Legal InCite – Autumn 2013: Issue 8
STEPPING UP TO THE BAR In times of economic hardship frontline legal services face a tripartite challenge: reduced private funding, government austerity measures and increased demand for their services. pg17
EXCLUSIVE INTERVIEW SPECIAL
• The former US Secretary for Education, The Right Honourable Margaret Spellings • The Right Honourable Lord Pannick QC • The Right Honourable Lord Justice Jackson • Her Majesty’s Solicitor General, Oliver Heald QC, MP
PRO BONO AND ACCESS TO JUSTICE SPECIAL: A review of BPP’s award winning Pro Bono projects including Streetlaw Prisons, the Human Rights Unit and the Innocence Project.
Peter Crisp Dean and Chief Executive BPP Law School
Shahban Aziz Full Time LPC, Leeds Senior Editor Legal InCite BPP Law School
“May you live in interesting times” may or may not be an old Chinese curse but we certainly do live in very interesting and challenging times for the legal profession.
Karl Sutaria was highly commended in the “Best Contribution by an Individual Student” category for his work as Student Director for Mediation Friends, which has seen the number of student volunteers triple since he took on the role two years ago.
With controversial, to say the very least, reforms to the legal aid system, and headline stories of job losses and redundancies in the legal sector it is a tough time to be a law student. Nonetheless our students continue to amaze me with their enthusiasm, energy and dedication to the law and access to justice for all.
BPP Law School Leeds was highly commended in the “Best Contribution by a Law School” category. Our Law School at Waterloo was highly commended in the “Best Contribution by a Team of Students” category for its Employment Law Telephone Advice Line.
Students at the Law School continue to make a huge contribution to pro bono and as this is the theme of this edition of the Legal InCite I thought I would share with you some of your colleagues’ achievements.
Further at this year’s Halsbury’s Legal Awards our new pro bono debt clinic project won the award for “Pro Bono Team of the Year”. The project team comprises BPP’s Pro Bono Centre, Hackney Community Law Centre, Debevoise & Plimpton LLP and Faegre Baker Daniels LLP.
BPP students received five nominations in this year’s LawWorks and Attorney General Pro Bono Students Awards. The ceremony took place at the House of Commons last month.
The above is I know just the tip of the iceberg and so many of you are involved in trying to make a difference in the communities in which we serve.
Alexandra (“Sasha”) Queffurus, a BPTC student, was awarded runner up in the “Best Contribution by an Individual Student” category. She has been Student Director of Streetlaw Prisons since 2012, having volunteered on the project as a GDL student, and now coordinates student volunteers to give presentations at HMP Pentonville, Wormwood Scrubs and Feltham Young Offenders’ Institution as well as at Southwark and Hackney Youth Offending Teams and ex-offender organisations.
Welcome to issue 8 of the Legal InCite magazine, a publication that is sent to thousands of schools, universities, solicitors firms, barristers' chambers and courtrooms across the country. Reader feedback for issue 7 has been extremely positive and I was particularly delighted by the kind words of Lord Pannick QC who commented that the magazine was “excellent” and that he “greatly enjoyed” reading it. Legal 500 2012 ranks Lord Pannick QC as 'Leading Silk' in eight areas and Chambers UK 2013 states that “you can have complete assurance in his intellect and his strategic approach”. I am delighted that this issue features an enlightening interview with Lord Pannick QC, where he gives invaluable advice to readers of Legal InCite. As always, we set out with a vision to display a wide range of student submissions, as well as feature an ‘exclusive interview special’ section in order to give us an invaluable insight into the professional lives of high profile personalities working in law. As a result of reader demand, we have combined the Legal InCite with our sister publication, the Business Brief and present this special combined version to our readers. In an age where commercial awareness and business knowledge is seen as imperative, this magazine seeks to fill the void and provide readers with the best articles from across both the legal and business worlds. This issue sees the former US Secretary for Education, The Right Honorable Margaret Spellings answer student submitted questions as well as share her philosophy of life with readers. Additionally we have an interview with The Right Honourable Lord Justice Jackson, who kindly answers a number of questions on the 'Jackson Reforms' and enlightens us with his words of wisdom.
