court lists are getting longer and Courts

Much of this is due to the success of

Collaborative Law was first taking off in this

are being closed.

Resolution(formerly

Family

Country but interest has now waned. As a

Law Association) in promoting its Code

result, when a couple are struggling to get to

Collaborative Law offers Clients the answer

Of

separation and Divorce present in a manner

Practice.

The

Resolution

Solicitors

5,700

grasp with the consequences of a relationship

to many of the problems the Court process

members and has responsibility for training

now

has

breaking down, not often enough does their

creates while at the same time offering them

Collaborative lawyers; so far about one third

list of options include Collaborative Law.

and their children the prospect of a brighter

of its membership have qualified to practice as Collaborative lawyers.

future. At one stage, the relatively small number of Solicitors who were Collaboratively trained

Collaborative Law should be the first stop

Collaborative practice is not easy, either for

did hamper its progress; for the process to

to helping Clients when they see us about

the Clients or the lawyers. For the practitioner,

work, each of the couple’s solicitors has to

separation and Divorce; it also lends itself

a whole new skill set is required but it is

be Collaboratively trained. By and large, if a

ideally to resolving other issues, such as

worthwhile both for us but most of all for our

Client wants to see a Collaborative lawyer, it is

negotiating pre-nuptial agreements.

Clients.

not hard to find one.

Neither is it a panacea; not every Client will

Some parts of the Country are now extremely

be found on Resolution’s website :

want to follow the Collaborative route and

well organised, practitioners are motivated

www.resoltion.org.uk

not every case will be suitable, e.g. where

and public awareness and interest are high

More information about Collaborative Law can

Clients do not want to negotiate realistically or where one is not prepared to make complete

However, the recession has had its effect

Graham is an experienced Family Lawyer and

disclosure of their assets. In those cases,

on Collaborative law’s development. Some

Partner in charge of a family team at Mundays

the Court process is the only route forward;

Solicitors still see anything but litigation and

LLP, Cobham, Surrey.

committed litigators need not fear extinction.

the Court as a threat to their practices and livelihoods.

Eight years after Collaborative Law came

Contacts:

to these shores, the questions have to be

Too often in the past, lawyers have been slow

asked, if Collaborative Law is such a positive

to react to change. Too often, change has been

Graham Coy, Mundays Solicitors LLP:

innovation, why is it not more widely used

forced upon us.

1932 590500

as a means to resolve disputes and has its development in this Country stalled?

graham.coy@mundays.co.uk If we do not wake up to the inadequacies of

www.mundays.co.uk

our current system and embrace new ways of There are a number of possible answers.

resolving disputes for our Clients, others will

Graham is the Partner in charge of the Family

and as lawyers we will be left behind.

Department at Mundays Solicitors LLP and has

Firstly, the label “Collaborative Law” really

specialised in Family Law for nearly 30 years.

does not go anywhere near describing the

Rightly or wrongly, the Divorce process in

He is very experienced in dealing with complex

process and what is involved. Having said

this Country does not have a high level of

financial issues, cohabitation agreements and

that, it may need either a moment of divine

public confidence. The Coalition Government

disputes, and pre-marriage agreements. In

inspiration or a deep pocket to instruct a

are considering reform of the Family Justice

addition, he has built up specialist knowledge

branding guru, to come up with something

system as a whole; wide scale reform is needed.

in dealing with disputes concerning children.

better!

If it is recommended, will the Government act?

Graham was one of the first family lawyers

At a time of deep cuts in public expenditure,

to become an accredited specialist with

Secondly, in order to succeed, a much greater

including in the “legal aid” budget and to the

Resolution (formerly The Solicitors Family

degree of awareness is needed; awareness

Court Service, there can be no grounds for

Law Association). He is a qualified family

amongst the Judiciary, amongst the profession,

optimism. Leaving our Clients to sort things

mediator, a trained Collaborative lawyer and

amongst

out for themselves is not the answer.

an accomplished advocate.

other

professions

(e.g.

doctors,


26

the barrister

Voluntarily Intoxicated Consent – Rape or Regret? Intoxication, whether through drink or drugs, in the context of the regulation of sexual conduct, presents highly contentious and controversial issues. It can be notoriously difficult to obtain a conviction as a result of drunken consent By Gary L. Walters LL.B. (Hons), PGCE (PCET) FE/HE (Dist.), Dip. Bus & Fin Lecturer/Tutor: LL.B., LL.M., M.Sc., B.Sc., and E-Learning Facilitator

O Introduction

has left the SOA 2003 wanting more from a

difficult to obtain a conviction as a result of drunken consent. In Donovan9 the

nly 6% of reported rapes result in a conviction1.

sociological aspect.

