the barrister

#53

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12 th June - 31 st July 2012

E st . 1999

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Features Science: Stirred, 3 Forensic not Shaken The landscape of forensic service provision in the UK has undergone seismic changes during the last decade, culminatingwith the controlled wind-down of the Forensic Science Service this year

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By Dr Brian McKeown Chief Scientist, LGC Forensics

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Magistrates 7 Reforming The criminal justice system

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By Stephen Moffatt Policy and Campaigns Officer, Criminal Justice Alliance

p.6

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the barrister

03

Forensic Science: Stirred, not Shaken By Dr Brian McKeown, Chief Scientist, LGC Forensics

T

he

landscape

of

meeting by enquiring “Okay, I see the

to the CJS and police if we continue to

service

same faces around the table; who do

invest time and money in R&D. There is

provision in the UK

you work for this time?”. The comment,

no doubt, however, that the critical need

has undergone seismic

although light-hearted, acknowledged

for ongoing R&D is well understood

changes during the last

that

have

and that the new face of forensics in

decade,

by choice worked for many different

the UK will continue to invest through a

forensic providers during their careers.

diversity of mechanisms.

Much comment has been made about

Mobility enriches careers and gives a

Forensic Research and Development

the impact this will have on service

broader perspective on best (and worst)

is, in common with all R&D, expensive

delivery, impartiality of evidence and

practices. Over the past 20 years, I have

and never guaranteed of success at the

also future research developments in

myself worked for two government-

outset. In many ways, our world is akin

the field. Should the Criminal Justice

funded

two

to that of ‘Big Pharma’, where the cost of

System be unnerved, or are these

commercial providers. Putting me in the

developing a new drug is perhaps in the

changes rather a reflection of a mature

minority of forensic scientists, I never

region of $800 million. If only we had

and stable discipline, operating under

actually worked directly for the FSS. In

that sort of firepower at our disposal!

strict codes of practice and benefiting

common with my many colleagues who

from commercial acumen and a need to

have also moved between suppliers,

While many excellent drug therapies

outperform alternative suppliers?

from

forensic

culminating

with the controlled wind-down of the

many

forensic

scientists

Forensic Science Service this year.

forensic

my

already exist for the common diseases that blight humanity, to develop a

In the late 1990s a meeting of the

serve the Criminal Justice System (CJS)

new drug that performs perhaps only

then

DNA

has not diminished one iota. If anything,

marginally better may still costs around

Database Suppliers’ Group was held in

it has strengthened under the recent

$800 million. It becomes difficult to

Birmingham. The gathering was chaired

somewhat mischievous suggestions that

justify the eye-watering expense of

by Dr Dave Werrett, who was at the

a commercial forensic supplier and its

developing a new drug therapy with only

time the Deputy Director of the Forensic

staff might be thought of as less than

marginally greater efficacy to compete

Science Service (FSS), the organisation

impartial, by dint of where their monthly

with a perfectly good older therapy

responsible for the birth of the National

salary originates.

that is no longer covered by patent

established

to

and

professional integrity and desire to best recently

employer

suppliers

employer,

DNA Database (NDNAD). The FSS was

protection, and now costs pennies from

the Custodian of the Database and

I can reassure you that my colleagues,

a generic drug manufacturer.

also its single biggest ‘supplier’ of DNA

regardless

or

companies approach this conundrum

profiles. The NDNAD is a fitting epitaph

recent changes, are driven by the same

by targeting radically new therapies,

for the now disbanded FSS and an

motivations as you would hope all

or by addressing unmet need: diseases

accomplishment that was possible in

forensic scientists are: to provide an

that

no small measure due to a large and

excellent and complete service to the

patients. Another approach is to apply

dedicated R&D team.

CJS, and to continue to advance the

an existing therapy to an unmet need.

of

current

employer

afflict

ever-fewer

Drug

individual

science such that next year, we will be

It’s a good analogy, as forensic R&D is

However, even in the late 1990s, things

better than we are this year, and that in

required on an ongoing basis not only

were changing, and in recognition of the

2014, we’ll be better than 2013.

to reinvent radically those things we

fact that the world of forensic casework

already do to be much more effective

provision was opening up to commercial

It’s important to stress that we will

(by a variety of ‘better’ measures), but

competition, with non-FSS labs also

only achieve improvements on what is

also to address a diminishing number

uploading DNA profiles to the Database,

already an extremely efficient, robust,

of evidence types where no effective

Dr Werrett commenced the Birmingham

informative

laboratory investigation is currently

and

economical

service

04

the barrister

possible. Sensibly, we also apply existing

being

Technology

recognised by the committee ‘Opinion

technologies to novel applications. On

Strategy Board (TSB), drawing on the

Members’, individuals who identify the

an ongoing basis, we incrementally

various Research Councils in the UK.

precise areas of endeavour that will be

improve those things that are already

This is tangible progress.

supported during any given

planned

by

the

‘good’ to be ever ‘better’.

funding

round. Within

Europe,

there

are

7

year

There is so much still to do and many of

cycle funding streams available for

Of course, the various forensic suppliers

the inventions and developments yet to

collaborative research that prima facie

serving the UK CJS will also continue to

come, we almost certainly do not know

appear generous: Framework Program

invest directly in R&D, to differentiate

we actually need. Science in general is

7 is the best known, ISEC being another

their services from alternative suppliers.

littered with technologies that are now

that has focused on forensics in the past.

Within LGC, for instance, this includes

thought essential, but which a priori

These funding streams are, however,

investing in expensive and demanding

no-one ever knew we needed. But how

not directly accessible to commercial

research,

can we continue to develop the service

enterprises working in isolation, and so

approach to rapid DNA analysis beyond

we offer under increasing financial

collaborations with academia or other

the confines of the laboratory: millions

pressures?

governmental forensic labs are essential.

of pounds and many years of work by

such

as

our

particular

Proposed research must also have a

an interdisciplinary team of scientists,

The demise of the FSS undeniably

demonstrable impact on the ability to

engineers and technicians. It will also

reduced the total UK investment in

better serve the criminal justice system

include the somewhat less glamorous

forensic R&D. The FSS in later days

across Europe as borders increasingly

assessment of background levels of grey

spent

have little impact on the movement of

cotton fibres in public areas: a plotline

individuals within the Community.

unlikely to feature on CSI, but necessary

upwards

of

£6

million

per

annum on R&D; money that in the age of austerity has not immediately been

if we are to speak with authority about

reallocated to forensic R&D through

Right

other mechanisms. But there is growing

accessed for forensics via Brussels is

recognition that the commercial supply

considerably under-spent. This reflects

model

embraced

by

England

now,

funding

that

could

be

the significance of identifying this fibre type in the course of an investigation.

and

the fact that research projects are very

Forensic science delivery and continuing

Wales for ongoing forensic provision

strictly evaluated from both scientific

R&D is populated by the same type of

cannot mean the suppliers bear the

and accounting standpoints, rather than

person (and often the same individuals)

undiluted burden of R&D expense, if

a lack of interest in the funding.

that has always provided the service:

that R&D is to be of substance. Those

dedicated,

impartial

and

keen

as

new mechanisms include a necessarily

The UK forensics providers in England

mustard to see the service continue to

closer working relationship between

and Wales are all small to medium

develop to better serve the CJS in the

the commercial suppliers of forensic

size enterprises (SMEs) and therefore

future. Although the financial strictures

laboratory consumables, such as DNA

will qualify for a contribution toward

under which we operate are real and

testing kits, the case-working forensic

the cost of collaborative research. We

biting, we are still routinely delivering

laboratories

(numerous)

would be remiss not to engage with this

excellence and I believe we are still

academic institutions engaged in R&D

and

the

funding mechanism, given adequate

capable of surprising you in the future

that could find application in forensic

safeguards

with what we have yet to invent.

use.

commercial position. To ensure forensics is

that

successful

in

acknowledge attracting

our

support

Fundamental research in our universities

from Europe, the forensic community

needs to be supported by access to

must educate the various committees

funding

recognise

that determine which specific areas of

and value forensics as an end-point for

application are to be entertained during

the research conducted. To that end

any given funding round. The value of

the Research Councils UK (RCUK) and

forensics and its contribution to a safer

the Forensic Science Society have been

society is blatant to all who work in the

working closely to facilitate a funding

field. We anticipate that a less emotive

stream for ongoing forensic research

approach

and

Interest

support in future will be required if we

Group in Forensic Science is currently

are to ensure that forensics is properly

mechanisms

development.

that

ASpecial

to

lobbying

for

greater

Reports close to perfection – all the arguments, judgments and citations Tim Dutton QC (Head of Chambers, Fountain Court)

iclronline.co.uk

06 p.1

the barrister

Lawyer, is coming to the UK.

Despite wise words of encouragement

Their model appears to be similar

That’s just the tip of a solicitor-

from the Bar Council’s Chairman in

to that which the Bar Consultancy

driven,

2010, Nichols Green QC, that barristers’

Network have developed and both

chambers needed to be at least 70-strong

anticipate novel commercial fee-sharing

few mergers have taken place and the

arrangements between barristers and

thriving,

entrepreneurial

writhing, culture

of

invention and innovation.

average membership is still just below

solicitors which avoid any possible

Solicitors’ firms have invested immense

40. The Bar seems to be unable to grasp

referral fee and conflict problems by

intellectual capital and hard cash into a

the benefits of merger and the strength

careful organisation & management and

whole spectrum of new business ideas.

& depth of a well-diversified team, the

choice of regulator. The Bar Consultancy

The cynics and doubters say that they’ll

economies of scale and the obvious clout

Network is working with small number

all fail and it’s a flash in the pan.

the very big chambers now have and

of chambers who are preparing for

Certainly, some won’t make it but there

are wielding. Not only that but the Bar

the challenges and opportunities that

will be others to take their place. More

seem to find insurmountable practical

competitive

will evolve and their nimble-minded

difficulties in following promising starts

contracts will bring.

and sure-footed managers and investors

through and there are many tales about

will see that they do. Yet others will just

mergers being abandoned in the early

The new world, though, is not without

continue to build on and develop a great

stages. It might well be time for the

its

idea and we’ll soon wonder why we

Bar to consider alliances more from a

structure and financial management of

never thought of it before.

business standpoint than a view of the

traditional chambers doesn’t allow for

personalities involved.

the retention of profit or the ability

Meanwhile, strategic alliances, often

own

tendering

problems.

in

The

legal

aid

current

to build up enough working capital to

falling short of merger or takeover, are

There are some encouraging signs,

fund major expansions and business

being fashioned between solicitors’ firms

though. Recently, Exchange Chambers

initiatives. Investment capital may be

who see the synergy in collaboration

in Liverpool and Litigation Funding

even harder for the Bar to access as the

for individual contracts or in longer

(principally made up of barristers from

requirements of private equity providers

term ventures. Mergers, of course, are

Ely Chambers in London) launched their

is liable to test the membership of most

still a major part of the fast-changing

own privately-funded litigation services.

chambers

landscape solicitors inhabit and a recent

We’ve also had Riverview Law and

survey by Andrew Otterburn of the Law

Artesian Law setting up. Riverview look

The LSA has paved the way for an

Consultancy Network showed that the

like the out-sourced advocacy arm of

ABS world and a surprising number are

rate of mergers had doubled in 2011

DLA Piper and has attracted a galaxy of

being formed. Solicitors have responded

and was set to follow that trend in 2012.

stars from existing chambers who work

with alacrity and new thinking. Many

for them whilst remaining in their own

new law firms have sprung up and

chambers.

are bringing a refreshing vigour to the

Venture capital is looking for such vehicles and the bigger law firms are,

market. The Bar has shown some signs

and will be, investing in their noisy,

Artesian

smaller, neighbours.

proposition.

Law A

are

an

small

interesting number

of

of joining in though, for them, speeding to catch up must be top of the agenda.

forward-looking barristers broke away from What, then, of the Bar?

their

original

chambers

and

Ian Dodd Bar Consultancy Network

have set up a partnership to explore novel ways of working with clients in

While there are many things, like

crime.

ownership & management structure

an experienced practice manager have

and a slow-moving tradition, which

created a platform from which they

might inhibit such rapid iconoclastic

offer a range of legal services in a

business development at the Bar there is

flexible and modern way. Seeing the

certainly no lack of intellect, intelligence

opportunities that the LSA offers and

and resourcefulness. Progress, though,

choosing to be regulated by the SRA,

is slow and it might be time for the Bar

rather than the BSB who are yet fully

to shake off its torpor and join the race

to consult on entity regulation, this

before it’s left too far behind.

represents another way to the market.