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As I often say on Twitter, #VeryproudtobeDean. Peter Crisp Dean and Chief Executive BPP Law School
Our Pro Bono and Access to Justice section features a fantastic article by BPP student Rebecca Swan which was awarded runner up in in the Access to Justice Foundation Student Competition. Rebecca was presented with her certificate by Attorney General Dominic Grieve QC and Legal InCite readers will remember that our last issue featured an insightful interview with Dominic Grieve QC. Our Features section looks in detail at 'secret courts' and our Alumni section features an interview with former BPP student and nine time Paralympic gold medallist, Chris Holmes MBE. I have also put together a selection of ‘Editor’s Picks’ highlighting a diverse range of articles that are topical, together with those that stood out to me in terms of conveying the students’ own voice. Once again, I would like to thank Professor Amanda Blackmore, Professor Carl Lygo and Professor Peter Crisp for their continuous support. A special thank you goes to Chief Executive of Students, Laila Heinonen who has project managed the entire process and without whom this publication would not be the powerhouse that it is today. Whether you are a student, solicitor, barrister or judge, I hope you enjoy reading this edition of Legal InCite as much as I have enjoyed editing it. Please feel free to contact me directly on email@example.com if you have any questions, comments or suggestions. Shahban Aziz LPC Student, Senior Editor Legal InCite BPP Law School
Meet the Team Editorial Team: Senior editor
Shahban Aziz, Full Time MA (LPC with Business), Leeds
Pro Bono & Access to Justice editor
Yulia Spytska, Full Time GDL, Waterloo
Exclusive Interviews editor,
Shahban Aziz, Full Time MA (LPC with business) Leeds
Features & Blogs editor Ashraf Al-amin, Full Time LPC, Leeds
CONTENTS Front Cover Opening words – Dean and Chief Executive Opening words – Senior Editor Contents Exclusive Interview Special “Be open to opportunities that you haven’t thought of yourself”: Margaret Spellings
2 2 3 4-5
Ben Munnings, Full Time GDL, Leeds
“There is no more enjoyable and stimulating profession than to be a member of the Bar”: Lord Pannick QC
Shahid Ajmal, Part Time LPC, Leeds
“The reforms ensure that lawyers are properly paid and that most claimants get more damages”: Lord Justice Jackson
Exclusive Interview Special Laila Heinonen
Chief Executive of Students
Full Time MA (LPC with business), Leeds
Jackson Reforms Special Feature Alexander J. Lawson
Full Time BPTC, Leeds
Senior Editor’s Picks Zubair Firdoos
Full Time LPC, Leeds
A. J. Hannay
Full Time GDL, Leeds
Full Time LPC, Leeds
Features Jake Filson
Full Time GDL, Manchester
Part Time BPTC, Holborn
Full Time LPC, Leeds
Pro Bono & Acess to Justice Rebecca Swan
Full Time LPC, Leeds
Part Time BPTC, Holborn
Full Time BPTC, Holborn
Full Time GDL, Leeds
Full Time LPC, Holborn
Full Time LPC, Manchester
International Ben Munnings
Full Time GDL, Leeds
Part Time GDL, Distance Learning
Full Time LPC, Manchester
Editing & Proofing Nabeela Shahzad Hamza Khan Alison Matthew
Head of Editing and Proofing
Speacial Feature The Jackson Reforms: Key recommendations and changes 8-9 Senior Editor’s Picks The English Disease - A return to the Dark Ages? Car Park Justice: King Richard III’s Legal Reforms The Suicide Act 1961 is in need of reform Baby Penelope wins the Legal InCite competition Features An eye for an eye: working on death row Bringing Secret Courts into the Mainstream – The Justice & Security Act 2013 Prisons: A life sentence or a life of luxury? Pro Bono & Access Justice Stepping up to the Bar The CPS South East Local Scrutiny Involvement Panel The Identity Crisis of Categories: Volunteer or Employee in Employment Law? Preconceptions are easy to form; Streetlaw Prisons is a way to discard them Innocence projects undertake investigations into alleged wrongful convictions with a view to eventually having those convictions overturned Free to insult International Why the Al-Skeini Principle Still May Fail: Historical Decisions Can’t End on the Court Steps Case Analysis: An in depth investigation into Piratical Seizure and Total Loss An execution survivor: What next for Romell Broom? Alumni Chris Holmes, Leyla Jackson and Charlotte Nasey give their advice Blogs A selection of four student blogs Fresh Perspectives on Law: Forthcoming Events
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Exclusive Interview Special
“In this ever changing world full of possibilities, be open to opportunities that you haven’t thought of yourself”
Legal InCite interviews the former US Secretary for Education, The Right Honourable Margaret Spellings. Margaret Spellings served as the Secretary for Education in the US during President George Bush’s administration from 2005-2009. In the four years prior to that, Spellings served as the Domestic Policy Adviser to President George Bush, with a broad portfolio that included Labour, Housing, Justice, Transportation and Education. During her time in the White House, Spellings worked on legislative congressional policies such as the enactment of the ‘No Child Left Behind’ Policy and the Secretary of State’s Commission on the Future of Higher Education. Prior to that, Spellings worked with President George Bush as Governor and in several roles within education, including the Association of School Boards, so has experienced policy making from the local, state and federal levels. Since leaving her role as Secretary for Education, Spellings has founded Margaret Spellings & Company, an education consulting firm in Washington, D.C., and is a senior advisor to the Boston Consulting Group and U.S. Chamber of Commerce. Spellings’ passion for education is based on her experiences in her career so far, that have encouraged her to see education as a catalyst. Spellings says that she firmly believes that the best criminal justice programme and the best welfare reform is a
solid education system, and that if we get education right, and provide people with an opportunity, then a number of our issues and problems including housing and health can be solved. Spellings really believes that educated people build a better nation and better families who can build more hopeful futures for themselves. What would a typical week in the life of Margaret Spellings be like? Well, I am on the road a lot for starters, including the delightful opportunity to come to London for a few days, and I get to see a lot of parts of the world. I am going to Hong Kong next month to do some work as I am on some Boards. I do some work for a couple of important philanthropies including
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the Goldman Sachs Foundation and the Gates Foundation. I am very involved with the US Chamber of Commerce (a large business organisation that represents employers). In a lot of the work that I do, I talk about my worlds colliding, because I am hearing in Higher Education (HE) policy discussions that very often mirror issues that I also hear from the business community and the philanthropic investment world. When you have time to yourself, outside of work, what do you enjoy doing? I spend most of my free time with my two daughters, one is 20 years old and is a Junior at College (3rd year), and my eldest daughter is a 2nd year Law Student at the University of Michigan, and we have a lot
Exclusive Interview Special of fun together, we love to travel, in fact, we went to Paris for two weeks last Christmas. We also love to cook and entertain. When I am alone I love to read, but I also love to just be home as I am on the road so much. Life is certainly fun and interesting!