However from April – June

S.75 of the SOA 2003 creates two evidential,

not remember consenting or not which was

2006, 53% of prosecutions

rebuttable presumptions:

“fatal to the prosecution’s case” and hence,

were

in

“the complainant is to be taken not to have

it failed. In the same way that a driver who

securing a conviction for

consented to the relevant act unless sufficient

dies in a car accident when not wearing his

rape2. Obstacles that present themselves

evidence is adduced to raise an issue as to

seat belt is seen as contributing to his own

when deciding on cases of this nature

whether he consented, and the defendant is

death, it would appear to be the case that

are profoundly difficult to analyse. Upon

to be taken not to have reasonably believed

an intoxicated victim of rape is regarded as

discussing this issue with Felicity Gerry,

that

unless

‘asking for it’, to coin a (vulgar) phrase, in

Criminal Barrister, Felicity points out: “The

sufficient evidence is adduced to raise an

the eyes of some jurors. The complainant

essential question in many rape cases is the

issue as to whether he reasonably believed it 8” (emphases added)

may be considered to have aggravated her

successful

defendant’s assertion that this was regret not rape3” . This will be analysed during the consideration of the cases R v Bree4 , R v

complainant was so intoxicated she could

the

complainant

consented

own situation.

A number of circumstances (to be proven

R v Bree (and others)

Olugboja 5 R v H 6 , Donovan 7 , unreported

by the prosecution) are listed in s. 75(2)

In the case of R v Bree 10 the complainant was

and academic journals.

as triggering these presumptions; those of

a nineteen year-old student at Bournemouth

relevance are to be found in paras. (d) and (f):

University. Bree was a twenty five year old

“(d) the complainant was asleep or

man. Bree requested the company of the

If an act is carried out voluntarily, it is

otherwise unconscious at the time of the

complainant one evening. It was agreed both

done so without external force or pressure.

relevant act;

were inebriated but to different levels.

The Acts

Later, the complainant was so intoxicated it

This is a significant component of criminal

(f) any person had administered to

responsibility. In other words, a female

or caused to be taken by the complainant,

was noted she:

has voluntarily consumed alcohol with the

without

a

“could not remember very much about the

defendant. Under s. 1, Sexual Offences Act

substance which, having regard to when it

return journey, but accepted that she must

2003 (SOA 2003) a man is guilty of rape if

was administered or taken, was capable of

have been conscious as she walked home,

he engages in the non-consensual penile

causing or enabling the complainant to be

and she had all the necessary fobs, keys and

penetration of another’s vagina, anus or

stupefied or overpowered at the time of the

mouth (actus reus) and he has no reasonable

relevant act.”

passes which she used to gain entrance for them both 11”

The SOA 2003 has nothing specific to say

When they returned to the complainant’s

the

complainant’s

consent,

belief that the victim consents at the time (mens rea).

about those cases of voluntary intoxication

flat she was sick. It is at this point that the

It was this Act which provided a statutory

where the complainant remains conscious.

evidence conflicts. Bree contends she asked

definition of consent for the purposes of sexual

Bree is a significant case in English and

for shampoo so that her hair could be washed.

offences law for the first time in English and

Welsh law in this area. Failure to provide for

The complainant contends she was asked for

Welsh law. The SOA 2003 gives guidance to

voluntarily intoxicated consent is a massive

the shampoo. There is an unusual comment

jurors regarding decision making in terms of

legal issue, especially for jurors.

from Sir Igor Judge at this point:

the SOA 2003, the Sexual Offences Act 1956

Intoxication - fatal to a case

“There was no suggestion of any sexual

(SOA 1956) Act allowed, arguably, more

Intoxication, whether through drink or drugs,

autonomy for jurors but jurors needed more

in the context of the regulation of sexual

activity at this stage. The defendant was behaving unselfishly. 12”

direction in such serious cases. Failure to

conduct, presents highly contentious and

provide for voluntarily intoxicated consent

controversial issues. It can be notoriously

the presence or absence of consent. Prior to

This

could

well

have

the

opposite


the barrister

connotation. He may well have been cleaning

their drink has been ‘spiked’. As Finch &

the complainant in preparation for sexual

Munro state:

intercourse. It is a rather odd comment by the judge, and one that warranted, in the author’s view, more investigation. Conversely, it could have been a well meant gesture to a

“she should nonetheless retain responsibility for subsequent events, as she should have taken greater care. 16”

27

scenarios allows--and even requires--a more drastic interpretation: a drunken consent is not consent when the person is very drunk. Based on a distinction between factual and legal consent 19”