Six barristers, a solicitor and

www.barconsultancynetwork.co.uk

the barrister

07

Reforming Magistrates By Stephen Moffatt, Policy and Campaigns Officer, Criminal Justice Alliance

T

he

criminal

justice

and legislative change, not without

to reduce this enormous bill, enacting a

system is going through

controversy

power

23% cut in the Ministry of Justice budget

a period of significant

struggles.

encompassing

over the course of this parliament, for

and sustained reform.

‘rehabilitation

been

example pushing through reductions

The

crisis

the driver towards a more localist and

in legal aid commitments within the

has shone a light on

outcome-based agenda - the introduction

Legal Aid, Sentencing and Punishment

longstanding inefficiencies in the system,

of

schemes,

of Offenders Bill, despite significant

in particular the huge sums of money

increasing

prisons,

opposition. If a policy promises to cut

required to keep an ever-increasing

police and probation, and creation of the

costs whilst not appearing unduly lenient

numbers

incarcerated.

soon to be democratically-elected police

to the public, there is a strong likelihood

Justice Secretary, Kenneth Clarke, has

and crime commissioners all features of

that it will be enacted. It is to one such

questioned the effectiveness of a range

the emerging landscape.

potential change that I wish to draw

of criminal justice services, instigating a

The cost of maintaining the prison

particular attention to; magistrates and

debate on whether they offer good value

estate has risen over the last decade to

the limits of their sentencing jurisdiction.

for money in terms of crime reduction,

over £4 billion, with the annual cost of

Presently,

fairness and public confidence.

reoffending estimated to be above £11

their summary jurisdiction over cases

The result of this is substantial policy

billion. The government is attempting

in which offenders could receive a

of

financial

prisoners

and The

payment

internal all

revolution’

by

has

results

privatization

of

magistrates

can

exercise

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08

the barrister

maximum 6 month custodial sentence,

to unleash said potential and whether

courts6. During this time the general

extending to two years for offenders

or not they are in a position to do so

custodial rate here jumped from 5%

sentenced within a juvenile court. They

anyway, in terms of resources and

to 16% (admittedly a large proportion

deal exclusively with minor offences,

general support.

of this is down to district court judges

usually acquisitive in nature or low end

It is claimed that the government will

sitting in magistrates’ courts), whilst

drug offences, handing down short term

make large financial savings by granting

prison sentences, community orders or

magistrates

sentencing

within the crown court the rate went from 45% to 63%7. Although it cannot

fines. The numbers of cases magistrates

powers and that the criminal justice

be conclusively shown that the increased

deal with have been gradually declining,

process will be rapidly sped up for many

sentencing power would substantially

7% last year, as have the numbers

offences. Attorney General, Dominic

enlarge prison numbers there would

of magistrates, down to 27,500 from

Grieve, suggested that increasing the

appear to be a significant risk that it

37,000 and predicted to settle at around 22-24,000 in the future1.

sentencing powers of magistrates would

would do so, especially if district court

make the court system more efficient as

judges’ summary powers were increased

The Magistrates’ Association is keen to

early guilty pleas in magistrates’ courts

simultaneously.

have the jurisdiction of the magistracy

cost the justice system on average £90 a

Increasing sentencing powers could

extended. They wish to be able to pass

case compared with £750 when similar

impact on other important principles

down custodial sentences of up to 12

in justice, for example putting at risk

months and there have been numerous

hearings are referred to the Crown Court2. The Magistrates’ Association

signs that the government is seriously

believe that on average each case in a

(something

considering this option.

magistrates’ court costs £900 compared to £3,500 in a Crown Court3. However,

seems willing to quietly curtail). Instead,

At present, section 154 of Criminal Justice Act 2003, enacted by the last

some statistics suggest that the differing

questioning priorities, so too should

Labour Government, allows magistrates

expense

and

the magistracy. Now is the opportune

to pass down a sentence of up to 12

district court judges is extremely minor

moment to explore the full potential of

months, however this part of the act has

unless you take into consideration the

their existing sentencing powers and

never been implemented. Ken Clarke

latter’s greater propensity to sentence to custody4.

their unique contribution.

wished to repeal this section under the LASPO bill, perhaps concerned that

Yet the debatable cost savings are

jurisdictions left in the world (aside

magistrates’ courts would too quickly

dwarfed

increase

from a handful of small island nations)

fill his prison cells. However, in reaction

in custodial costs. It is argued that

that has retained the magistracy. It is

to the riots and what appeared to the

magistrates have proven themselves to

important to determine why it continues

public to be swift and sure justice

be responsible enough not to expand

to do so in the 21st century, for it

dispensed by the magistrates he failed to

the prison population once given an

will assist determining the direction

get the requisite approval from his party

extended

the

the magistracy should pursue. The

and had to back down. The powers thus

custodial rate of children has been

Magistrates’ Association themselves are

remain on the statute book and could be

on a consistent decrease over the last

in the process of drafting a report based

revisited without future parliamentary

three years (from around 3000 in 2008

on research they carried out on the role

debate.

to 2000 in 2011). However, despite

of the magistracy in the 21st century.

Magistrates have a long and important

magistrates’

some

As volunteers, freely giving of their

history with the criminal justice system,

influence on this decrease, research

time, there is a connection to local

and despite some fears a few years

suggests that the real reasons for the

communities that cannot be found

ago it is generally accepted that this

declining numbers are many, complex

within the judiciary. The magistracy

should long continue. There is unlocked

and in truth predominantly inadvertent

could do more to fully exploit and take

potential within magistrates, in terms

repercussions of policy decisions and

advantage of this. Local magistrates

of their ability to improve the outcomes

may not always be reflective of entire

of those coming into contact with the

procedures, and certainly can’t be put down to the work of a single agency5.

criminal justice system due to the way

Evidence

punitive

are trying to address) but the underlying

they currently exercise their authority.

sentencing in other areas is exemplified

rationale of lay members of the public

However, it is questionable whether

by a fivefold increase between 1992

judging their peers nonetheless remains

extending their sentencing jurisdiction

and 2002 in the number of women

highly valuable. This is not to suggest that

above six months would be the best way

sentenced to custody by the magistrates’

their sentencing should be determined

12

between

by

the

month

magistrates

potential

sentencing

of

decisions

power

as

having

increasingly

the fundamental right to a trial by jury which

the

government

as the justice system is refocusing and

England and Wales are one of the few

communities (an issue the magistrates

the barrister

09

by their localities generating greater

institutions in this way could ultimately

best method of doing so.

inconsistency between neighbourhoods

lower offending and re-offending.

Magistrates have unlocked potential.

but for example, the opportunity to sit

These benefits should supersede the

However, we cannot lay unreasonable

in more informal community locations

view that magistrates should only apply

expectations at the court door. They

could be explored.

the strict letter of the law. They are in

will not significantly reduce reoffending

For instance, magistrates could do more

a prime position to do more than that,

rates nor improve relations between the

to educate communities about their role

and such an approach is more worthy of

criminal justice system and the public

and the work of the criminal justice

investigation than an extension of their

overnight. They can’t lift individuals

system more generally. The Magistrates

punitive sentencing powers. Placing a

out of poverty. They can’t improve the

Association is keen to continue to

degree of responsibility on the shoulders

education system. They cannot address

expand

this,

of magistrates for the sentences they

employment issues. What they can

especially amongst young people and

on

hand down in this way should be seen

do is assist in the process of doing so

ethnic minority groups in urban areas.

as positive without being too unrealistic

by adapting practice and helping to

More substantially, magistrates could

or inappropriate.

promote desistance through effective

spend a greater amount of time looking

The government could start by placing

and supportive sentencing, providing

at the welfare and vulnerabilities of

the

have

people who are presented before them

the offenders appearing before them,

with probation on a statutory footing.

the opportunity to address underlying

how such was linked to the criminal

Presently, there is no obligation on

criminal behavioural issues. Simply

behavior in question and the effect that

probation to show magistrates the

granting increased sentencing powers

any sentence is likely to have on them.

services that carry out community

to magistrates misses a key opportunity

Magistrates are in excellent positions to

orders. Altering this should be seen as

to fundamentally rethink the important

determine the performance of several

a priority as it will improve confidence

role of the magistracy.

statutory agencies towards individuals

in and understanding of community

who subsequently go on to commit

programmes,

crimes. In this manner they have the

vulnerabilities

potential to highlight the fact that the

offending behavior being dealt with,

2 http://www.guardian.co.uk/law/2011/

criminal justice system is frequently

which should in turn improve judicial

sep/07/attorney-general-ken-clarke-

being used to rectify what is in essence a

and public confidence in such orders.

magistrates

social issue, with prisons too often used

The

3 Speech by John Fassenfelt to Criminal

to warehouse individuals that other

Association said that this approach will

Justice Alliance, 25th January 2012.

agencies refuse to cope with.

encourage members to use alternatives

4 Morgan , R. and Russell, N. (2002) The

I would not go as far to say that all

to custody more often.

Role of the Judiciary in the Magistrates’

magistrates’ courts should suddenly

Nick Herbert said in a speech given

Courts, Home Office Report.

strive to imitate problem solving courts

to the Magistrates’ Association late

5

- more research and evidence is first

last year that he wants to “reclaim

Prison

needed, but the adoption of a similar

prisonreformtrust.org.uk/Portals/0/

mind frame surrounding the multiple

summary justice for the community, with magistrates at the centre”8. What

issues

possible better way of starting this

6 Hedderman, C. (2012) Empty Cells or

sentencing would be beneficial.

than having magistrates take greater

Empty Words? Criminal Justice Alliance.

Similarly, more attention could be given

consideration

7 Hough, M. Jacobson, J. and Millie,

to the welfare and vulnerabilities of the

individual vulnerabilities and the lasting

A. (2003)

families of offenders. Such an approach

effects of the sentences they hand down.

Sentencing and the Prison Population:

could help particular community welfare

This may sound unduly onerous but

Prison Reform Trust.

problems being addressed before they

with additional support and resources

8 http://www.nickherbert.com/

are escalated through the justice system

there is the potential to carry out this

media_centre.php/501/Reclaiming%20

and seen purely as criminal issues. The

work. Of course, during these economic

Summary%20Justice

imprisonment last year of 25 parents for

times, when magistrates’ courts are

failing to ensure their child’s attendance

being closed and expenses have been

at school is a clear example of this

frozen the likelihood of receiving such

misguided approach. Better allocation

is minimal but if Nick Herbert is to

of the roles of criminal justice and social

commit to his words this is surely the

in

schemes

an

that

offenders’

do

life

when

relationship

Chairman

magistrates

demonstrate are

being

of

of

the

local

met

how

1 Speech by John Fassenfelt to Criminal

and

Justice Alliance, 25th January 2012.

Magistrates’

problems,

Allen,

R.,

Reform

(2011) Trust.

Last

Resort?

http://www.

Documents/lastresort.pdf

The Decision to Imprison:

10 p.1

the barrister

including my former employer, Saltley and Nechells Law Centre in Birmingham.

The Law Centre Movement is indeed currently facing the greatest threat to its existence in its 42 year history. The Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) envisages a radical overhaul in entitlement to civil legal aid in several areas of law, including housing, employment, debt and welfare benefits which have a crucial bearing on the work of Law Centres. As I shall argue in this article, the LASPO Bill will spell the end of neighbourhood Law Centres. The Financial Difficulties Experienced by Law Centres under the Current Legal Aid Scheme - A Case Study At present there are 54 Law Centres across England, Wales and Northern Ireland. In order to obtain legal aid funding, they must tender for legal aid contracts in competition with private law firms. If successful in obtaining a contract, the Law Centre in question receives payments from the Legal Services Commission on a case by case basis. Figures released by the Law Centres Federation show that one in three Law Centres relies on legal aid contracts to provide at least 60 per cent of their annual funding. A number of Law Centres receive annual local authority grants in addition to legal aid funding but such arrangements are becoming increasingly rare and, in any event, the grants are generally quite modest in value.

photocopier hire fees and subscriptions to practitioners’ texts.

purely financial perspective, these are the least desirable cases to open.