With the benefit of hindsight, is there anything you would have done differently? No one is honest, that doesn’t say; if you had to do it again you probably wouldn’t make the same mistakes, although, you
Behind’. They were huge supporters of it, because they knew that the children being left behind were poor, often children with African American or Hispanic backgrounds, children with limited English language skills and they could see that we have a culture
“There are many people who have inspired me and mentored me in my career. Obviously, I have learned a lot from, and am inspired by, my former boss, President George Bush.” Who has inspired you along your career journey? There are many people who have inspired me and mentored me in my career. Obviously, I have learned a lot from, and am inspired by, my former boss, President George Bush. He taught me about working with people and leadership and how to think big and most importantly that implementing things that aren’t always easy or without controversy are still worth doing. Also in education, the number of educationists that I see, who care so deeply about what they do, who are so mission driven, who are imparting knowledge and building human capital and are on the frontline of education are very inspiring people. We can all name a teacher that has been influential in our own lives. What were your highlights from your role as Secretary of State for Education and what do you consider to be your biggest achievements in your career so far. I would say firstly the ‘No Child Left Behind’ Policy which aimed at reforming primary and secondary education through accountability of achievement for disadvantaged children. Secondly, the Commission on the Future of Higher Education. The Commission came about because in the US we are large investors in student financial aid and for a very long time our strategy was to put money out and hope for the best and hope that the market would take care of itself, but we saw that this wasn’t working well enough, so I appointed a very high calibre commission to look at tertiary education in the US. The three themes of the commission were (1) Accountability, to ensure students would have something of value to the market place when they left (2) Affordability, to ensure students could pay for their education and (3) Accessibility, to ensure students were able and ready to do the work once they got to that stage.
probably would make different ones! I think one of the things that I would focus on is that until we get people on the demand side (the civil rights and business community) seeking change and demanding better ways of doing business we aren’t going to see change. Policy makers often talk to each other in the hope that everyone sees the statistics and understands what we are thinking, but I think we often fail to make the case and engage the public in the rationale behind why we are doing these things, and so I think engaging those external groups and informing them of their stake and helping them be involved is something that we have to work at. Do you think that we are doing enough to diversify the workforce, particularly during such a competitive era? No, I think people are waking up to the fact that this is an important issue, we have talked about diversity for a long time, and we see it as the ‘right’ thing to do, but I think more and more people are understanding that building a diverse and capable workforce is not only the right thing to do but it is really smart business, and a great way to gaining competitive advantage. I don’t think everyone has that point of view, but I think it is a work in progress and I think the people who understand our world, and the needs of the workforce going forward, understand, that if we do not do a better job by our diverse populations, we are wasting so much human capital and we are setting ourselves and our nation up for failure. Whose responsibility do you think it is to diversify the workforce? Everyone’s; I think that it is the responsibility of the government, the business community and the advocacy community on behalf of those populations. I think this is not as mature as it needs to be, but one of my great accomplishments has been to engage the Civil Rights community in ‘No Child Left
where too often we use the ‘blame the parents phenomenon’ to write off a whole generation. What would you say to a student from a non-traditional background, who doesn’t fit the criteria of a traditional law student? Lawyers often think people want to talk about the law. The truth is people want to talk about a problem and find out how to solve it. Often people who come from a diverse background, who understand manufacturing or different populations of customers and consumers, people who bring that broader background in addition to the law, are much better suited to become problem solvers and part of a management team. I think there are two types of lawyers in this world, those who are specialists in the law, and stay on that track, and go to books and references and can cite code (i.e statute) and lawyers who become very senior managers and policy makers and run companies and build businesses. Often the most successful CEOs have a legal background, as it teaches you how to think, it teaches you how to communicate and how to write and that is what CEOs do. What is your general philosophy on life? When I talk to students, or people who pursue the law I find that they often have a very clear long term plan. I would just say, especially in this ever changing world full of possibilities, to be open to opportunities that you haven’t thought of yourself, even when they seem sometimes beneath you, sometimes irrelevant, sometimes off point. I have had a lot of jobs in my young life, and I have never had an experience that I didn’t value later. Laila Heinonen, Chief Executive of Students BPP University College
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Exclusive Interview Special
“There is no more enjoyable and stimulating profession than to be a member of the Bar.” Legal InCite interviews The Right Honourable Lord Pannick QC.
Why did you go into law? Were there any particular reasons that influenced your decision and did you at any time consider other professions? I wanted to be a barrister from an early age. I liked arguing, sometimes just for the sake of it. I remember going to watch a case at the Old Bailey when I was about 16. It was the trial of Peter Hain, wrongly accused of being a bank robber. I was very impressed by Lewis Hawser QC for the defence. And I thought (rightly) that this was the profession for me: arguing, in a structured format, about important and interesting issues, where the stakes for the client were high indeed.
worked: Lord Lester QC - who led me in my first case (our client, a drug dealer from Singapore, lost in the Judicial Committee of the Privy Council, and was hanged; not a good start to my career) - and Michael Beloff QC (my pupil-master). Both taught me the ethics of advocacy (in particular, arguing to the best of your ability the legal case for clients, whatever their views and however objectionable their conduct), the importance of preparation, and that there was no more enjoyable and stimulating profession than to be a member of the Bar. Which is your most memorable case and why?
Who has inspired you over your illustrious career?
I have been involved in many memorable cases: Spycatcher in 1987-1990, the victory for Camelot over the National Lottery Commission in 2000, AF in the House of Lords in 2009 which established that even people accused of terrorism are entitled to procedural fairness, winning the last case in the Appellate Committee of the House of Lords in 2009 for Debbie Purdy, requiring the DPP to issue Guidelines about prosecutions for aiding and abetting suicide, and establishing in the Supreme Court in 2010 that MPs cannot claim Parliamentary privilege to prevent prosecutions for fraudulent expenses claims. I enjoyed acting for Diana, Princess of Wales (in an Industrial Tribunal) and the Queen (obtaining an injunction against The Daily Mirror). But the case that has given me most satisfaction was establishing in the European Court of Human Rights in 1999 for Duncan Lustig-Prean and others that it was a breach of human rights for the military to dismiss gay servicemen and women by reason of their sexuality. The prejudice was so obvious, and the refusal of the English courts to intervene so disappointing, that the Strasbourg judgment was particularly welcome. None of the military's warnings of damaging consequences have been accurate. It now seems astonishing that such arbitrary and intrusive discrimination persisted for so long.