Wallenstein v Bree (decision)

friend who he may have been considering a girlfriend by this stage, however, as this was

It is an important indicator of how jurors

Wallenstein criticises Bree in that it did

not further probed, it may not be known.

think and whilst it is may only be one opinion

not apply the law to the facts. Voluntarily

By this stage the complainant was unconscious

amongst jurors; a person sharing it may be

intoxicated consent is not being addressed

by her account. Her next memory is of Bree

persuasive in drawing others to adopt the

sufficiently by the courts under s.74 in

between her legs performing cunninglingus.

same viewpoint. According to Bryden &

terms of not being restrictive enough to

At this stage she did nothing to dissuade

the facts of each case, in particular, Bree.

him, although this is not accepting that she

Lengnick this may lead to a judgment of the victim as a “norm-violating woman.17” In

consented. ‘Silence’ during sexual intercourse

other words the complainant is not regarded

to the common sense of the jury to ascertain

is not consent which was determined during

as raped in the traditional perception of jurors

the case of R v Olugboja during the 1956 act:

– that is to say she has not been violently

consent, is failing. The statistics seen earlier may be indicative of this 20. The comment

“Apparent acquiescence after penetration does not necessarily involve consent. 13”

raped by a stranger wielding a knife; instead

for concern regarding the issue of consent

she engages in mutual sociable activities such

in Bree is that the prosecution changed its

He then digitally penetrated her. She felt

as drinking alcohol with her acquaintance

position. It initially argued that the defendant

as though she was not in the room and the

and by virtue of this she is looked at less

engaged in sexual intercourse with the

next recollection was of him near her face

sympathetically by jurors.

complainant when she was unconscious,

Wallenstein argues that the rule of leaving it

which would have almost certainly been rape

asking her for a condom of which she replied she did not have one. Bree’s account is that

In the author’s opinion the most critical

(as, if proven, it would have triggered the s.

she asked him for a condom, and he said

analysis of the decision in Bree is by Shlomit

75 rebuttable presumptions).

he did not have one. She did not say no to

Wallerstein in “a drunken consent is still consent – or is it? 18” Wallerstein

sex. Could she have submitted as opposed to consented? Olugboja was found guilty of rape and appealed, arguing: “that rape required that the prosecutor

recognises that the court

has

made

should prove that the girl's submission

progress in stating

should have been obtained by force or fear of force. 14”

drunken

consent

is

consent,

The Court of Appeal rejected this. In terms of submission equating to consent, Dunn L.J stated that the woman concerned did not in fact consent: she may have submitted to Olugboja but she did not consent. Brief penile penetration ensued by Bree but he stopped as she was concerned about unprotected sex. If this is the case then she would appear to have had a degree of capacity to make decisions. Section 74 of the 2003 Act provides: “...a person consents if he agrees by choice, and has the freedom and capacity to make that choice. 15”

that,

although still

the

fact

remains

that

consent

before

unconsciousness begins. This principle ‘disappearing

consent’

was

not,

in

Wallenstein’s

view,

applied

Bree.

There

in are

many views on how the

court

should

approach voluntarily i n t o x i c a t e d complainants

in

Academic Input

regard to consent.

According to research carried out by Finch

Wallerstein goes on

and Munro into jurors’ attitudes to intoxicated

to suggest Bree did

complainants, when women engage in heavy,

not go far enough: “s.74 of the Sexual Offences Act 2003 which governs these

voluntary drinking, some jurors consider that they have aggravated the crime, even when

Highways & Traffic Safety Ltd

Paul Fenton MITAI, MIHIE, DipASM, MCIHT, MSoRSA Independent Forensic Collision Investigator, Road Safety Engineer & Auditor

may

disappear

of

PAF

PAF has been established since 1995 and is a well respected consultancy that provides independent expert advice and support to the legal profession, insurance industry and highway authorities. Paul Fenton, the Director, has the benefit of having served as a Metropolitan Police Collision Investigator as well as working in both the public and private sector including local highway authority, the Highways Agency and consultant engineering organisations. Services include:  Forensic Collision Analysis & Investigation  Collision Reconstruction  Scene Investigation  Collision 3D Animation  Locus Reports  Vehicle Examination  Conflict Studies  Road Safety Audits & Assessments  Investigation of Non-Compliance of Highway Design  Road Safety Audits & Assessments The Old Vicarage 5 Ancliffe Lane Bolton-le-Sands Carnforth Lancashire LA5 8DS