In respect of each welfare rights case, SNLC received a standard fixed fee of £167.00 excluding VAT. The fixed fee was the equivalent of three hours’ work on the case at an hourly rate of £55.60. SNLC was paid on closure of the case, notwithstanding the fact that many cases, particularly those appealed to the Upper Tribunal or the Tax Adjudicator, take several months or even years to close.

The upshot was that the level of remuneration available for legal aid work was simply insufficient to meet SNLC’s overheads. The poor rate of remuneration created severe cash flow problems, eventually forcing the Law Centre into administration on 13 October 2010.

SNLC received no additional remuneration if it spent more than three hours on a case, except where it spent over nine hours on it. Under these circumstances, it received remuneration for the actual amount of time spent on the case, at the rate of £55.60 per hour.

The latest figures indicate that the UK has amassed a national debt totalling £1,004 trillion, representing 64.2 per cent of Gross Domestic Product. It is estimated that the legal aid cuts in the LASPO Bill will achieve cost savings of £350 million.

The difficulties with this system are threefold.

In my view, this projected cost saving represents a false economy. At the time of writing, the Bill proposes to abolish entitlement to legal aid altogether in respect of employment law, welfare benefits and debt. Housing law will face a 40 per cent reduction in scope. The proposals will therefore remove the bulk of legal aid funding from Law Centres’ main practice areas, leaving them without the financial means to continue their work. Furthermore, the Law Centres that currently receive local authority funding will face a 53 per cent cut in their annual funding over the coming year.

(1) Firstly it creates an incentive for organisations to cherry-pick those cases which can be closed with the minimum amount of time and effort. SNLC refused to select cases in this way and, as a result, found it difficult to make publicly funded work financially viable. However, the cherry-picking of cases undermines the concept of access to justice – the very raison d’etre of a legal aid scheme.

At Saltley and Nechells Law Centre (hereafter SNLC), I was acutely aware of the financial pressure the current legal aid scheme places on the not-for-profit sector.

(2) Secondly, the system creates an anomalous situation where a case that falls just short of the three times limit is only paid at a fraction of its true value. Under these circumstances, legal aid practitioners might be tempted to generate unnecessary costs purely to tip the case into the “exceptional category”, thereby generating a fee which properly reflects the actual level of time and effort invested.

The overheads involved in running even a modest Law Centre are high. These include the rent of premises, the salaries of solicitors, fee earners and administrative staff, fuel bills, telephone bills, stationery, postage, professional indemnity insurance premiums,

(3) Thirdly, and most fundamentally, the overwhelming majority of cases fall between these two extremes. These cases result in a net loss to the organisation, since the value of the work conducted on the case exceeds the standard fixed fee payable. From a

The Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO)

The cumulative effect of cuts in legal aid and local authority funding will be to starve Law Centres of funds and force them to close. In my view, this will lead to the end of the Law Centre movement. The Impact of the Closure of Law Centres on Local Communities If this happens, the effect on Law Centres’ vulnerable clientele will be catastrophic. As I see it, the closure of SNLC impeded access to justice in the local community in the following way: • Tenants are less likely to oppose applications for possession orders,

the barrister

which may well lead to an increase in evictions and homelessness in the area. According to a report by the New Economics Foundation, (The SocioEconomic Benefit of Law Centres, 2008) each local authority eviction will cost the taxpayer £34,085, compared to the £174 cost of 9.5 hours of legal advice. • Employees who are unfairly dismissed by their employers are less likely to seek legal advice, with the result that valid claims are less likely to be identified and brought within the limitation period. • Unfavourable welfare benefit decisions are less likely to be appealed, leading to lower household incomes, increased child poverty and increased social exclusion. Figures published by the Ministry of Justice on 1 December 2011 reveal that 40 per cent of FirstTier Tribunals (Social Entitlement Chamber) find in favour of those who appeal against decisions not to award them incapacity benefit. • Local citizens facing debt are

now less likely to seek advice, resulting in an increase in bankruptcy and mental illness in the area. It is likely that this scenario will be repeated across the country. Conclusion The LASPO Bill was subject to a record 11 Government vote defeats in the House of Lords – the highest number of defeats in the last 30 years. It is clear to see why. In my view, no one will benefit from the LASPO Bill: • It appears unlikely that Bill will achieve cost savings of £350 million as it intends. Independent research conducted by the New Economics Foundation indicates that every £1 invested in a Law Centre yields £10 worth of cost savings and social benefits for local government. If the proposed reforms are enacted, these cost savings and benefits will be lost. • The proposed legal aid reforms

11

will severely inhibit access to justice at a time when demand for legal aid has never been greater. • It will cause the publicly funded sector of the legal profession to contract and will result in job losses, with many talented advocates leaving the profession. The LASPO Bill will spell the end of neighbourhood Law Centres and leave thousands of vulnerable clients without legal redress. Furthermore the destruction of the Law Centre movement will have been in vain, since it is highly unlikely that the Bill will achieve its projected cost savings of £350 million in view of all the empirical evidence available. It would therefore seem that LASPO is a Bill none of us can afford. Emily Johnson LL.B (Hons) Barrister-at-law (non-practising) Emilyjohnson1596@aol.com

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12

the barrister

IT Sets The Bar By Nick Hartwell, Senior Project Manager for LEX Chambers Management at Bar Squared Ltd

C

onsidering the current

to Chambers’ IT; it’s the core of the

little more than you have to so that you

legal

business after all!

might enjoy a superior level of service.

and

landscape comparing

it

Determining

the

requirements

your

to the landscape of

So, having set the scene, what steps can

business has from its IT solution is

yesteryear, significant

you take to ensure that you minimize

paramount.

changes are apparent.

the risks and maximize the benefits for

existing solution for granted without

your business?

regard for what it actually does for them

Gone are the days of being able to manage Chambers (an entity which has

Often, people take their

and the business. More often than not,

been forced to morph its operational

Polished sales techniques are simple

systems in place within organizations

structure to a more corporate one) using

to achieve and can often sway your

are not used to their potential and so

t-cards and a paper diary.

decision one way or another.

Within a

It is

two key questions to ask in the first

profession that still enjoys a degree of

important to remember, though, that

instance is, “Are we making the most of

traditionalism, the inevitable resistance

the product or service that you are

our current provision?” and, “Are there

to change present as a result, means that

buying should be considered over and

areas where our current provision could

knowing what steps to take to minimize

above the sales pitch; taking references

be improved?”

the potential risks associated with an IT

and asking to meet with members of the

system change can be a massive hurdle

implementation, service and support

Two significant changes were recently

to overcome.

The many and varied

teams to ensure that you are buying

imposed

factors in play when it comes to the

precisely what you believe you are is

that

crunch time of changing your IT, the

a sensible plan.

requirements.

decision is one that is often repeatedly

ensure that you are getting what you

required

postponed and only finally addressed at

think you are because the sale and

be made to Chambers IT systems to

a time of crisis, e.g. when a server has

implementation is merely a fraction of

facilitate compliance with the changes.

failed or the realization dawns that your

the work that is involved in the longer

These changes, specifically relating to

current system is unable to cope with

term.

the BSB and client complaints procedure

Do your utmost to

more modern ways of working.

on

impacted

Barristers’ the

Chambers

administrative

Both of these changes

programmatic

changes

to

and the London Boroughs Legal Alliance Support and the provision of ongoing

forcing Chambers to stop using fee notes

When a server fails, it is likely that

training is important because this will

and begin using invoice style billing,

your business will be brought to its

assist you in maximizing the potential

meant that software providers had to

knees. You will be facing a Staff who

of your IT system and ultimately benefit

react rapidly to provide Chambers with

either struggle enormously or who are

your business.

With this in mind,

modifications to their software in order

totally unable to perform the day to day

question whether the cost of maintenance

that they did not suffer a loss of business

tasks associated with their jobs. Other

and support is a part of the price you

efficiency.

members of the organization will be

have been quoted? What is the quality

hampered by the effects of the staff being

of the service that you may expect to

When you’re hunting for a supplier, you

rendered helpless and consequently, it is

receive from your new supplier? These

want to be sure that the end decision is

never long before you have a whole host

are points that you must take references

the right one and the questions listed

of massively disgruntled personalities

in relation to from existing users. Very

above should assist you in determining,

surrounding you, all of which want

often, companies are tempted by low

amongst other things, key information

solutions immediately.

The position

cost offerings because of the current

about whether each supplier is credible,

is wholly undesirable and spells out

financial climate but sometimes, as

whether they are stable in the market

some very valid reasons for adopting

the adage goes, “penny wise, pound

place

a pro-active stance when it comes

foolish”. Sometimes, it pays to spend a

expertise to provide a workable solution

and

if

they

have

sufficient

the barrister

13

with longevity of service. It’s also vital

that your move to new suppliers bears

solution will render you in in the coming

to take references from other similar

all the benefits that it should, you need

years.

businesses about a potential service

to ensure that you are engaging with

provider – certainly, in IT, criticism is

an organization who are aware of the

In essence, if you’re thinking about

forthcoming so ask an existing user

requirement for regular updates ensuring

changing your IT, be it infrastructure,

about their feeling towards a supplier

that your software and infrastructure

software or even basic hardware, talk to

before you commit to anything.

This

remain as modern as is possible. You

others who have been in your position

way, you have a valuable opinion from

should make certain that upgrades to

and learn from their experiences. Don’t

somebody who has previously been in

the software and infrastructure will not

make a decision based solely on cost.

your position.

cause your business disruption and that

Ensure that your chosen provider is

Consider the experience and expertise

they will be managed as efficiently as the

equipped to deal with change quickly

that your chosen supplier has in respect

installation process to ensure that they

and effectively. And finally, choose the

of deploying a similar solution.

You

are a seamless process. Cost is another

system that not only caters for today’s

should interrogate them as to lead times

factor that bears thinking about and

requirements but that ensures you are

for delivery, the implementation process

inquiring about in advance too. Some

looked after in future.

that they have and also ensure that the

companies may want to charge you

process is clearly documented.

If an

additional money for regular updates.

organization is installing many similar

This may be unnecessary and may also

systems, they will have a process that

come as a shock to your budget if it isn’t

is tried and tested and you will benefit

planned for.

from

experienced

implementation

analysts and a mechanical process that

Security of investment is therefore

ensures they deliver in accordance with

crucial.

your requirements and on time.

investment still

Is your

going to appear as

wise

in

5

Fundamentally, think that whilst a

years?

company may have a fantastic reputation

your

in a particular field, it may not be yours!

have a product

Ensure that the company specializes

roadmap

in your area of work. Cadbury’s make

the future and

great chocolate but you wouldn’t buy a

is their offering

sports car from them would you?

compatible

So, what makes one IT provider better

with the latest

than another?

i n d u s t r y

Once again, a host of

factors come into play here. potential

suppliers

Do your

understand

and

for

s t a n d a r d s o f t w a r e ?

appreciate the finer nuances of your

In

specialized business model?

when

Have

Does provider

essence, you

are

you asked your suppliers about their

considering

current client acquisition rate?

investment

Have

in

you considered the client retention

new technology,

rate your supplier has in your field of

don’t only look

business? Is the supplier’s presence in

after

your market a growing concern?

consider

the

position

your

today,

As you doubtless realize, the world of

chosen provider

IT is an ever changing one and in order

and

their

14

the barrister

Don't ignore a request to mediate Halsey applied! A note on PGF II SA v OMFS Company [2012] EWHC 83 (TCC)

A

By Tony Allen, Solicitor, Mediator and Senior Consultant to CEDR nother

strong

premises (a point that they had not

not repeatedly followed up, there was

has

pleaded) and about which OMFS would

no evidence of the claimant simply

emerged from the

need to amend at trial;

going through the motions of offering

Technology

2.

that this was “information”

mediation. Implicitly he also accepted

Construction Court

within the meaning of CPR 36.14(4)

the claimant’s assertions that the case

as a warning that

available (or not) to the parties at the

was well suited to mediation; that

judges will not look kindly on a failure

time the Part 36 was made, which if

OMFS did not reasonably consider their

to respond to a proposal for mediation.

available would have materially affected

case so strong as to warrant refusing

In PGF v OMFS [2012] EWHC 83

their decision as to whether to accept it

mediation, and that the Part 36 offers

(TCC), Recorder Stephen Furst QC sat

or not;

constituted evidence of willingness to

as a Deputy High Court judge to hear

3.