I have been inspired by two members of Blackstone Chambers with whom (and against whom) I have often
In your opinion what are the key skills that a barrister needs?
What is your weekly routine? Do you enjoy any hobbies? I work intensely during the day from about 9 am (though often breaking for lunch with friends) and then either get home early (by 7 pm) to see my young children before bedtime or go out to dinner or the theatre with my wife, Nathalie. I also spend a few hours working at weekends. I cannot work late at night. I also spend at least a day of my working week as a crossbench peer in the House of Lords, debating and forming alliances on legal issues. I write a fortnightly legal column for The Times. And I spend an increasing amount of my time arguing cases abroad - in the past 6 months I have appeared in the courts in Hong Kong, the British Virgin Islands, Trinidad and Bermuda. I try to find time to cheer for Arsenal FC (I am a season ticket-holder) and watch musicals. Do you or did you ever feel nervous when going into court? I always feel nervous. An advocate can never be sure what will happen in court. That is part of the attraction of this job. There are very few successful advocates who are nerveless. More often, a barrister who is unaffected by nerves is over-confident and his or her performance suffers.
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There are three key skills. The first is the ability to identify and focus on what parts of the factual and legal material are central to the case you are arguing. Judges are busy people, and effective advocacy requires an ability to concentrate on what matters. The second skill is objectivity. There is no point telling clients what they want to hear. They are paying for your advice (however unpalatable), not for a cheer-leader, even if sometimes they may prefer the latter to the former. The third skill is integrity. The best way to lose the attention of the court is to try to conceal a damaging authority, or misrepresent the facts. You have to recognise the limitations in your own case, as well as expose the weaknesses in your opponent's case. In your own career if you could go back, would you do anything different? I have enjoyed my career (so far) immensely. I would change nothing major. Of course, we all make mistakes. I can think of many cases where I wish I had given different advice, or presented a different argument. I am comforted by the statement of Robert Jackson (Justice of the US Supreme Court and chief prosecutor at the Nuremberg War Crimes Tribunal) that as Solicitor General in the 1930s he made three arguments in every case: first, the one he planned ("logical, coherent, complete"), second the one he actually presented ("incoherent, disjointed, disappointing"), and third "the utterly devastating argument that I thought of after going to bed that night". Do you have any pearls of wisdom to impart upon BPP law students? When arguing a case, don't follow the example of the advocate asked in 2008 by the United States Court of Appeals for the Fifth Circuit in New Orleans why in his oral argument he had not addressed a relevant judgment of the Supreme Court. He replied, "I try not to read that many cases, your Honor".
Exclusive Interview Special needs. First, legal knowledge. Secondly, an ability to analyse complex and sometimes diffuse material. Thirdly, clarity of expression, the use of clear English and fourthly an ability to structure all judgments and rulings.
Do you consider that vulnerable victims of accidents now have reduced access to justice or were these reforms necessary and proportionate? Are the reforms good for the profession?
Which is your most memorable case and why?
I do not consider that vulnerable victims of accidents have been reduced the access to justice. I do consider that the reforms were necessary and proportionate and I do consider that the reforms were good for the profession.
The most memorable case that I did at the Bar was when I was representing 1000 haemophiliacs and family members who had been infected with the HIV virus. We were bringing claims against the Department of Health and numerous local Health Authorities. It was a very interesting action which ran on for a few years and ultimately settled after some interlocutory battles including a three day battle in the Court of Appeal about discovery. Should we have ‘judges for life’ – as opposed to having a mandatory retirement age?
“The reforms ensure that lawyers are properly paid and that most claimants get more damages - that is not something that the critics see fit to mention” Legal InCite interviews the The Right Honourable Lord Justice Jackson. Why did you go into law? Was there any particular reason that influenced your decision and did you at any time consider other professions? I went into law because I believed it would be an interesting and fulfilling career. The alternative profession that I considered was academia. I studied classics whilst I was at Cambridge and I was strongly tempted to remain in the classical field and possibly pursue an academic career, but in the end I decided that a practical career in law would be more interesting, more fulfilling and perhaps a little more useful. What is your weekly routine? Do you enjoy any hobbies? I hear a whole manner of appeals. Some weeks I am hearing criminal appeals, other weeks I am hearing civil appeals or family appeals, so I do a wide variety of work. Once you become a judge in the Court of Appeal, the routine is pretty much the same every week. As for hobbies, I enjoy gardening, I enjoy walking and I enjoy the theatre. Until recently, I played golf but I’ve suffered an injury and I don’t know whether I can go back to golf or not. Do you or did you ever feel nervous when going into court? I don’t feel nervous when going into court and to the best of my recollection, I didn’t feel nervous when going into court as a barrister, but possibly in the past I did. In your opinion what are the key skills that a judge needs? I would say that there are four key skills that a judge
No I don’t think we should have judges for life although it must be said that some judges in the United States have served with distinction into their 90’s and beyond. Nevertheless I do not think we should have judges for life. On the other hand I think that the retirement age of 70 is too young. In the past the retirement age was 72 or 75, and there are some very distinguished judges now, to whom the old provisions apply, who can go on till the age of 75 and they are producing excellent judgements. In my view the retirement age of 70 is too low and it should revert to 72 or 75. As arbitration is proliferating into other sectors, where do you see the method's legitimacy 'ceiling' regarding the supremacy of the common law? I don’t see any conflict at all between arbitration and litigation. Arbitration is one of the methods used for dispute resolution in the civil field. The parties that have a dispute are entirely free to agree that it should be resolved by a private arbitrator rather than the courts. If a party wishes to arbitrate, the function of the court is to support the arbitration mechanism. So, if the arbitrator wishes to refer a point of law to the court, as he can under the legislation, then the court will resolve the point of law. If one of the fairly rare circumstances arises in which there is a legal challenge to the arbitrator’s decision, then the courts will deal with that. For three years I was judge in charge of the Technology and Construction Court. My experience was that in the construction field, sometimes disputes were litigated because that was what the parties wanted. If a dispute went to arbitration, I did my best as a judge to support the process. If for example the parties or the arbitrator wanted a ruling on a question of law, I would determine that question of law promptly, so as to fit into that arbitration timetable. I would enquire what the arbitration timetable was and try to fit in with that. There are many ways of resolving civil disputes, including litigation, arbitration and mediation. Another method used in the construction field is adjudication. Again that doesn’t cut across the jurisdiction of the courts. I have sought as a judge to support the adjudication system. When an issue of law needed to be resolved before or after an adjudication, I would do it, again to fit in with the adjudication timetable. I believe that the different procedures for the resolution of civil disputes should operate together harmoniously. Would you agree that the reforms have gone further and cut deeper than you anticipated and what are your views on that? No. For the most part the reforms have been implemented as I recommended. My views on that are set out in a report which runs to several hundred pages. If you do not wish to read several hundred pages, you will find a very short summary of the reforms which are being implemented pursuant to my report in the preface to the supplement to the 2013 White Book.