Tel: 07775 766454 Email:info@paf.co.uk www.paf.co.uk


28

the barrister

Don’t do a Dougal

Journals

“Sexual Offences Act 2003 s.74”, Office of

the

Bryden, D.P., and Lengnick, S., “Rape in the

Public Sector Information

complainant the prosecution changed its

Criminal Justice System”,1997, 87 Journal of

9 Supra, n.7

position due to the complainant’s lack of

Criminal Law & Criminology p.1

10 Supra, n.4

However

on

cross-examination

of

11 Supra, n.4 at para.5 p.133

memory due to drink. It is contended by the author, and by Wallenstein, that this was out of

Finch,

E.,

and

Munro,

V.E.,

“Juror

desperation and the concern from the Crown Prosecution Service that another Dougal 21

stereotypes and blame attribution in rape

12 Ibid, at para.7 p.133 13 [1981] 73 Cr App R 344, Dunn LJ at p.351

cases involving intoxicants: the findings of a

14 Supra,n.13 at page 331

would take place. This problem was later resolved in the case of R v H 22 where it

pilot study”, 2005, Vol.45(1), British Journal

15

of Criminology, p.25-38

ukpga_20030042_en_5#pt1-pb20-l1g74

http://www.opsi.gov.uk/Acts/acts2003/

“Sexual Offences Act 2003 s.74”, Office of

was accepted that the principle of consent disappearing just before unconsciousness

Reed, A., “Rape and drunken consent”, 2007,

Public Sector Information, site accessed

begins, was valid. Wallenstein articulates well

Criminal Lawyer, p.2

22.03.10 11:52 16 Finch E., Munro V., “Juror stereotypes

the question of this article with the following: Wallerstein S., “A drunken consent is still

and blame attribution in rape cases involving

“In any case, the message is clear: a drunken

consent – or is it? A critical analysis of the

intoxicants: the finds of a pilot study” 2005,

consent 'does not count'. In choosing to have

law on Drunken Consent to Sex following

British Journal of Criminology, 45(1), 25-38

sex without having prior (sober) consent, a

Bree”, Journal of Criminal Law, 73 (318) p.1

at para. 31

man has sex without consent, which amounts

17 Bryden, D.P., and Lengnick, S., “Rape in

to the actus reus of rape. This places the man

Internet

at risk of being prosecuted, subject to a later

Home

decision of the woman not to complain, and

addressing the justice gap, http://webarchive.

highbeam.com/doc/1G1-20383834.html

the decision of the prosecution whether to prosecute. 23”

nationalarchives.gov.uk/+/http://www.

point (6), published 22.06.97, site accessed

homeoffice.gov.uk/crime-victims/reducing-

21.03.10 17:04

crime/sexual-offences/index.html

18 Wallerstein S., “A drunken consent is still

the Criminal Justice System”, 1997, 87 J. Office,

Supporting

Victims

and

Conclusion

Criminal Law & Criminology, 36 http://www. at

consent – or is it? A critical analysis of the

The public and parliament need to move with

Crown

http://www.

law on Drunken Consent to Sex following

the times, tempora mutantur nos et mutamur

cps.gov.uk/publications/equality/vaw/vaw_

Bree”, Journal of Criminal Law, 73 (318) p.1

in illis. No doubt improved sociological

strategy_annex_b.html#a02

19 Ibid, p.1

Prosecution

Service,

education of what might happen if men

20 Supra, n.1, n.2

have sex with women that are intoxicated,

http://www.opsi.gov.uk/Acts/acts2003/

21 Supra, n.7

especially those that do not overtly consent.

ukpga_20030042_en_5#pt1-pb20-l1g74

22 [2007] EWCA Crim 2056

A simple caveat to any man considering in

“Sexual Offences Act 2003 s.74”, Office of

23 Supra, n.18 “on public policy reasoning”

engaging in intercourse with an intoxicated

Public Sector Information

24 Reed, A., “Rape and drunken consent”,

woman is simply not to do so. The law has and

case comment on Bree, 2007, Criminal

will continue to have difficulties dealing with

Lawyer, p.2

such issues but unless a contract is drawn up

1 Home Office, Supporting Victims and

for the two parties before a night out, these

Addressing

problems will re-present themselves.

webarchive.nationalarchives.gov.uk/+/http://

In trying to make more sense of the law on

www.homeoffice.gov.uk/crime-victims/

voluntarily intoxicated consent, Alan Reed

reducing-crime/sexual-offences/index.html

encapsulates the feeling well: “Arguably the true meaning remains as opaque as ever.24”

2

The need for reform, the author asserts, is

publications/equality/vaw/vaw_strategy_

stronger now post-Bree and the SOA 2003,

annex_b.html#a02

than ever before.