PGF had proposed mediation

treat with each other reasonably; and

a dilapidations claim for just over £1

in a Part 36 offer of their own in April

that mediation would not give rise to

million brought by PGF in respect of

2011, and again in July 2011, both of

undue cost or delay.

premises in Lombard Street, London.

which had been ignored by OMFS: these

The

Trial was to start on 11 January 2012,

amounted to unreasonable refusals,

that any adverse order should only be

but on the previous day PGF accepted a

giving rise to grounds for varying the

made from the hypothetical date for

Part 36 offer of £700,000 made by the

normal costs order.

the mediation, finding that the basis

defendant OMFS nine months earlier

The judge broadly found against the

for the sanction is the unreasonable

on 11 April 2011. This terminated the

claimant PGF on the first two points,

conduct, which in this case coincided

substantive claim, and while PGF were

which left only the refusal of mediation

with the Part 36 offers mad in April

entitled to costs up to the date of the Part

as a basis for disturbing the ordinary

2011. Although he declined to award

36 offer, they sought a court order under

costs pattern. The judge applied the

costs to PGF for the period after the

CPR 36.10(4)(b) for OMFS to pay their

tests and burden of proof established by

Part 36 offer had expired, he awarded

costs from April 2011 until settlement,

Halsey v Milton Keynes NHST carefully.

PGF their costs up to the expiry of the

seeking

normal

He accepted that the burden lay on

21 day period in May 2011, and made

liability to pay OMFS’s costs after late

PGF that mediation had a reasonable

no order as to costs thereafter, each

acceptance under CPR 36.10(5)(b). PGF

prospect of success and overall to

party bearing their own. This matches

argued that the ordinary expectation

persuade the court to vary the normally

the outcome in the earlier touchstone

that they should be liable for OMFS’s

expected costs order, but he readily

case (not referred to in PGF) of Dunnett

costs following late acceptance should

found that the defendants OMFS had

v Railtrack.

be varied for three reasons:

behaved

Features of the case

1.

it was only on 10 January 2012

PGF’s invitations to mediate, and that

There are some interesting additional

(the day before trial) that OMFS made

mediation had reasonable prospects of

features of this decision which are

it clear that they were going to argue

success (never easy to challenge when

worthy of comment, and which bear on

that they were not liable for defects

a case actually settled just before trial).

the use of mediation in other sectors.

in the ventilation system because that

He also found that the claimant’s offer

Firstly, the judge was prepared to infer

system was actually outside the demised

to mediate was genuine and, although

from OMFS’s silence in response to the

decision

to

challenge

their

and

unreasonably

by

ignoring

judge

rejected

the

suggestion

the barrister

15

two invitations to mediate that they had

relation to their conduct in a mediation.

to have occurred within a mediation is

declined to mediate, and he found those

He also commented that by ignoring

not admissible later. This is an important

to have been unreasonable.

the 2011 mediation proposal, OMFS

distinction.

Furthermore, there had been a previous

had surprisingly missed the chance to

entirely safe within the evidentially secure

mediation between the parties in 2010

argue that point as an explanation for

environment created by a mediation

over another aspect of the service

their refusal. He was unimpressed by the

agreement, they will be unlikely to move.

charge. The implication sought to be

mobilisation of such an argument so late

It is only in cases where for whatever

raised by OMFS was that PGF had

in the day when faced by a possible costs

reason (usually unwise) both parties

adopted an unreasonable stance within

sanction.

agree to disclose attitudes taken within

the

mediation

This has the practical effect of making it

a mediation that the court can have

and that this was a legitimate factor

very unwise for a party to ignore a good

the right to adjudicate on such matters.

in deciding whether a later mediation

faith invitation to mediate. If the invitee

The outcome for the Earl of Malmesbury

would have been successful. The judge

feels that mediation is inappropriate,

in his claim against Strutt and Parker

declined to receive evidence of the

then they should say so in writing,

([2008] EWHC QB 4240 is a salutary

previous mediation because PGF declined

setting out reasons fully in a way likely

lesson about doing so, demonstrating

to waive privilege. He also refused to

to appeal to a judge later, either in an

that a judge is only likely to find one of

draw any adverse inference from PGF’s

open letter or marked “without prejudice

the parties to have been reasonable in

refusal to waive that privilege, for, as he

save as to costs”. It also underlines

their attitude at a mediation and might

commented:

that unreasonableness demonstrated in

well penalise the other one.

To do so would be to undermine the

declining to mediate can give rise to a

Secondly, OMFS sought to escape a

very protection given to the parties in

sanction, but unreasonableness alleged

sanction by arguing that the mediation

confidentiality

of

the

Unless

parties

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can

feel

16

the barrister

would not have worked because of the

have worked. He shows considerable

understanding

absence of expert valuation reports

understanding of the way negotiations

mediation. This permeates Recorder

when the mediation would have taken

proceed in mediations by doing so. He

Furst QC’s judgment. In commenting

place. Again the judge said:

commented:

on the reasonableness of each party’s

The court should be wary of arguments

Experience suggests that many disputes,

braod approach, he comments:

only raised in retrospect as to why a

even more complex disputes than the

In any event the skill of a mediator lies

party refused to mediate or as to why it

present, are resolved before all material

in drawing out seemingly intractable

cannot be demonstrated that a mediation

necessary for a trial is available. Either

positions.

would have had a reasonable prospect

parties know or are prepared to assume

Later, in relation to the gap between the

of success. First, such assertions are

that certain facts will be established

parties at the time of the Part 36 offers

easy to put forward and difficult to

or, during the course of a mediation,

and the mediation proposal:

prove or disprove but in this case are

such information is made available,

The essence of all successful mediations

unsupported by evidence. Secondly, and

often on a without prejudice basis. The

is a willingness to compromise and/or

in any event, it is clear that the courts

rationale behind the Halsey decision is

the realisation that certain points are

wish to encourage mediation and whilst

the saving of costs, and this is achieved

not as strong as the party believed….

there may be legitimate difficulties in

(or at least attempted) by the parties

in my view, there was a reasonable

mediating or successfully mediating,

being prepared to compromise without

prospect that these parties, given the

these can only be overcome if those

necessarily

a

essentially commercial nature of the

difficulties are addressed at the time.

picture of the other parties’ case as

dispute and being well advised, would

It would seem to me consistent with the

would be available at trial.

have been prepared to compromise and/

policy which encourages mediation by

He

necessary

or would have accepted that various

depriving a successful party of its costs

information first might be a good reason

points raised were not as strong or

in appropriate cases that it should also

for postponing a mediation and for

certain as the open position which they

deprive such a party of costs where

avoiding an adverse costs order, but

adopted.

there are real obstacles to mediation

this was not the case here.

What next?

which might reasonably be overcome

This is often the reason given for not

We can now perhaps anticipate a

but are not addressed because that

mediating, or even trying to settle,

generation of judges which was in

party does not raise them at the time.

clinical negligence claims until very late

private practice in the era during

This is a gloss on Halsey which

in their life before trial. Of course there

which mediation has been normalised

does much to remind us that Halsey

is a trade-off between the savings in cost

and many of whom will have been

actually decides that costs sanctions

and time as against less information

fully involved in representing parties

are permissible against a successful

about the evidence if earlier settlement

in mediations and acting as mediators

party who either ignores a judge’s

is attempted, but what this judge’s

is emerging. They will almost certainly

recommendation or another party’s

approach commends is that this should

make

genuinely

to

normally and legitimately be explored

judicial attitudes and understanding

mediate, so long as the Halsey criteria

by actual engagement in such processes

of the mediation process in ways

are met. Halsey read through the eyes

rather than by participating in a stand-

which

of this decision seems somewhat more

off. No one is compelled to settle in a

and theoretical training cannot hope

daunting than before.

mediation, and the court door remains

to match for effectiveness, nor even

open to any party who thinks their case

the publicising of anonymised case

mediation can achieve even when all

is better heard than settled.

studies, bound as mediation is by the

material has not been assembled to

The third and more general point to

confidentiality provisions which are

the level required for a trial, and was

make about the judgment in HGF v

what make it work so effectively.

prepared to disregard such arguments

OFMS is the pleasure it gives to

in deciding whether mediation would

discover a judge who has an excellent

The

judge

intended

also

invitation

discussed

what

added

having

that

as

complete

getting

a

of

the

considerable

articles

like

dynamics

difference

this,

of

to

seminars

the barrister

17

TO COURT OR NOT TO COURT? THE QUESTION OF ADR OPTIONS IN DILAPIDATION DISPUTES In many Dilapidation Cases, the quantum of damages involved does not make court a cost effective option. In others, the construction technicalities involved may lead to the parties being reticent over referring the dispute to those without specialist technical knowledge and experience. So what alternative options do parties to a Dilapidations dispute have? For claims that warrant the cost, perhaps the most obvious option is to seek reference to the Technology and Construction Court (TCC) which operates within both the County and High Courts. Claims between landlord and tenant for breach of a repairing covenant are specifically listed within the TCC Practice Direction as being appropriate to bring in TCC, which does have the specialist technical knowledge to deal with the issues involved in disputes of this nature, including Diminution Valuation arguments. TCC procedures can have the advantage of being more relaxed and may often seek to deal with trials in stages in the hope of reducing cost. However, they are still court proceedings and although there will be a great deal of effort to keep costs proportional, this may not be the answer in the majority of claims. So would Arbitration or Expert Determination be a better option? In theory, yes. Either is extremely well suited to this type of dispute, allowing the parties to pursue a resolution with the kind of informality and flexibility that can produce fair and cost effective results. However, in practice it is not always easy to find one individual with the experience and knowledge to assess all aspects of a claim and appointing a panel can quickly lead to an escalation in costs that makes court start to look like a viable option. Even if a suitable individual can be found, one or other party often feels reluctant to be bound by a single person’s opinion outside of a court room. Their preference is to seek guidance and assessment rather than a binding decision. It is within this context that perhaps two of the best options can be considered as a single solution.

Early Neutral Evaluation (ENE) is a nonbinding, without prejudice assessment of a claim and of its defence at a stage before a dispute even reaches the courts and before major cost is incurred by either party. It involves a jointly appointed Expert in the field following flexible procedures in order to guide the parties in the relative strengths and weaknesses of their cases. In those ENE’s that I have been involved in, I have been able to sit down with the building surveyors around a table to debate the Scott Schedule and clearly identify where points are being pushed too far on a client’s behalf. The movement that this alone can create towards a compromise settlement often needs to be witnessed to be believed. A similar exercise can then be undertaken with Diminution Valuers but more often in ENE’s I am asked to prepare a single Diminution Valuation on behalf of both parties. Being part of the ENE process this remains privileged but again it will frequently move the parties closer to being able to settle their differences. In my experience the most important aspect of this option is that it does not bind the parties and they are therefore comfortable being open. It does, however, provide invaluable guidance as to how an impartial mind assesses the situation and so long as the process has been entered into with an honest intent to seek a settlement, I have yet to see the parties fail to substantially narrow the gap in their positions. Although Mediation can be an option on its own, it is at this stage, following an ENE, that I have seen it be most effective if a settlement has not already been reached. Again the process is confidential and without

prejudice so will not leave either party disadvantaged. As a result they can afford to be open and to explore a settlement with the knowledge of the likely strengths and weaknesses of their case and without fear of compromising their position. A skilled Mediator armed with an ENE has an extremely strong platform from which to enable the parties to reach a compromise agreement, often incorporating elements that are key to them but which would be impossible, or extremely difficult, to achieve in litigation or Arbitration/Expert Determination. There is always the possibility that one or two issues in a dispute may not be capable of being resolved in this way but even then, following the ENE/Mediation process can lead to a position where the dispute is narrowed to an either/or scenario that can be put before the court with only minimal issues requiring judgement. In this way substantial cost can be saved and a more amicable resolution reached. With ADR and the parties’ conduct being ever more closely scrutinized by the courts, ENE/Mediation is likely to have a strong developing role in dilapidation disputes John Williams is a Fellow of the RICS, an Associate of the CIArb and a Member of the Expert Witness Institute. He is a CUBS Accredited Expert Witness and has 18 years’ experience of Dilapidation Disputes. For More Information Contact John Williams, FRICS ACIArb MEWI

john.williams@mapleleaf-pc.co.uk Visit www.mapleleaf-pc.co.uk

18

the barrister

Minority Legal Orders in the UK By Professor Maleiha Malik

M

inority Legal Or-

Cultural and religious diversity in the UK

nority legal order and a human right or

ders in the UK:

is, and will continue to be, a crucial con-

equality law. Severance is the idea that

Minorities,

Plu-

text in which lawyers and judges make

the different minority practices (norms

ralism and the

decisions. Personal identities are fluid

and rules) can be separated so that they

Law is a new

and an individual can consider them-

can be assessed and evaluated indepen-

report looking at

selves part of several cultural and reli-

dently of the whole minority legal order.

the distinct religious and cultural norms

gious communities. But although indi-

Taken together, cultural voluntarism

of groups such as Jews, Christians,

viduals have choices about their identity,

and severance maintains the right of the

Muslims, and others whose community-

special attention needs to be paid to en-

state (judges, legislators and public of-

based laws are often misleadingly de-

sure that vulnerable individuals within

ficials) to pick and choose whether, and

scribed as ‘parallel legal systems’. Since

a minority – such as women, gays, les-

how, they want to reject, recognise or

9/11 and 7/7 these alternative legal or-

bians, the elderly and children - are not

accommodate the minority practice.

ders have been mainly discussed in the

caused harm because of membership of

context of Islam and sharia law, and of-

their cultural or religious community.