Some of the reforms involve reversing what seemed to me to be absurd features of the law under the Access to Justice Act 1999 which came into force in 2000. An extraordinary costs regime was instituted, whereby in effect all the cost risks were placed on one party. Imagine a cohort of 100 cases where the claimant had a conditional fee agreement and afterthe-event insurance. The claimant wins, he gets all his costs back and he also recovers from the other side a success fee, which may be a 100% of his costs, that goes to the lawyer. If the claimant loses, he doesn’t pay any costs to the other side, those costs are paid by the after the event insurer. If the claimant wins then the after-event-insurance premium, which can sometimes be a huge sum, is paid by the other side. Imagine 100 cases like that. In some cases the claimant will win, in some cases the claimant will lose. In those cases that the claimant wins, the other side pay, not only the costs of the particular case, but also a sum to cover the costs of all the cases which the claimant loses. So if the old rules operated to perfection, in our cohort of 100 cases, the defendants would end up paying all of the costs of every case, regardless of who won. But the system didn’t operate to perfection, there were no market forces to control the level of after-the-event insurance premiums and there were no market forces to control the success fee. The result was that in our cohort of 100 cases the defendants ended up paying, not only all of the costs of every case irrespective of who won, but also quite a lot more besides. That was an absurdly expensive way to conduct litigation. I conducted with professional assistance a great deal of economic analysis, the findings of which you can find in the appendices to the preliminary report and the final report. I have no doubt whatsoever that the reforms to success fees and after-the-event insurance were necessary to promote access to justice at proportionate costs. Do you agree that the reforms are pro-insurance and anti-claimant? No I do not agree. Before I prepared my report, I commissioned an analysis of some 64,000 personal injury cases. A Professor of Economics at Nottingham University ran the data on these cases through his computer assuming that my reforms had come into force to see how it would impact on the claimants. Under the reform, damages go up by 10% but claimants pay their own success fee. The result of this analysis of 64,000 cases was that in 61% of cases the claimants were better off and in 39% of cases the claimants were worse off. My reforms mean that the lawyers receive proper payment for their work, rather than receive the opportunity to gain excess remuneration through doing mainly winning cases and getting success fees. The reforms ensure that lawyers are properly paid and that most claimants get more damages - that is not something that the critics see fit to mention. Laila Heinonen, Chief Executive of Students BPP University College Shahban Aziz, Senior Editor Full Time MA (LPC with Business),Leeds
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The Jackson Reforms:
Key recommendations and changes. To accompany the interview with Lord Justice Jackson, the Legal InCite has created this special feature highlighting the key reforms. Lord Justice Jackson was asked to address what were seen as the disproportionate costs in civil litigation, to streamline the process and make it cheaper for all concerned to successfully resolve a dispute. He carried out a year long review and in January 2010 published his recommendations for reform which he describes in the foreword to his report as “a coherent package of interlocking reforms, designed to control costs and promote access to justice.” The changes have been introduced in part through the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012. This legislation received royal assent in May 2012 and was implemented on the 1st of April 2013. The reforms do, as discussed below, represent the largest change in civil litigation since the introduction of the civil procedure rules in 1999, but perhaps in part due to the uncertainty as to what and how the reforms would be implemented over the last few years have generated some concern. It is the aim of this feature to
lay out the key changes and demonstrate that they are nothing to be feared. The purpose of the reforms is to make costs more proportionate and to discourage litigation which is unnecessary or lacking in merits – a process which it might be argued is already standard practice for most legal professionals.