3

the

Justice

Gap,

http://

Crown Prosecution Service, Rape and

Sexual Offences,

Felicity

http://www.cps.gov.uk/

Gerry,

Criminal

Barrister,

Specialises in Sexual Offences, 36 Bedford Cases

Row Chambers, London

R v Bree [2007] EWCA Crim 804

4 [2007] EWCA Crim 804

R v Dougal [2005] (unreported)

5 [1981] 73 Cr App R 344

R v H [2007] EWCA Crim 2056

6 [2007] EWCA Crim 2056

R v Olugboja [1981] 73 Cr App R 344

7

Legislation

November 2005

The Sexual Offences Act 1956

8

The Sexual Offences Act 2003

ukpga_20030042_en_5#pt1-pb20-l1g74

Unreported,

Swansea

Crown

Court,

http://www.opsi.gov.uk/Acts/acts2003/

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


29

the barrister

Under the Spotlight: Employers’ Liability Leading barristers from Atlantic Chambers delivered a fascinating insight into topical issues concerning employers’ liability during a seminar held in Liverpool recently. control, with Swift J finding the Defendant did not owe the Claimant a duty of care under the 2005 Regulations and she refused him entry to the property in her capacity as an occupier, not as a person controlling the way he carried out his work, with that right belonging at all times to the contractor as his employer. During the course of his presentation Mr Pickering directed delegates to the HSE’s Brief Guide of the Regulations, which sets out a simple hierarchy for managing and selecting equipment for work at height. The Guide states duty holders must avoid work at height where they can, use work equipment or other measures to prevent falls where they cannot avoid working at height; and where they cannot eliminate the risk of a fall, use work equipment or other measures to

O

minimise the distance and consequences of a

ver 80 solicitors from

in relation to work done by an employee

across the Northwest of

of theirs (Regulation 3(2)(a) and “(b) any

England

the

person under his control to the extent of his

event,

control”,” said Mr Pickering, “which suggests

featuring personal injury

that the crucial control is over the person, not

specialists

over the work.”

attended

CPD-accredited

Pickering,

Charles

Prior

Andrew and

Michael

Armstrong, of the Liverpool-based Chambers.

Mr Pickering referred to a number of interesting cases, one of which being Kmeicic

It was the first time Atlantic Chambers

v Isaacs [2010] EWHC 281 QB. In this the

had hosted a seminar on this topic and the

Claimant, a casual labourer, claimed damages

half-day event was reported to have been

against the Defendant, an occupier, for

extremely well received.

personal injury loss and damage sustained as a result of an accident which happened while

Andrew

Pickering,

who

specialises

in

carrying out work for a building contractor

personal injury litigation (including industrial

on the Defendant’s garage. The Claimant

disease), clinical negligence and public law,

alleged the Defendant had withdrawn her

delivered a presentation into various aspects

permission for him to access a roof through

of the Work at Height Regulations 2005,

a bedroom window, and instructed him to

which came into force on 6th April 2005

use the ladder from her garage instead.

(Regulation 1).

The Claimant claimed the ladder toppled as he was standing on it, causing him to fall.

“The regulations apply to an employer

The claim failed, primarily on the issue of

fall should one occur. The discussion then moved on to ladders – an aspect of the Regulations likely to generate considerable litigation, not least because of the enormous numbers of falls from ladders which occur every year, and which on average, account for one third of all fall from height injuries. Mr Pickering suggested that those who drafted the Regulations seem hostile to the use of ladders, referring to the demands of Schedule 6 para. 1 which must be met before a ladder can be used. “Despite the HSE’s hostility to their use, the convenience of ladders as a working platform, as well as a means of access, are likely to mean that they continue to be used,” Mr Pickering said. Delegates

also

heard

from

Atlantic

Chambers’ barrister Michael Armstrong, who deals with all aspects of civil litigation


30

the barrister

and has a particular speciality in personal

evidence the teaching was so inadequate to

application for an interim payment: that the

injury. Mr Armstrong’s presentation saw him

produce an unsafe system of work or that

interim payment must not be more than a

explore the effects of no fewer than 12 recent

any breached caused V’s injury. However on

“reasonable proportion of the likely amount

employer liability cases.

appeal V’s claim was allowed. It found the

of the final judgment”; and that the interim

judges conclusions that X was not properly

payment must take into account contributory

One of which, Munro v Aberdeen City Council

educated and that V’s lack of training were

negligence.