Recent decisions of the UK courts illus-

ten sensationalised by the media as an

For these reasons, Minority Legal Or-

trate the way in which cultural volun-

ominous threat to our liberal democracy.

ders in the UK: Minorities Pluralism and

tarism can work in practice. KC & NCC

the Law recommends that the Equality Minority Legal Orders in the UK sets out

and Human Rights Commission should

v City of Westminster Social and Communities Services Department & Anor1

the practical ways in which the state can

examine the impact of minority legal or-

concerned the validity of a marriage

respond to, and work with minority le-

ders on these groups, especially women

between an incapacitated adult male

gal orders. The report recommends fur-

users who need to have access to reli-

resident in England and his bride who

ther research to understand the impact

gious marriages and divorces. This is

was a Bangladeshi citizen. The Court of

of minority legal orders in the UK and

an important part of the EHRC’s work to

Appeal held that a marriage that was

fully appreciate the impact this legal in-

safeguard the human rights and equality

permissible according to the rules of the

tegration has on individuals. The report

for all citizens, including women from

local Muslim community was not rec-

discusses both the historical and con-

cultural and religious minorities.

ognised under English law because of

temporary experiences of religious and

public policy considerations. Unlike the

cultural diversity that underpins minor-

Minority Legal Orders in the UK sets out

European Court of Human Rights’ deci-

ity legal orders in the UK.

a mixture of approaches and techniques can be used in legal and political pro-

sion in Refah Partisi (The Welfare Party) and Others v Turkey2, the UK Court of

Key points raised in the report include

cesses to make sure that minorities are

Appeal did not make blanket statements

the fact that minority legal orders are

heard, liberal democratic values are up-

that Muslim legal norms (also sometimes

not a new phenomenon. As early as the

held, and that final decisions have cred-

called the sharia) were always and for

medieval period, Europe had laws that

ibility in the eyes of the majority. More

all time incompatible with state law or

overlapped - incorporating different

specifically, legal techniques that are

democratic values. Instead, those Mus-

geographical and cultural legal systems.

available to lawyers and judges include

lim norms that were contrary to public

The report notes that in a modern lib-

the twin concepts of ‘cultural volunta-

policy were precisely identified and held

eral democracy the state is the sovereign

rism’ (which includes ‘severance’) that

to be incompatible with public policy.

legal system. Where there is no conflict

can be a useful guide to adjudication in

with a human right or an equality right,

the context of legal cases that involve

The flexibility that is available through

it is sometimes reasonable for people

minority cultural and religious practic-

a process of cultural voluntarism has

to make requests for the legal accom-

es. Cultural voluntarism allows the mi-

some advantages. It may, however, also

modation of their cultural or religious

nority legal order to function but it gives

have disadvantages because it can cre-

practices, including their minority legal

clear precedence to state law, especially

ate uncertainty. A ‘cultural voluntarism’

traditions.

where there is a conflict between the mi-

approach will make it more difficult to

the barrister

19

predict when, how and on what terms

ranging from absolute prohibition using

port and the executive summary can be

there will be intervention. Individuals

the criminal law through to mainstream-

downloaded at:

who are members of minority communi-

ing. In some situations the norms of the

http://www.britac.ac.uk/policy/Minori-

ties may become unsure about whether

minority legal order will cause harm to

ty-legal-orders.cfm

or not one of their cultural or religious

an individual and they will need to be

practices (such as marriage or divorce)

prohibited, using the full force of the

will be recognised, enforced or carry

criminal law where necessary. In other

1 [2008] EWCA Civ 198

legal consequences. In practice, fears

contexts, there may be no conflict or a

2 Judgment of the European Court of

about uncertainty may be exaggerated.

convergence so that it is possible to in-

Human Rights, Strasbourg, February

The response of the state legal system

corporate some aspects of the minority

13, 2003.

will be easy to predict in situations that

legal order without undermining human

3 See Maleiha Malik, ‘From Conflict to

involve violence, coercion or the clear

rights, equality law or public policy. In

Cohesion: Competing Interests in Equal-

breach of a common human right or

order to decide which approach is ap-

ity Law and Policy’, at pp.15-16, (Equal-

equality standard. In borderline cases,

propriate the state legal system and its

ity and Diversity Forum, London, 2008)

the state legal system will need to pre-

representatives (judges and legislators)

cisely scrutinise the rules of the minor-

need to have detailed and accurate fac-

ity legal order to consider the impact

tual information about minority legal

not only on the individual parties and

orders in the UK. This is why it is im-

minority community but also the wider

portant for us to move beyond the sen-

public interest of the majority.

sationalised discussion of this issue that has focused on Islam and sharia law.

Although cultural voluntarism may cre-

Instead, we need to have a sensible and

ate some uncertainty, this approach also

objective public discussion about how

provides opportunities for the transfor-

the

mation of the minority legal order. Dia-

work

logue between mainstream state legal

tively with minor-

institutions and the minority legal order

ity

can be used to encourage the minority

their minority le-

(cultural or religious) group to reconsid-

gal traditions.

state

can

construc-

groups

and

er their own norms in the light of liberal constitutional principles such as equal-

Author Details:

ity. One recent example that illustrates

Maleiha Malik is

this point is the negotiation between

Professor of Law

the Disability Rights Commission and

at King’s College,

Muslim religious authorities that led to

University of Lon-

the restatement of Muslims norms that

don.

had previously prohibited contact with

School of Law

dogs. This restatement made clear that

King’s College

Muslims could come into contact with

University of Lon-

guide dogs in order to provide services

don

(such as access to restaurants and taxis) to the blind and the partially sighted.

Minority

This particular dialogue between the

Orders

Disability Rights Commission and Mus-

UK:

lim organisations was so successful in

Pluralism

and

permanently shifting Muslim norms that

the

was

some mosques have now allowed entry to guide dogs3.

published by the

Legal in

the

Minorities, Law

British Academy Policy Centre on

A liberal democracy can follow differ-

19 April 2012.

ent approaches to minority legal orders

Copies of the re-

Sometimes it’s not the piano that needs restoring, it’s the pianist

Make a difference to musicians’ lives by leaving a Gift in your Will For more information, call 020 7239 9100, email legacy@helpmusicians.org.uk or visit helpmusicians.org.uk 7-11 Britannia Street, London WC1X 9JS Chairman The Hon Richard Lyttelton | Chief Executive David Sulkin Registered Charity No. 228089

20

the barrister

The politics of fee sharing By John Binks, Bar Consultancy Network

T

his at

article

looks

arrangements in AGFS cases between

Whilst the manner in which such

for

solicitor and counsel the Bar’s solicitor

models may operate will vary it should

publicly funded Crown

competition

competitors are not subject to similar

be expected that the principles on which

Court work, the impact

professional

they will be based will be common.

of the increasing trend

incentives available to solicitors for

of

offering

referring cases to external HCAs have

their HCA services to other firms as an

become ever more significant. HCA fee

alternative to the independent Bar, and

splitting arrangements on an individual

at opportunities for the Bar to respond

case basis are followed by the increasing

with new business models.

emergence of bulk agreements between

In 2007 the Legal Services Commission

firms for the referral of most or all of

revised its Advocated Graduated Fee

their crown court work. The fee splits

Scheme (AGFS).

It opened the door

on such arrangements can result in

for fee sharing in Crown Court cases

the referring firms retaining as much

and for agency arrangements between

as 30% value of the work passed on.

independent firms of solicitors employing

Within such agreements some of the

HCAs. The Bar Council responded by

most serious top end work will still

suggesting such arrangements were in

leak out to the Bar, but even these

breach of both BSB and LSC rules on

volumes of work will decrease as the

referral fees.

HCAs involved become more confident

The LSC contract does prohibits the

and more experienced at top end work.

payment of referral fees of any kind in

This should be an issue for real concern

legal aid work (and SRA rules prohibit

for the Bar. Whilst the largest top end

payment of referral fees in crime) Both

firms have for some time been able to

the LSC and SRA do however allow

retain the majority of advocacy work

agency agreements.

Consequently if

with in house HCA’s the percentage of

a bona fide agency agreement exists,

overall crime work going through the

then any money changing hands by way

biggest firms is in reality fractional. The

of fee sharing within that agreement

vast majority of crime work is covered

is necessarily not a referral fee.

In

by mid-range firms who often cannot

response to Bar Council concerns, the

justify maintenance of expensive HCA’s.

LSC published Guidance: Fee Sharing/

The opportunities now arising for these

Referral Fees of November 2009. The

firms to ship out whole-sale their crown

LSC did not accept the Bar Council

court advocacy in return for a significant

interpretation of fee sharing as ‘referral

fee split is extremely tempting for them,

A vehicle that contracts and itself

fees’, and in Referral Fees, Referral

and extremely damaging to the Bar.

delivers

Arrangements and Fee Sharing in May

Models are emerging that can offer firms

advantage that it can both guarantee

2011 the Legal Service Board, the BSB/

the possibilities provided by solicitors

and closely control the manner in which

SRA regulator followed suit .

offering HCA agency services , with the

the services are delivered. From the

Thus the ring fencing that protected

added ( and very significant) advantages

point of view of any purchaser of legal

counsels’ fee for Crown Court advocacy

that they are not compelled to deal with

services these are extremely attractive

was effectively removed.

potential competitors, and they are able

qualities, in particular for the LSC and

Whilst the Bar Counsel has attempted

to continue ot access the services of

local authorities for whom the political

to limit the extent of fee splitting

experienced and trusted counsel .

and financial cost of failure of delivery

solicitors

controls.

The

price

1. They will supply services direct: In the principle of the Procureco is not a bad idea. A vehicle designed to secure high volume work to be allocated to regulated providers can work exceptionally well. Day time TV carries endless streams of adverts for companies seeking

personal injury

claims, and more recently employment protection

insurance

based

claims.

What is questioned is whether buying into a model that may have potentially placed the Bar in competition with companies unregulated to supply legal services is a good idea. The Bar should perhaps breathe a sigh of relief that the LSC in particular never warmed to dealing with Procureco, or any other unregulated middle- man. In electing to do so procurement law may well have required the LSC to entertain allcomers, compelling them to take bids from any unregulated company offering to subcontract LSC work in the manner of the Procureco. 2. As they do supply services direct they will be regulated:

legal

services

has

the

21

the barrister

bounces back on the purchaser and is

LSC

direct

present, but which inevitably become

ultimately borne by government, Direct

public access. At the same time areas

more prevalent when some areas of

provision means the vehicle must be

of the solicitors profession threatens

work (and associated fees income)

regulated within the terms of the Legal

to ‘blacklist’ any chambers having the

decline, are often not

Services Act 2007.

In dealing with a

audacity to make change to ensure that

Whilst

regulated body the client is however

the Bar survives as a referral profession

is of course serious counsel should

buying a guarantee of quality and

for publicly funded crime. Both halves

increasingly bear in mind the effect of

probity the unregulated Procureco, or

of the profession are good at what they

any such sanction on the ability to be

any other similar vehicle, can never

do, the models that are most likely to

involved in new models and associated

offer.

succeed are those that allow them to

tenders for work. LSC tenders have

concentrate on that and support each

for some time included a requirement

other.

to declare issues arising out of breach

3 For the foreseeable future, the choice

contracts

and

pursues

of regulator will be the Solicitors Regulation Authority.

of

any

professional

regulatory

sanction

requirement.