Summary of the Changes: – No win no fee Conditional Fee Agreements (CFAs) are being kept, but success fees and insurance
premiums are no longer payable by the losing side. – For the first time, no win no fee Damage Based Agreements (DBAs sometimes called “contingency fees”) are available in England and Wales. – Referral fees are banned in Personal Injury cases. – To protect a claimant's damages in personal injury cases, the success fee on a CFA or the payment on a DBA is capped at 25% of the damages recovered, excluding damages for future care and loss. – Damages for pain and suffering and loss of amenity (PSLA) are to be increased by 10%. – A new concept of Qualified One-way Cost Shifting (QOCS) is introduced in PI cases which acts to cap the amount that the claimant may have to pay to defendants in the event that they lose. QOCS are linked to the manner in which the claimant conducts his or her case, those whose claims are conducted in accordance with the rules are protected from having to pay the defendants costs. – Promotion of earlier settlement of claims via a new sanction on defendants. – The Small Claims Track limit is to be raised to £10,000 for all non-injury claims. – The overriding objective is being strengthened as regards dealing with cases justly and proportionately. – Proportionate costs are to be redefined, with the costs to be more closely linked to the actual value of the claim, in reviewing budgeted amounts, the court is to have regard to whether the amounts are within a reasonable and proportionate range bearing in mind the amount at stake. – Courts are to assume tighter control of the litigation process and costs through budgeting. – Heavy penalties for any party in default – As always Alternative Dispute Resolution (ADR) is emphasised even further. – Claims worth £100,000 or less will only be heard in the County Court, not the High Court. – In the County Court, small claims limits are to be raised from £5,000 to £10,000. – Parties seeking permission for expert evidence should provide the court with cost estimates when doing so. – Despite recommendations from Jackson LJ to this effect, the proposals for fixed costs in fast track cases are not being implemented.
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Special feature No Win No Fee In both a CFA and a DBA the payment of solicitors and counsel is conditional upon the case being won. If the case is lost, there is no pay for the lawyer. If the case is won, then the lawyer receives either: on a CFA, the normal fee for the case plus an uplift of success fee; or on a DBA a percentage of the damages recovered.
Success Fees & DBA Payments: After April 1st 2013, the success fee on a CFA is no longer payable by the losing side, if a success fee is charged, it is to be paid by the winning party, typically from damages recovered. A success fee can still be up to 100% in non-personal injuries cases, but in PI on both a CFA and a DBA the total payment will be capped at 25% of the damages recovered excluding damages for future care and loss. This is to ensure that the damages recovered for the Claimant are protected, especially those required for their future which are protected entirely. The cap is not mandatory, you do not have to enter into a CFA or a DBA, but if you do, it cannot exceed 25% of damages. The cap does not apply to appeal proceedings where the fee is negotiated between a lay client and his or her representation. In Clinical negligence cases only After The Event (ATE) insurance covers expert reports, the premiums for ATE are payable by the defendant. Consequently the claimant does not have to pay upfront for provision of experts reports where they relate to either causation or liability.
DBAs The reforms introduce a new concept of the DBAs, which while similar to the CFA has certain very important differences. From April 1st DBAs can now be used across the board in Civil Litigation, prior to this they were only to be used in tribunals (such as the Employment Tribunal). The rules on DBAs in tribunals and civil litigation are slightly different as tribunal matters may be conducted by those other than lawyers who do not have the same professional rules of conduct. On a DBA the maximum amount that can be taken from the claimant's damages is: – 25% (not including damages for future care and loss) in PI – 35% in employment tribunal cases – 50% in all other cases. Where a claimant is successful on a DBA, they recover in the usual way their representations hourly rate and any disbursements from the defendants. However the claimant is responsible for paying out of their own damages any difference between solicitors costs paid by the DBA fee and the same on disbursements. When acting under a DBA, lawyers are required to use the indemnity principle in that their fee is restricted to what is due under the DBA fee. If the DBA fee is less than what the solicitors' cost would be without a DBA, then the defendants only have to pay the DBA fee.
Legal Insurance – Before the Event (BTE) and After the Event (ATE): There are no specific changes being made to BTE, but the Government is keen to encourage it as an alternative to ATE. On ATE policies taken out prior to 1st April 2013, the
insurance premium is paid by the losing defendant. However for policies taken out after this date, the premiums (except for those for experts reports in clinical negligence cases) are not recoverable. While ATE remains available, Qualified One-way Costs Shifting (QOCS) is being pushed as an alternative. Trade unions and other membership organisations can no longer recover their own self insurance costs.
QOCS: QOCS serve to ensure that a losing claimant will not have to pay any costs to the defendant, and a successful claimant who has a costs order made against him or her (for example; failing to beat a part 36 offer) will only have to pay costs which can be offset against damages received.
Two Directions Questionnaires have been substituted in place of the Allocation Questionnaire. The first is to be used for cases provisionally allocated to the small claims track and the second for those which could be placed in either the fast or multi-track. After a defence is filed with the court, the court will make a provisional decision on the appropriate track based on the value of the claim before sending out the relevant Directions Questionnaire. If a case may be allocated to the fast or multi-track, then the parties are required to file proposed or agreed directions. The parties have at least 28 days from deemed date of service of the notice of track allocation to file the documents.
Referral Fees: From April 1st 2013, these were banned in their entirety.
Crucially though, QOCS protection can be totally lost if the claim is struck out or found to be fundamentally dishonest. It can also be partially lost if an otherwise successful claim has an unsuccessful non- PI element (such as housing disrepair) and an order for costs is made against the claimant for this unsuccessful element, then the claimant is liable for all of the defendants costs of that element to the extent that it is just and fair. Protection can also be partially lost if the claim is made for the financial benefit of someone other than the claimant, then an order for costs of the claim or that element can be made and enforced against that person/organisation.
A referral fee being where money is paid by lawyers to a third party in return for passing on business to them, generally this is a Claims Management Company (CMC) who actively advertise and encourage claimants to come forward. It is this encouragement of an American style 'compensation culture' which the ban seeks to prevent.
Increase in General Damages:
RTA Personal Injury Scheme & Whiplash:
Following the Court of Appeal Guidance in Simmons v Castle (26/7/12) all general damages are to be increased by 10% in claims issued after April 1st 2013. This change is to be managed by the judiciary.
Increased Sanctions under Part 36: In an attempt to encourage early settlement, the sanctions under Part 36 are being reformed. There is an additional sanction on a defendant who does not accept a claimants early offer to settle where the claimant is awarded an amount that is at least as good as the amount the claimant offered to settle the claim. The sanction is calculated as 10% of damages where damages are in issue or 10% of costs where these are not in issue. Where the two are mixed (damages and non-damages claims) the sanction is based on 10% of the damages part of the claim. The amount is subject to an overall cap on a sliding scale for claims over £500,000 so that the maximum size of the sanction is £75,000.