[2009] CSOH 129, saw M, who was employed

sufficient evidence of any unsafe system of

by ACC, slip on ice in a car park which was

work. Further the COP found that had X’s

Mr Prior explained that taking into account

part of her workplace within the meaning of

educational needs been met and V properly

the “reasonable proportion of the final

WHSWR. Damages were agreed at £150,000

trained, on balance the accident would not

judgment” can still mean a high proportion

including a quarter discount for contributory

have occurred.

- even 90% - but is usually up to 50% or

negligence. The issue in dispute was whether

75%. The reasoning being the assessment

regulation 5(1) of the WHSWR applied to

The focus of discussions moved on to the

of the final judgment is done conservatively,

transient hazards such as ice on the surface

principles of interim payments as Atlantic

so the proportion of that conservative

of an otherwise structurally sound car

Chambers’ personal injury specialist barrister

assessment need not also be conservative,

park. The court found that the European

Charles Prior took to the stage.

just reasonable.

on employers any absolute duty to secure

“There are three facets to every application

Mr

the safety of workplaces under all possible

for an interim payment: first, conditions

circumstances, including the requirement to

conditions.

which must be satisfied, and, second, matters

show need, apply in large cases where a

Workplace Directive does not clearly impose Prior

also

explored

how

special

which must be taken in to account, as well

Periodical Payments Order is a likely final

Whilst in the case of Ceva Logistics Ltd

as, third, the general discretion, including

order, following the case of Eeles v Cobham

v Mark Anthony Lynch & Steve W Lynch

the overriding objective,” Mr Prior explained.

Hire Services Ltd [2009] EWCA Civ 204.

EWCA Civ 188, MAL was a visiting electrician

“‘Satisfied’, within CPR 25.7, here means

The speakers from Atlantic Chambers were

employed by SW to a warehouse owned by

‘more likely than not at trial’. This being an

joined by guest speaker Philip Collier, a

CL. MAL regularly visited the warehouse

interim application, the Court, on limited

consulting forensic engineer and partner at

in the course of his employment and was

information, has to make that assessment

Collier Knight Watts LLP, who delivered a

walking within the warehouse when he was

on the balance of probabilities but to a “high

presentation entitled ‘Engineering Expert

struck by a ‘reach truck’. With no criticism of

standard” so that it thinks that a Claimant

Witnesses - Friend or Foe’.

the driver of the truck due to the configuration

would achieve a particular result after trial

of the truck and warehouse at first instance

or assessment,” he added.

t/a SW Lynch Electrical Contractors [2011]

a claim succeeded against CL on the basis of Regulation 17 of the WHSWR. CL appealed

Mr Prior referred to the case of Stringman

The above feature has been produced to give

suggesting it was not liable under Regulation

(a Minor) v McCardle [1994] 1 WLR 1653 to

an insight into some of the content featured

17 for employees that were not its own. This

demonstrate that Claimants now do not have

in Atlantic Chambers’ recent Employers’

was rejected by the COA on the basis only CL

to prove a general need for the monies and a

Liability seminar and in no way constitutes

could control the rules in the warehouse in

particular need for the monies.

legal advice. For specific advice please

order to keep everyone safe.

contact Atlantic Chambers directly. “However, since there is a discretion, it seems

Mr Armstrong also referred to the case of Vaile

that in practice Claimants do have to prove a

v London Borough of Havering [2011] EWCA

need, especially where the application is

Civ 246, in which V, a teacher employed by

founded upon neither an interim judgment

LBH, was assaulted by a 14-year-old special

nor an admission,” Mr Prior noted. “After

needs child, X. X was within the Autistic

all, the Practice Direction to CPR 25 - PD25B

Spectrum, although V had not been informed

– requires that an application has evidence

of the same and had not been trained in the

stating the items or matters in respect of

appropriate techniques. At first the claim was

which the interim payment is sought.”

dismissed as although LBC failed to provide an adequate teaching system for X and train

Delegates heard that CPR 25.7 requires two

V appropriately, the judge felt there was no

matters to be taken into account in any

Visit www.atlanticchambers.co.uk/


the barrister

31

Barristers’ views sought on sentencing for multiple offences and mode of trial. The Sentencing Council is seeking views from barristers on proposed guidelines for three overarching aspects of sentencing: totality, offences taken into consideration and allocation.

T

he

draft

guidelines,

be applied, the effect of personal mitigation

where the application of the guideline might

which are set out in

and how to ensure a sentence is just and

lead to greater consistency of approach. The

a single consultation

appropriate. It also includes guidance on

types of sentence being given and the prison

document,

to

how to structure multiple sentences in a

population are not expected to be altered.

promote a consistent

variety of specific situations such as multiple

and

proportionate

fines or community orders, or determinate

approach to sentencing in cases where more

sentences where the offender is already a

As well as asking criminal justice professionals

than one offence is involved and to help

serving prisoner.

for views on the proposed approach to the

aim

the courts operate as effectively as possible

application of TICs overall, the consultation

by ensuring that each case is heard in the

covers many other aspects such as proposed

appropriate court.