This

Whilst the creation of such entities

requirement has not touched counsel to

carry’s

an

date, but may well do in future. Of more

Whilst the BSB does not currently

unwelcome move into the realm of

immediate impact are requests for such

regulate any structure other than the

solicitor

declarations

traditional chambers model, barristers

opportunity of engagement in current

in local authority tenders. Breach of

seeking to change business models do

markets rather than standing in the

regulatory

have a choice of regulator. A vehicle

side-lines. They offer

designed and controlled by barristers

of

with the primary purpose of providing

solicitors,

advocacy services may still elect to be regulated by the SRA as long as

suits the client (rather than as dictated

any professional sanction could be long

it includes at least one solicitor at a

by LSC funding arrangements)

They

lasting, and counsel should always of

managerial level. Whilst this new entity

afford

the opportunity of offering

course bear in mind their responsibility

may be an ABS, it may well be wholly

a choice to those now referring, or

for actions of their clerking staff as well

lawyer (i.e. solicitor and barrister)

considering referring advocacy work to

as personal actions.

owned. In the latter case the entity may

HCA firms. Barristers can offer their

For those that invest time and effort in

opt to be a traditional ‘authorised body’.

services to solicitors on a level playing

change the rewards can be great. At

SRA registration will be quicker and

field with common regulation.

least one SRA regulated entity already

less complex, and the end result may be

The regulatory arrangements, simplified

operates within some of the principles

more attractive to insurers. Whatever

for the purposes of this article, are

outlined above and others are sure to

form of model is chosen inclusion of

complex, particularly so in implementing

follow. Whilst the structural change

barristers and a solicitor will create

models designed to reduce or remove

required is relatively simple the cultural

dual regulation. Whilst the barrister

loss of work due to conflict, and to allow

change required is significant. Crucial

members will personally be regulated

the retention of prosecution practices.

is a move from operating on the basis

by the BSB the entity will be regulated

It is however of course crucial that

of personal interest to operating as a

by the SRA. In cases of conflict as to

regulatory requirements are adhered to,

corporate entity with a corporate will.

what the competing regulations allow

and as

both branches move into an

The level of commitment by all involved,

the section 52 of the Legal Services Act

era of outcome focussed regulation it is

and the degree of change that has to be

2007 specifies that the entity regulator

not always completely clear how those

accepted in order to achieve success

will crucially prevail.

requirements may be best demonstrated

should not be underestimated.

some

cost

insurance)

(including they

bring

the

now

becoming

requirement

routine

accordingly

the flexibility

carries with it the possibility of sanction

with instructing

by regulators, and additionally a bar

providing services in a

to future involvement in elements of

manner that is most efficient and best

competition. The personal nature of

working together

. 4. They will concentrate on doing

The

what they do best:

commencement of this article, whilst

innovations

unwelcome

in

mentioned some

at

quarters,

the do

At a time when both branches of the

operate within the ambit of current

legal profession may profitably support

regulatory and contractual BSB, SRA

each other the Bar pursued a Procureco

and LSC requirements. More informal

model aimed at competing direct for

practices, which have always been

news round up

22

the barrister

Chair of Criminal Bar Association: The Criminal Justice System is at Risk

'A judiciary for the 21st century' public consultation and Crime and Courts Bill

Max Hill QC, Chairman of the Criminal Bar Association (CBA), warned the Government that the criminal justice system is at risk because barristers’ role within it is becoming increasingly less viable.

JAC Chairman Christopher Stephens said: "The JAC welcomes the Government's proposals. These include many very positive changes.

The results of a survey of CBA members show high levels of disaffection at the criminal Bar. The majority of respondents had experienced delays in payment from the Legal Services Commission and 89% would be willing to take direct lawful action, such as refusal to attend court. Speaking at the CBA’s Annual Dinner at Middle Temple Hall, to an audience including the Lord Chief Justice of England and Wales he said: “Who are the guardians of the public interest, the gatekeepers for access to justice and the protectors of the rights of the individual in British society? Politicians like to think it is they who stand for Joe Public, and they who hold greedy lawyers to account. But that is not the truth now, if it ever was before. “[…] We at the criminal Bar uphold the public interest in access to justice and the maintenance of a proper criminal justice system, whilst it is the Government who are obsessed by money. “[…] I came into this job, when elected as Vice Chairman two years ago, knowing it would not be easy. I knew that, against a background of financial recession, the new Government would implement the three-year plan for defence fee cuts announced in the dying days of the old Government. I knew that the current administration was set on carving up the publicly-funded legal landscape […].

"We are pleased to see provisions to extend salaried part-time working to the High Court and above and for the JAC to have more involvement in the selection of Deputy High Court Judges. The principles that there should be a lay chair and an odd number of members for senior selection panels are also positive. "In relation to the JAC, we are happy the Lord Chancellor wishes to retain the current number of Commissioners for now. "We also welcome the introduction of a specific provision to clarify that where two persons are of equal merit, the JAC can select the more diverse candidate. It is essential to be clear on the detail of how this will work in practice. We will work with the Ministry of Justice and interested parties on this and will continue to stress that increasing the diversity of the pool of eligible candidates is just as important for judicial diversity." The Ministry of Justice (MoJ) response to the consultation can be read on the MoJ website, where there is also information about to the Crime and Courts Bill.

Bar Chairman tells Russian Legal Forum – We must be Committed to the Rule of Law Michael Todd QC, the Chairman of the Bar Council, which represents barristers in England and Wales, told delegates at the second St Petersburg International Legal Forum that the legal community must share a commitment to the rule of law if it is to remain relevant to the societies and clients it serves. Speaking after the Lord Chancellor and Secretary of State for Justice, the Rt Hon. Kenneth Clarke QC MP concludes his remarks, Michael Todd QC, who recently addressed the leaders Cayman Islands' legal community on ethics and the rule of law, will say: "As legal services become increasingly globalised, it is more important than ever that we share common values, which stand above and apart from our commercial interests. They are an unerring commitment to the rule of law and an independent and transparent judicial process. As lawyers, whatever the public perception of us may be, if we are to secure the confidence of our commercial clients and the public in a justice system which is and is seen to be fair and equal, then we must ensure that it is open and accessible to all and that we act with the highest standards of ethics and integrity. "This forum provides an excellent opportunity for us to share our domestic experiences and consider how we can effectively ensure, together, that we translate those positive examples onto the international stage. That is the foundation upon which the relevance and attractiveness of our services must be built."

the barrister

CILEx “extremely New Laws To disappointed” as Promote Diversity LASPO Bill is set to Among Judges become law More women and people from minority The Chartered Institute of Legal Executives (CILEx) is extremely disappointed that after a parliamentary passage that saw it defeated 14 times in the Lords, the controversial Legal Aid, Sentencing & Punishment of Offenders Bill (LASPO) now awaits Royal Assent. Chief Executive of CILEx, Diane Burleigh said: “CILEx is extremely disappointed by the Government's rejection of Lord Pannick’s amendment; ensuring people should have access to legal services that ‘effectively meet their needs’. It was absolutely vital that the Bill contained a statement of principle that the purpose of legal aid is to promote access to justice within the available financial resources. “The Bill still fails to recognise that equal access to the law is fundamental to the functioning of democracy. People need to have the means to enforce their legal rights. The Bill will remove such means from some of the most disadvantaged groups in society. Justice will pay the price of these reforms.” Speaking at CILEx’s historical graduation on Monday (23 April 2012), Lord Phillips of Sudbury criticised the bill, stating: “Law is vitally important in the lives of our fellow citizens, more so today than ever before, there is no justice in a democracy unless it is available to the poor and the rich." Lord Pannick did not push his amendment further, but, referring to the coalition's plans for Lords reform, said that if he were a member of an 80% elected House he would have pushed his amendment. He described the bill as "bad" but Shadow Justice Minister Lord Bach went further, saying that the Bill's provisions on social welfare law "are not just bad, they are wicked.”

backgrounds will be encouraged to become judges under plans announced by Justice Secretary Kenneth Clarke. Mr Clarke revealed that new laws would be put in place to remove obstacles which can limit diversity in the judiciary. They include changing the rules to extend part-time working patterns for senior judges, intended to help balance work and family lives, and enabling ‘positive action’ for appointments – meaning that if two candidates are completely equal in their abilities, a selection can be made on the basis of improving diversity. The moves will not change the over-riding principle of appointments based on merit but are intended to enable clear career progression, encourage applications from a wider talent pool and continue to create a judiciary which reflects society. The changes are the latest part of ongoing work to bring more diversity among judges, which is being carried out in partnership with the judiciary, the Judicial Appointments Commission (JAC) and the legal professions. Justice Secretary Kenneth Clarke: “We are lucky in this country that we have the finest judiciary in the world. We intend to build on that – we will continue to recruit the very best judges but at the same time we will do what we can encourage top applicants from a diverse range of backgrounds, so that the judiciary better reflects society.”

23

news round up

Legal Profession Unites For Largest Ever London Legal Walk The legal profession showed their support for the free legal advice sector. A record-breaking 6,000 people have signed up to participate in this year’s London Legal Walk, which last year raised £497,000 for legal advice services providing free support and assistance to some of the most vulnerable members of society. The Chairman of the Bar Council, which represents barristers in England and Wales, and the Presidents of the Law Society, which represents solicitors, and the Chartered Institute of Legal Executives (CILEx), which represents chartered legal executives, will be among those leading this 10km sponsored walk around some of London’s legal landmarks. The London Legal Walk is the largest of many legal walks taking place across the country, attracting the support and participation of senior judges, lawyers and politicians, including the Lord Chief Justice, the Master of the Rolls, the Attorney General and the Director of Public Prosecutions. Michael Todd QC, Chairman of the Bar Council, said: “At a time of deep cuts to the public purse, including legal aid and local government budgets, the funds raised by the London Legal Walk are needed more than ever. I am proud to be leading thousands of walkers in support of the many excellent organisations providing free legal advice across London, all of which provide vital support to people in their darkest hours.”

24

the barrister

Digital Evidence:Managing the Challenges By Peter Sommer

P

ersonal

computers

overall case. Parallel with the recording

can be found in three

of events on computers directly linked

quarters

to individuals are records created by

of

homes,

British

Evidence location and identification

all

third parties such as ISPs, banks, other

permanently connected

financial institutions and many large

In criminal proceedings the work of

to

via

organisations – much of which can be

identifying sources of likely evidence

a

obtained via a court order under CPR

will probably have been carried out by

business that does not make extensive

31.17 or, for proposed litigation, a Norwich Pharmacal order1.

the police but in most civil litigation

broadband.

There

the

nearly

briefly in turn:

Internet

is

scarcely

use of computers if only for accounts, banking and tax returns.

There are

an important task for both solicitors and counsel is to assist their client in

130 cellphone contracts per 100 of

Digital evidence can show intentions,

understanding

the population, 11 million of them are

indications

exist. The e-disclosure questionnaire

smartphones, in effect computers. There

movements of individuals over time.

of

research,

even

the

is a reinforcing multiplier: cheaper,

what

evidence

might

was not designed specifically for this but it helpfully draws attention to such items

more powerful computers with ever

The

lower cost bulk storage coupled with

evidence presents both opportunities

including e-mail,

faster communications speeds stimulate

for lawyers – the possibility of much

electronic documents and electronic

entrepreneurs to create new types of

detail about a sequence of events –

databases – and all their back-ups. It is

Internet based services, including social

but also a number of challenges: the

perhaps less good, in its current form,

media - which in turn prompts increased

material has to be located,

formally

in requiring respondents to consider the

ownership and usage of computers.

acquired,

analysed,

range of computers upon which material

abundance

of

potential

preserved,

digital

as the forms of electronic communication the various types of

properly interpreted and then presented

may be found and in particular stressing

Everywhere an individual goes extensive

in palatable form to a court.

With the

that much information may now be

digital footprints are being created; all

greater use of informal material, issues

located on personally-owned computers

can become evidence and if not, may

of the probative value of some forms of

as well as on more obvious "corporate"

need to be disclosed.

computer evidence come to the fore.

machines.