Changes to Case Management Powers - Part 3: The court may now monitor the compliance of the parties with directions. Rules on applications for relief from sanctions are to be widened to give the court the power to ensure that litigation is conducted at a proportionate cost. In multi-track cases, costs budgets are to be introduced which require that the parties file at an early stage of proceedings a budget of costs (as opposed to an estimate) and where possible to agree budgets between them. The court can make a “costs management order” to control the budgets of the parties in respect of recoverable costs.
The enforcement of the ban is to be managed by regulators (i.e. the SRA, Bar Standards Board, the Claims Management Regulator and the Financial Conduct Authority) and they needed to have appropriate arrangements in place by the 1st of April to do this.
The exact details are still being consulted upon by the Civil Procedure Rules committee but it appears that this is to be extended to include claims up to £25,000. The scheme will also include employer's liability and public liability claims. Fixed recoverable costs will be reduced. The Government has been consulting on means of addressing the costs and numbers of whiplash claims being brought. The consultation which has now closed, considered whether to introduce independent medical panels and whether the small claims threshold should be amended on PI claims to either £5,000 on all RTA injury claims, or just for RTA whiplash claims.
Points of practice: Whether acting for claimant or defendant, the Part 36 offer has become an even more vital tool. It being very wise for defendant to make a good and realistic part 36 offer early to protect themselves against QOCS, especially as QOCS make the possibility of an empty or pyrrhic victory distinctly possible as the costs of winning could far exceed the cost of an early settlement. For the claimant in particular observing all of the rules and directions of the court is doubly vital now as under QOCS the amount a claimant may have to pay is linked to their conduct, requiring an objective and careful assessment of the merits of the claim at the very earliest of stages. Alexander J. Lawson, Full Time BPTC, Leeds
Part 26 Except in PI and housing repair claims, the small claims track limit is to increase from £5,000 to £10,000. This affects all claims issued after 1st April 2013.
Legal InCite – BPP Law School’s Student Publication 09
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THE ENGLISH DISEASE
A RETURN TO THE DARK AGES? It is now nationally accepted that it is very unlikely that football will be free of hooliganism. That being said football hooliganism has also been glamorised by documentaries and films and excessive media reports often exaggerate the extent of the disorder. The Home Office figures gathered by the Office for National Statistics suggest that there has been a downwards trend in football related incidents, and encouragingly this is continuing. Not only has there been a dramatic decrease in these incidents since the 1960’s, but the incidents seem to be occurring less frequently year on year. Bill Shankly’s comments may well have been tongue in cheek, but unfortunately, for some, football really is a matter of life and death. Only since the 1960s has hooliganism become ineradicably associated with football fans, although it was common before it gained widespread public attention. However the scale of trouble then compared to now does not bear any comparison. You only need to look at what happened at Wembley and on the streets of Newcastle on the weekend of the 13th and 14th April 2003 to realise that the problem of hooliganism still persists today, albeit in new forms. There is no legal definition of a football hooligan. A simplistic definition of a football hooligan would be seen by most to involve violence and/or disorder involving football fans. Some of you may have seen films such as Football Factory or Green Street. For those of you who have not, you may have come across football hooliganism in the news or even heard first-hand accounts. What is certain is that three decades, after football hooliganism first rose to prominence, this ‘English disease’ continues to create official and public concern. This poses the question does the recent violence represent a return to the dark ages of football hooliganism? Gerry Sutcliffe, a former Sports Minister, was famously quoted referring to a disorder as ‘being a disgrace to football.’ He was criticised for ignoring the broader social issues underpinning such disturbances such as unemployment, poor education and a tendency for people to be drawn into conflict.
In England and Wales in 2011/2012 there were only 2,750 banning orders, down from 3,173 the year before. More promisingly arrests at international and domestic games were down by 24% from the 2010/2011 season. This meant that police were only averaging 0.72 arrests per football match. This in turn poses another question: what legal measures have been taken to combat football hooliganism? During the height of football hooliganism in the 1960s, successive governments attempted to gain a stranglehold over the ‘hooligans’ - many served only to worsen the problem. The approach taken by the governments was seen to be counterproductive in the sense that it created a confrontational vibe and attitude amongst the fans and the police. Governmental intervention only succeeded in driving the violence away from the football grounds and onto the streets. However a number of different approaches have been taken. In an attempt to treat the symptoms of football hooliganism, a Government Inquiry in 1985, following the deaths of 54 people in a fire at Valley Parade, resulted in the Popplewell Report. The report’s recommendations led to a number of safety measures. Although enabling legislation was suggested in the form of the Football Spectators Act 1989, it was never introduced. The death of 95 Liverpool fans in the Hillsborough disaster in 1989 proved to be a catalyst for another Government Inquiry; this resulted in the Taylor Report. The recommendations of both reports dealt with safety at football grounds and also specific football-related
legal measures leading to the passing of the Football Spectators Act 1989 and the Football Offences Act 1991. These Acts were significantly strengthened by the Football (Offences and Disorder) Act 1999 and the Football Disorder Act 2000. It must be noted that the passing of this legislation did not deal with the causes of football hooliganism. The introduction of specific football hooligan offences has also helped combat football hooliganism, to a certain extent. A court can impose a football banning order on any person convicted of a relevant football related offence pursuant to S.14A of the Football Spectators Act 1989 (as amended by the Football (Disorder) Act 2000). The court must be satisfied that there are reasonable grounds for making such an order in regards to the prevention of violence or disorder in relation to regulated football matches. A full list of the relevant offences can be found in schedule 1 of the Football Spectators Act 1989. If a person is guilty of a S.14A offence, the banning order must be for a minimum of 3 years. The banning order can last for up to 10 years, in circumstances where a custodial sentence has been imposed. To attempt to eradicate football hooliganism would require a number of organisations and initiatives to fall into place simultaneously. Even then it would be almost impossible to totally kick hooliganism out. Although much has been done to address the problem, the government, the football authorities and the police need to work more closely to clamp down on hooliganism further. The legal framework currently in place is sometimes seen as being too draconian and there are even suggestions from some quarters that the legislation in place infringes Human Rights. What is certain is that further legal framework needs to be introduced to address issues in which law and order may be maintained and civilised behaviour encouraged. Not only will this benefit the game but also address issues in the wider community. Ultimately, nothing is a matter of life and death, except for life and death itself. Zubair Firdoos, Full Time LPC, Leeds
10 Legal InCite – BPP Law School’s Student Publication
Images from Shutter Stock, Photographer Clive Chilvers: http://www.shutterstock.com/gallery-456217p1.html?cr=00&pl=edit-00">Clive Chilvers
“Some people believe football is a matter of life and death, I am very disappointed with that attitude. I can assure you it is much, much more important than that.” Bill Shankly.