Comments from barristers on any aspect of

procedural safeguards. The draft guideline

the draft guideline would be welcome.

reinforces the court’s discretion as to whether to take offences into consideration. It also

Totality is the principle that the total

lists a number of circumstances in which it is

sentence for a number of offences considered

The Sentencing Council is also consulting

undesirable for TICs to be accepted, such as

together should be just and proportionate

on its draft guideline for offences taken

where a TIC could attract a greater sentence

and

of

into consideration (TICs), which are those

than the conviction offence and if it is in the

the criminality when all the offences are

offences which an offender is not being

public interest that the TIC should be the

considered together.

There is a wealth of

prosecuted for, but asks the judge to take

subject of a separate charge. However, it is

case law regarding this principle but no one

into consideration when sentencing him

asking for views on whether there are other

source of guidance and so the guideline aims

for another offence.

examples that could be included in this list of

to bring both greater clarity for the judiciary

established practice on the matter, there is no

and practitioners in the application of the

single source of guidance about the approach

principle and to increase transparency for

the courts should take. The Council therefore

The third draft guideline the Sentencing

the public. It is not seeking to bring about

felt it was important to set out the general

Council is consulting on is allocation, the

any change to sentencing practice other than

principles, procedure and approach that

decision of a magistrates’ court as to whether

where the application of the guideline might

should be taken to TICs.

an either way offence should remain in the

reflect

the

overall

seriousness

While there is well-

lead to greater consistency of approach.

circumstances.

magistrates’ court or be committed to the Crown Court for trial. The draft guideline The draft guideline is intended to bring clarity

aims to encourage a consistent approach

The draft guideline provides guidance on

and consistency of approach to this long-

to allocation decisions and so ensure that

areas such as whether a sentence should

standing convention. Like the draft totality

each offender is dealt with by the court most

be concurrent or consecutive, the stage in

guideline, it is not intended to bring about

suited to sentence them according to the

the sentencing process the principle should

changes in sentencing practice other than

seriousness of their crime.


32

the barrister

There are currently no sentencing guidelines

responses should be sent by 8 December to:

on allocation although there is some guidance

consultation@sentencingcouncil.gsi.gov.uk

within the Consolidated Criminal Practice Direction issued by the Lord Chief Justice.

The professional consultation paper, short

The guideline proposed is intended for use

guides on allocation, totality and TICs,

in the magistrates’ court, where the vast

resource assessment and equality impact

majority of allocation decisions are made.

assessment can be found at:

Barristers are invited to give their views

www.sentencingcouncil.org.uk

on whether the structure of the guideline provides sufficient guidance to magistrates to

help

them

make

consistent

and

appropriate allocation decisions, whether the recommended approach for assessing cases is effective and whether there are other matters that the guideline might usefully cover.

The consultation on the three draft guidelines was

launched

on

15

September,

and


the barrister

33

A new type of Law Report for a new type of emerging law! By Phillip Taylor MBE, Richmond Green Chambers There’s much change afoot with our beloved

you’ll probably wonder what all this has to

challenging. The Information Law Reports

law reports and we now have a new addition

do with you as Counsel!

seek to meet this need, bringing together all the most important cases in a single source.

to go with all the old favourites such as the All Englands and the Weekly Law Reports.

The answer lies in London at 11 King’s

11KBW are delighted to be working with

Bench Walk in The Temple, and with the

Justis on this much-needed project.”

They are called ‘The Information Law

legal publishers, Justis Publishing, who have

Reports’ which are confidently described as

collaborated to create a new series of law

Mr Pitt-Payne is joined in his work by Anya

an ‘important new series in an expanding

reports available both in bound volumes

Proops and Robin Hopkins, all leading

area of law online and in print’.

and also on the Justis website or platform as

practitioners in the field of information

some call it.

law, who are the joint leaders of 11KBW’s Information Law Practice Group. What I did

In other words, it’s this rapidly growing area covering the right to know, the right to keep