A few years ago "computer evidence"

For many practitioners, one suspects,

meant

formal

the complexity and size of the tasks only

transaction records of a business plus

became apparent when the E-disclosure

the examination of computer hard disks

rules came into force in October 2010.

to recover deleted files. But today it is increasingly difficult to separate out the

CPR31 now has a detailed questionnaire as Practice Direction 31B2. It indicates

"cyber" elements in people's lives. In a

the thoroughness with which parties are

very wide number of civil and criminal

expected to discharge their disclosure

cases

particularly

obligations. But it also provides useful

from relatively informal sources such

guidance to finding valuable evidence in

The next stage is the process of formally

as emails, social network postings,

the first place.

acquiring evidence so that it can become

printouts

digital

of

evidence,

the

tweets, blogs and the like, have become an important part of the building of an

For more complex exercises or where there is a suspicion of concealment wilful destruction or forgery it may be advisable to call in a specialist expert with

knowledge

of

large

corporate

systems.

Evidence acquisition

if required an exhibit. Activity within a We can take each one of these challenges

computer is highly volatile and most

the barrister

25

digital exhibits are snapshots at a

advise on legality of methods – what is

an ultra-reliable method of recording

particular point in time. It is all too easy

technically feasible may be illegal or

all activity on the computer but as a

for evidence to be contaminated in the

attract judicial sanction.

convenient personal operating system. As

course of collection. The Association of Chief Police Officers (ACPO) has a

a result many of the features that would Evidence preservation.

frequently updated publication called

be ideal in forensic analysis - in terms of recorded sign-on and sign-off times,

Practice Guide for Computer Evidence3 which contains both general

Preservation of evidence is separate from

account security, the clear identification

acquisition but is part of "continuity".

of dates and times of activity and of

principles and specific advice. For the

The usual method is to deploy "digital

authorship - are simply not available

individual personal computer the gold

fingerprinting" or "hashing". Essentially,

directly. It is often possible to infer such

standard is the forensic disk image.

once a disk has been imaged or file

things,

Typically the hard disk or other storage

retrieved a mathematical procedure is

When a computer is set up it often has

medium is placed in special hardware

deployed to create a "result"; any exact

a registered owner, there may also be

which stops the disk being written to and

copies should produce the same result.

user accounts and individual programs

Good

but misinterpretation is easy.

specialist software is deployed to make

such as Microsoft Office may also be

a copy of the entire contents including

“registered” to a named individual.

locations which appear to be empty.

Evidence examination, analysis.

The process freezes the scene but also

Any of these may appear to point to the authorship of a document, however at

optimises the opportunity for advanced

Most computer examiners begin an

the relevant time some-one else entirely

recovery of deleted matter. A further

investigation by establishing some basic

may have been sitting at the keyboard -

advantage is that once the disk image has

parameters:

because security is weak.

been created the original machine can be

system, when it was installed, when it

safely left in storage and as many copies

was last used, the identity of the main

Similar traps exist when establishing

of the disk image supplied to whoever

user accounts and the main programs.

dates and times. The “file created” date

wishes to examine it.

But thereafter much will depend on the

as displayed by the operating system in

instructions they had been given. The

fact refers to when the file was first on

But this procedure plainly does not work

size of today’s hard disks and complexity

that particular computer; the file may

for large computer systems where there

of operating systems mean it is no longer

have come into existence on another

are the twin problems of quantity and the

possible to expect an exhaustive report.

computer and then copied to the location

need to keep the system running during

Yesterday’s computer review may have

where it has been founded. The original

collection if the business that it is serving

been like examining a single desk drawer

location of a file on a hard-disk may speak

is not to suffer. A controlled, considered

but today a better analogy is entering an

to how that file arrived and whether it

extract must be taken. In this situation

office full of filing cabinets.

is reasonable to infer that an individual

a computer’s operating

one of the other strictures of the ACPO

user of that computer had knowledge of

guidelines comes to the fore – the need

A skilled examiner, aided by a range of

to maintain a full audit trail of all activity.

specialist software, is able to locate files

its existence.

of interest, recover deleted material, Evidence presentation

Carried out properly the process of

show patterns of web browsing and

evidence acquisition produces a witness

e-mail usage and develop chronologies

who can be cross examined as to what

of events on the computer. In a practical

Raw computer evidence is usually not

they have done (and any judgements

situation much of this material may

court-friendly. At its most basic it consists

they have made during the exercise) but

need to be linked to other evidence and

of electromagnetic ones and zeros and

a series of exhibits which are difficult to

timelines elsewhere in the case.

even in the simplest of situations it is

reject.

necessary to print out a file – a document Several traps exist to prevent the analyst

or a picture. Analytic extractions often

investigation

from producing unambiguous results.

have to be made

counsel may find themselves asked to

Windows was not designed to provide

databases and computer histories.

During

a

live

internal

from original raw

26

the barrister

Here it is important that sight is never

files had been retained but again upon

lost of where this material comes from;

examination it was entirely possible for

even if not directly tendered in evidence

someone to enter the folder containing

opposing experts will want to go back

deleted e-mails and then selectively

to the original and decide whether they

carry out further deletes. In effect the

agree with the evidence production

dispute had to be resolved without

method or come to different conclusions.

relying on the computer evidence.

Print-outs and CDs of extracted evidence can omit important context.

Start early!

Thus for counsel they have to address not only the immediate advocacy needs of court presentation but also the opportunities for the other side to test.

The potential quantities, complexity and constant novelty mean that counsel have to adapt their case management skills

to

include

the

identification,

acquisition, analysis, interpretation and presentation of digital evidence if they

Forensic readiness programs

are to give clients the necessary quality

Slowly large organisations are preparing themselves for the eventuality that they may need to be able to produce reliable evidence from their computer systems and have a formal planning for doing so – a companion to the document retention policy and the disaster recovery plan. The consequences of not doing so can be illustrated by a recent experience as a single joint expert. Evidence for a contractual arrangements were said to exist in e-mail exchanges. The claimant produced printouts of a handful of e-mails, the defendant said he had never seen them. Because of the passage of time none of the original hardware

of advice. Peter Sommer More

details

can

be

found

at

www.pmsommer.com. This article is partly based on his recent publication from the Information Assurance Advisory Council, Digital Evidence,

Digital

E-Disclosure:

A

Investigation Guide

to

and

Forensic

Readiness for Organisations, Security Advisors

and

Lawyers

can

be

downloaded from: http://www.iaac.org. uk/_media/DigitalInvestigations2012. pdf

was available for inspection so that full-scale

forensic

disk

examination

was impossible. The claimant had had a policy of archiving e-mails of interest into text files but these have been lost when a computer had failed; remained

were informal

all that printouts

which when examined were in a number of different formats. Forgery would have been trivially easy though there was no indication that this had occurred. The defendant's position was only slightly better; original e-mail archive

1 Norwich Pharmacal Co. & Others v Customs and Excise Commissioners [1974] AC 133 2 http://www.justice.gov.uk/courts/ procedure-rules/civil/rules/pd_part31b 3 http://www.7safe.com/electronic_ evidence/ACPO_guidelines_computer_ evidence.pdf

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

the barrister

27

The Association of Women Barristers The future of the AWB is bright. We have an engaged and ambitious committee, headed by Pamela Oon and Ann Cotcher QC and we continue to hold events to support women at the bar By Mair Williams, Pupil at 187 Fleet Street Chambers and AWB Committee Member.

T

he

Association

Women

of

leading and promising). In some cases

have been rehashed and rehearsed in

Barristers.

women are also Heads of Chambers, al-

the pages of every legal publication for

Not the most modern

though you won’t need more than your

the last year so I do not intend to re-

sounding

organisa-

fingers and toes to count them, and fe-

peat them here. What we try to do at

tion, but one that has

male pupils are regularly outnumbering

the AWB is examine the issues that di-

represented the views

men. The simple truth is that although

rectly affect women within the context

and interests of women at the bar for

things have shifted considerably in the

of changes at the bar in general. There

over 20 years. In that time it is certain-

last 20 years, and no one can deny that

would be no merit in focussing solely

ly fair to say that the battle lines have

progress has been made, the AWB re-

on women-centric developments, we

shifted – women can now wear trousers

mains relevant in providing opportuni-

have to continue to try and examine

in court (hoorah), are regularly(ish) ap-

ties and support for women.

and analyse all changes that affect the

pointed judges and even make silk (the figures in relation to this are both mis-

bar. The AWB is fortunate enough to Issues concerning QASA and LASPO

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have members that have experience in

28

the barrister

a broad spectrum of legal fields, and we

of members of the bar without worrying

recorder recital/dentist. In the red cor-

use this breadth to our advantage. We

about looking stupid or inexperienced,

ner are the more flexible ladies who

also have male members that afford a

and at the AWB we pride ourselves on

believe that when a woman is good at

further dimension of opinion, and more

having a no-question-too-stupid mantra,

what she does, and she chooses to have

male members are always welcome.

and sticking to it.

children, her profession should support her to continue to build a successful

One of the great strengths of the AWB

There remain some issues that will al-

practice whilst juggling commitments at

is that it brings together women who

ways be felt more acutely by women, in

home. The latter favour working from

embody each facet of the modern bar –

particular those concerning balancing a

home (when possible), flexible working

self-employed barristers; employed bar-

career at the bar with having a family.

conditions (i.e. scanning papers where

risters; CPS advocates; Judges; pupils;

The AWB have always championed the

practicable) and not being sent to cases

silks; law students.

And that is what

potential for the formation of a crèche

hundreds of miles away.

the modern bar has to be about – ad-

in one of the Inns and continues to look

aptation. There is no point in defining

at different business models that could

There is no right way to be a woman at

your practice as x and refusing to move

make such an idea work. Another con-

the bar, but often people feel that they

to y, and the AWB is all about ways of

cern for women at the bar seems to be

know how-not-to-be a woman at the bar.

adapting your practice to complement

maternity leave, a topic that often crops

One example has to be talking about

the changing environment. What we do

up in AWB meetings. The bar has shift-

children. As a pupil in chambers, one

at the AWB is provide frank information

ed away from the idea that a woman

of my favourite experiences is seeing ag-

about what different forms of practice

who has been through labour has also

gressive, demanding, burly male mem-

entail and what the advantages and dis-

undergone a lobotomy (huzzah), but

bers of chambers reduced to giggling

advantages of each are.

older members of the AWB tell of how

schoolgirls when they show you photos

they were expected to return to work

of their children on their phone or coo

A further strength of the AWB is that

within days of giving birth or paid full

over the milestones of their offspring. I

it brings together women at different

rent whilst on maternity leave. Others

cannot imagine the same from a female

stages of their careers with different

hid pregnancies under their gowns for

member of chambers and perhaps that

energies and anxieties.

Our student

months, worried about the implications

is because many of the women in my

members have an unbridled enthusi-

such a revelation would have on their

chambers with children remember the

asm that often borders on obsession for

practice. Nowadays women have chil-

days (or were told of the days) when that

the self-employed bar.

dren and return to have successful prac-

simply would not be done.

No casual cli-

chés about a sinking ship will dampen

tices, most of the time.

their enthusiasm for joining the profes-

Maternity leave is of course only one is-

sion (just as it didn’t for everyone under

At the AWB we hear too many stories

sue – access to work, type of practice,

ten years’ call), often at great expense

of women whose sets still do not have

judicial appointments, applications for

(personal and financial) to themselves.

a maternity leave policy (which deter-

silk, all raise some concern about rem-

This passion for the profession serves

mines possible rent breaks, reduced

nants of sexism, although the landscape

as an elixir to the sensibilities of the

clerks fees or protocols for notifying so-

is vastly improved. What we certainly

sometimes fatigued senior members of

licitors) or who struggle to have any flex-

find is that a lot of people (men and

the association, who take great solace

ibility with their working hours when

women) do not like to discuss these is-

in seeing such burgeoning enthusiasm,

they return to work.