We are told that “Information Law” is

private… and the ever-shifting boundary

becoming ever more important, seeking

between the two. With the big changes

to balance the “right to know” and the

brought about by the information technology

“right to be left alone” in an age of massive

revolution in the last 25 years, the reporting

databases and global information flows. Of

of legal decisions is also changing now to

course, we all want to protect our own

reflect modern practices. For instance, ‘The

privacy, but we also want to understand how

Times Law Reports’- probably the first ones

public authorities make decisions and spend

we actually see in print - are now available

our money. So this new series does help

under the auspices of the Incorporated

professionals grapple with these issues as we

Council for Law Reporting, whilst many use

see the precedents build up as a new body of,

the sometimes rather frowned upon British

dare I say it, an emerging substantive law of

and Irish Legal Information Institute (BAILII)

information. I have used this platform and I

which I must confess I have always found

did find it easy to navigate after the problems

very helpful after all the fiddling around with

I have encountered in the early days of using

LexisNexis online which somewhat puzzled

online library precedent services which were

me because I could not get the citations right.

not always easy systems.

like from the reports I have read so far are the credits given to all those reporters who have contributed to the publication which show the range of expertise available and complement the gravitas of the reports themselves. The update frequency is around six full reports each quarter and access to the archive as it grows.

And Mr Masoud Gerami, the Managing Director of Justis Publishing, when launching the new law reports said:

“We have had a number of significant milestones in our 25-year history, mostly associated with innovation and developments which

have

changed

legal

information

dissemination for the better. I am delighted WHAT IS INFORMATION LAW?

Timothy Pitt-Payne QC, a barrister at 11KBW and one of the leading editors of the new

Think back to your student days when the

reports, said when introducing these reports

law of tort was so much less cluttered, and

that:

that another milestone has been added to our list of achievements by producing the new series of Information Law Reports in association with 11KBW, the leaders in this increasingly important field. I believe that

the Campaign for Freedom of Information was in full swing against our over-secret

“There is a growing case-law, generated by

society, and the public services. Well, we’ve

the specialist Information Rights Tribunal and

moved forward and the gap in the detail is

the higher courts. Navigating this material

now being covered for a new generation of

and quickly identifying the most important

lawyers in both paper form and online. So

recent

developments

is

increasingly

the complementary nature of the expertise from the partners in this project is the ideal requirement for any successful product or service, and we look forward to a continued relationship with 11KBW.”


34

the barrister

JustCite and Justis platforms is to use them so I feel that it’s probably a big time-saver once the reports stack up and you get used to using the systems.

Many of you may be wondering what relevance this area has for your practice, and I did too. Then I realized the range of the reports themselves. This is part of the short shopping list of the areas: data protection; freedom of information; other statutory rights of access to information; and the regulation of surveillance.

It’s also right to say that it’s a fast moving legal area which is relevant to a wide range of legal practitioners (there were many solicitors at the launch) in both the private and public sectors.

The substantive areas

of law covered include employment law, administrative and local government law, and business law which will certainly cover what we know as commercial and company (corporate governance) law. He went on to say that: “This is also the first

In the past I have relied on the written notes

time that Justis Publishing has produced a

in the Law Library paper law reports for

product in hard copy, and we are very excited

cross-referencing to other cases. What we

about the possibilities that the combination of

have with these reports when viewed online

hard copy and online versions will present.”

is a very quick ‘noter-up’ system which is immediate (and thus time-saving) with

When I interviewed Mr Gerami, he likened

these reported decisions identifying which

the new reports as viewed on the web as

authorities from the past back our cases, and

being akin to peeling off the layers of an

which do not.

onion - rather an interesting comparison as

Additionally, there are links from the Justis

the law reports and their precedents do tend

platform through to the JustCite citator, its

to be peeled away but fortunately without the

sister service. Here, simple visual images

tears, either of joy, or from the onion!

rather like the branches of a tree show precedents cited in the case in question

What we get here is the first and only

(on the left), and subsequent cases citing

systematic repository of full reports in an

the case in question (on the right), along

expanding area of law otherwise limited just

with indicators of whether the treatment was

to the written judgments themselves, and this

broadly “positive”, “neutral” or “negative”.

must be a good thing for all concerned. And

Click the case and you go straight to it.

being created is probably the beginning of the end for the old-style reports as we know them. The key is to master the operation of what Justis have created here as the reports are indexed with their aforementioned sister service, which is described as a providerneutral citator called JustCite. ENDPOINT

So, what the Information Law Reports do offer is a searchable facility which can be operated in isolation, or in conjunction with, other series of reports so Justis are pathfinders for the new way we will end up doing things. I was rather apprehensive about this approach at first, but I have concluded that it is a great way forward for us as legal practitioners in this digital decade.

it’s the cross-referencing to previous cases which I found helpful.

The full-text online legal library which is

Frankly, the only real way to understand the


13/2/11

19:45

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