This is a topic

sues within chambers, so organisations

and in finding ways to be of assistance

which will always split feminists – in the

like the AWB provide a valuable forum

to those young hopefuls. In exchange,

blue corner we have the iron ladies who

for support and advice.

experienced members of the association

believe that women who want to work,

an anonymous group, we respect the

are able to provide a warts and all eval-

even if they have children, have to com-

need for barristers to have a place where

uation of what is (hopefully) just around

pete on an even playing field to men.

they can vent their frustrations and ask

the corner. There are not many oppor-

No flexi-time. No working from home.

questions without any judgement and

tunities for law students to ask questions

No early afternoons for the school play/

without their being any negative conse-

Although not

the barrister

quences for their practices. The future of the AWB is bright.

29

tion in partnership with the CPS and the

dogged it for the best part of a decade

English Collective of Prostitutes in April

and the AWB is part of that awakening.

We

this year. The intention is for similar

It is not about advancing the plight of

have an engaged and ambitious com-

events to take place in the Autumn, with

women at the bar at the expense of men,

mittee, headed by Pamela Oon and Ann

a view to future events being CPD ac-

that would be ridiculous, and the bar

Cotcher QC and we continue to hold

credited. Possible future topics include

faces enough challenges without turning

events to support women at the bar. In

forced marriage and human trafficking.

on itself. It is simply about being part

recent years we have regularly attended

We have also increased our presence

of a more modern, vibrant English bar,

the pupillage fair at Lincoln’s Inn, held

online by joining twitter (@womenbar-

which has organisations that seek to

clinics to assist with OLPAS/Pupillage

risters) and facebook, (www.facebook.

protect and advance the interests of its

portal applications (that include the op-

com/associationofwomenbarristers)

in

members. The AWB is such an organi-

portunity to discuss your application

order to complement our website (www.

sation. No bra-burning, no man-hating,

one-to-one) and regular clinics to assist

womenbarristers.co.uk).

just good advice.

applications for silk. Peppered among

we continue to grow and expand we

these serious events, our calendar also

have kept our membership costs as low

boasts social occasions, including a din-

as possible, particularly in respect of

ner in the House of Lords to celebrate 20

student members who still only pay ÂŁ10/

years of the AWB.

year, and we are committed to making

Even though

as many of our events as possible free. We have done our best to broaden our reach as well, holding a successful semi-

The bottom line is that the bar in gen-

nar on the law in relation to prostitu-

eral is waking from the inertia that has

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30

the barrister

Not broken, but in need of fixing The Criminal Bar is facing challenges on several fronts: pressure on fees, a downturn in top-quality instructions and, above all, the government’s predicted £350m reduction in the legal aid budget. Chambers are responding to these challenges by diversifying and becoming more commercially focused, as Guy Hewetson writes.

R

ecently, I spent time

profession on the other side of the

in rules in how Chambers could market.

speaking to some 20

fence, so, increasingly, Chambers need

We recognised the absolute importance

sets of Chambers to

to view themselves as businesses as

of how we presented ourselves on our

discover more about

well as practitioners of an honourable

website, which was - and is - often

their strategies for

profession.

the first contact point for prospective

responding

to

the

clients.”

challenges faced by the Criminal Bar,

Some four years ago One Paper Buildings

The two looked closely at the financial

in particular. I deliberately chose sets

hired its first Marketing Director, Brett

management

that are perhaps less well known, since

Carver. Brett’s brief was not simply

analysing costs to the last detail (“even

I believe that they are making up for

to organise events and put together

down to where we source biscuits for

their reduced profile by being at the

pretty brochures; he was specifically

client meetings,” jokes Mark Cornell)

cutting edge of change.

To compare

taken on to work closely with the

and implementing weekly, rather than

and contrast I also spoke to a leading

Senior Clerk, Mark Cornell, and the

monthly or quarterly, meetings of the

regional set.

heads of Chambers to address the whole

number crunchers to ensure regular

operation of the Chambers. Business

monitoring of the business. It was

was not a dirty word: the Chambers set

a direct leap, almost, from the 19th

In this article, I will draw together some

itself clear objectives of increasing fees

Century to the 21st Century.

of the key findings of my, admittedly

and profitability and broadening the

unscientific, survey of the sets.

Just

work base. Speculate to accumulate - to

Other sets have recruited top people

by way of a disclaimer, and to avoid

use that old business handbook dictum.

in

upsetting any of those I interviewed and

of

management

James

Street,

a

the

Chambers,

positions. specialist

Great set

in

have not quoted directly, I am only using

This was a bold move, and broke

crime, extradition, immigration and

a selection of quotes, but the conclusions

new ground. Criminal sets had rarely

administrative law, hired Senior Clerk

are based on all of my interviews.

before been inclined to have a senior

Michael Bazeley to focus on the business

commercially-oriented

individual

of the set. New Park Court Chambers

assisting clerks with marketing and

in Leeds recruited Michael Meeson to

business development initiatives. Brett

be its first Chief Executive about a year

One Paper Buildings, which comprises

Carver explains how he went about his

ago.

five QCs and 41 juniors, is a mid-

task of working with the senior Clerk

been responsible in his previous set for

sized

and the heads of Chambers: “When

increasing earnings nearly fivefold in

to

I first joined, my initial remit was to

his 10-year tenure.

compete successfully in a dramatically

look at how the Chambers presented

changing market. Central to its future

itself. Early projects included instigating

development has been the imperative for

a quarterly newsletter for our clients,

a clear strategy and a more commercial

developing a direct access website

approach to running the business. And,

and then re-designing the chambers

The focus on business is also determining

just as has happened with the legal

website. This coincided with a change

Chambers’ recruitment policy. Where,

Finding 1: The Commercial Imperative

that

but has

highly

ranked

confronted

the

chambers need

That was quite a catch: he had

Finding 2: Recruit Selectively

31

the barrister

before, the old boys’ net might have influenced

which

barristers

Finding 3: Don’t Merge

safety in numbers; we feel that is a

joined,

misguided approach. If five of those

those joining now have to prove a

The focus on business, quality and

members

business case - again, as happens when

common

a

commercially, then undoubtedly that is

law firms make up partners. Typically,

bearing on the next big challenge for

something we would consider seriously.”

many sets operate on the 80/20 rule -

the profession: consolidation.

80% of revenue generated by 20% of

another way, to merge or not to merge?

Where mergers might be more viable

members - and that means that they

Almost universally in London the view

is outside London. Consolidation makes

cannot afford to make poor choices on

was that wholesale merger was a

more sense in the regions, bringing

potential tenants: One Paper Buildings

doomed strategy. It is near-impossible

together sets of Chambers in different

does not accept this percentage rule,

to find two sets of exact compatibility to

cities. A good example is the merger

with each tenant expected to generate

create a bigger and better set. Rather,

of Park Court Chambers in Leeds and

an income above their peers elsewhere.

the sets to whom I spoke favoured the

New Court Chambers in Newcastle to

Mark Cornell continues, “We recently

carefully identified courting of teams of

create - as you can probably guess -

took on another silk as this was part of

barristers.

New Park Court Chambers.

purpose,

in

turn,

has

were

of

interest

to

us

Or, put

our wider strategy. We are very selective

Michael

Meeson says that the set is also entering

in our recruitment decisions, as we

Michael Bazeley says, “Mergers are

into a business relationship with Citadel

don’t want to dilute the brand. Our focus

rarely successful, unless the parties are

Chambers in Birmingham to create a

is very much on quality.”

prepared to put aside preconceived ideas

platform for a wider marketing of the

and actually complement each other. It

collective group throughout the country.

Michael Bazeley, Senior Clerk, Great

is unlikely that we would merge with

James Street, puts it this way: “The

another set, though

reduction in fees is a major issue facing

we would not be

all sets, particularly those specialising

closed to the idea

in criminal work. This has forced us

if, unexpectedly, a

not only to go further afield to acquire

suitable opportunity

work but also to be more selective

were

when

itself. However, we

recruiting

new

members

of

to

present

Chambers. Although our building could

would

accommodate a lot of barristers, in this

contemplate taking

day and age it would be foolish to flood

on

small

it with rent fodder.”

of

barristers

certainly

strengthen However,

added

to

that

business

proposition, Chambers are increasingly assessing

whether

prospective

tenants will ‘fit’ into the set.

|

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Brett

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will incorporate the type of case taken

agrees,

“We’ve

on, but also whether the person is

been in situations

culturally compatible and shares the

where

we

same objectives as the rest of the set.

have

considered

Those sets that are struck in the mindset

taking on 30-plus

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32

the barrister

Finding 4: The Legal Aid Bill will

regulatory, H&S and financial work.”

result in access to justice being denied

sets. However, it is a very positive move for the future. As to international work,

Michael Meeson says, “We looked at

we ourselves are looking at work in the

By the time this article is printed, the

making sure we balance the public sector

Caribbean as well as work in particular

Legal Aid Bill (LAPSO) will probably

work with privately funded work so that

areas in Europe.

become law. Many feel that this is a

there was not an undue dependence on

should not assume that all international

travesty. Michael Bazeley comments,

the public purse. We have also looked

work will be channelled into London

“Ken Clarke’s predicted reduction of

at much more focused marketing and

and the regional Bar has a lot to offer

approximately

potentially

recruitment to enable us to offer a wider

internationally.

damaging to people’s civil liberties. It

range of services more relevant to the

plank of any future development within

is everyone’s fundamental right to be

present market place. Examples of this

New Park Court Chambers.”

protected by the law. The legal aid and

are regulatory work, health and safety

British justice systems were once the

work, Court of Protection work, costs,

Michael Bazeley explains Great James

envy of the world, [but] I wonder for

environmental and civil fraud, as well as

Street is of a similar mindset, “Public

how long.”

broadening our whole civil, commercial

access has proved fruitful of late. All of

and chancery component.”

our eligible members are qualified to

£350m

is

Michael Meeson is also scathing. “With

The regional Bar

That will be a major

receive instructions and do so on a fairly

the reduction in legal aid and generally

The diversity of practice, coupled with

regular basis. The emerging markets

a cutting down of resources, many

the earlier merger, is offering a powerful

are something we are paying particular

people who cannot afford privately to

proposition, he adds. “We are confident

attention to. Alun Jones Q.C., our Head

instruct are potentially left in difficulty.

and able to embrace the future in

of Chambers, is repeatedly instructed by

Whilst there is a limit to what any one

whatever way it finally develops. Indeed,

foreign governments and private clients

set can achieve, I hope collectively the

we want to encourage applications on

alike.”

profession can contribute to the mutual

that basis from all areas of civil and

effort all over the country to achieve

commercial work, as well as crime.”

justice for vulnerable clients.”

Finding 6: Think collectively, not Diversifying does not only need to be

Finding 5: Diversify

individually

domestically focused. More and more Chambers are looking to international

Counter-intuitive though it may be for

criminal,

opportunities to help not just to offset

a profession rooted in individuality,

commercial and common law practices

potential loss of earnings in the UK but

the future lies in greater sharing of

is another area that is ripe for change.

also to sell the world-leading expertise

information and teamwork. In this,

The

of the English Bar to jurisdictions far

barristers need to follow the example

realising that there are benefits from

and wide.

of the more enlightened law firms.

crossover

particular,

Michael Meeson continues, “ABSs will

Partners who used to keep information

sets are realising the benefits that

provide a basis of some very exciting

about their clients to themselves - ‘top-

can be brought to their reputation by

business opportunities and the Bar

pocket information’ - and not share

combining the advocacy skills of the

should embrace them. The direct access

their clients with their own partners

Criminal Bar with the greater focus on

system is a very valuable one and the Bar

have long recognised that their firms

advisory work generally associated with

is seeing some very good results from

benefit if they put the greater good

the Commercial Bar. Mark Cornell notes,

that and New Park Court Chambers will

above their own self-interest. So it is

“Corporate businesses do very much

build on that in the future. A lot more

with barristers. The trend is towards

buy into the skill set that the Criminal

publicity needs to be put out about the

greater team mentality, which will reap

Bar provides. One Paper Buildings

value of the direct access system and we

dividends.

has already successfully increased its

need to market a lot more as individual

The

division

between

enterprising practices.

Chambers In

are

the barrister

So what does the future hold? In short,

Guy Hewetson is a founder and partner

plenty of challenges.

Add to the mix

of Hewetson Shah, a firm of leading

the ABSs that open up new types of law

legal search and recruitment specialists.

firms, direct access to barristers and the

Hewetson Shah offers expert full-service

increasing opportunities for international

assistance in search and recruitment for

work, and it is clear that Chambers are

the Bar.

33

going to have to embrace the brave new world. “The key to the future is exploring

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Page 1

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