Senior Editor’s Picks
CAR PARK JUSTICE: THE LEGAL REFORMS OF KING RICHARD III In December last year, a skeleton, with vicious battle wounds and a severely curved spine was uncovered during an excavation of the site of Greyfriars Church in Leicester. This skeleton has since been identified as the last Plantagenet King of England: Richard III. Richard is one the most infamous men ever to have sat on the English throne, and the only one with his own fan club! Was he the hunchbacked mass - murdering villain of Shakespeare, or, as his supporters, the Ricardians, would have us believe, one of England’s greatest kings: a champion of the working man, literature, and a fair and just lord? Following the authoritative academic works of Charles Ross, Michael Hicks and Rosemary Horrox, the ‘real Richard’ probably falls somewhere in the middle: an aggressive and ruthless ruler, but certainly a man of his times. One of the primary defences of Richard advocated by his supporters, the Richard III Society, are the reforms Richard made in his only parliament of the legal system. The society, in their January press release, have stated that Richard: had “a commitment to fair play in the judicial system: his actions and proclamations stressing that his laws were to be administered impartially without delay or favour”. They claim he developed an early form of Legal Aid; simplified conveyancing to counteract fraud; and most striking established the system of bail. These bold claims seem to have been widely accepted by the world’s media, and some law firms’ own publications! If these claims are true, then perhaps Richard’s image and reputation really does need re-assessing. Firstly, did Richard invent the system of bail? Simple answer: No. In the 1880s Sir James Stephen described the system of bail as being “as old as the law of England itself”, and in the late twelfth century Ranulf de Glanville in his Treatise on the Laws and Customs of the Kingdom of England recognised the practice of sheriffs releasing prisoners awaiting trial on their own recognisance. Due to the system of itinerant justice defendants could be waiting months, and even years, to be finally tried; imprisoning them for this length of time was expensive, and escapes were a real risk. Releasing defendants upon receipts of promises to return for trial was beneficial to all parties, and widely practised. The society’s claim therefore, that “bail was introduced” under Richard is simply a fallacy - and a widely repeated one. What Richard did do, however, was to formally extend Edward III’s statute, which gave Justices of the Peace the right to grant bail to those already indicted, to those who had not been formally indicted.Progress yes, but hardly the ground breaking achievement Ricardians would have you believe. The next Ricardian demonstration of the king’s fervent belief in and advocacy of justice for all is his reforms with regards to property law and conveyances, in order to prevent fraud. Without question this reform will have strengthened peoples’ rights in land disputes, and greatly increased the sense of justice.
However, the idea that it demonstrates Richard as a champion of justice and people’s rights simply does not stack up. Richard’s actions with regards to his own legal affairs certainly bring this claim into question. In the late 1470s Ralph Neville named Richard as one of the trustees of his estates in county Durham along with numerous of Richard’s close associates - including Sir Richard Ratcliffe. However, when Neville died in late 1484, instead of passing the estates onto Neville’s heir - another Ralph Neville- Richard decided he quite liked Raby (the estates of Ralph Neville), and kept it for himself. Further to this, not only did he keep Raby from the younger Ralph Neville, he had actually promised to him reward for service. In June 1483, during Richard’s usurpation of Edward V, he wrote to Lord Neville declaring if he were to support Richard it would be “the making of you and yours”. Instead, Richard breached trust and kept Raby for himself - hardly the epitome of justice. Another example of Richard’s disregard for property law comes earlier in his career in 1474. Sir Thomas Stanley, who would later side with Henry Tudor at Bosworth, had arranged the marriage of his younger son and a nephew to the two heiresses of Sir John Harrington - Lord of Hornby. As such the legal ownership of Hornby passed from the heiresses to their husbands. John’s younger brothers, however, were not impressed by this and fought to retain the castle and prevent the heiresses from inheriting. Sir James Harrington was a close retainer of Richard’s, and Richard provided troops to back his claim to disinherit the young girls forcing King Edward IV to intervene on Stanley’s behalf imprisoning Harrington. In addition to this, during 1474, Richard also came to blows with the Earl of Northumberland by illegally retaining his men; and almost caused a civil war squabbling over land with his elder brother the Duke of Clarence, in which he also kidnapped his mother in law- who was the rightful owner of both Richard and Clarence’s land. Richard’s most damning act came on 13 June 1483 - just before his usurpation. During a council meeting Richard stationed some of his men outside the door and half way through proceedings they burst in and arrested Lord Hastings, the Chamberlain and Head of the King’s Household, along with Edward IV’s other leading Ministers - including Stanley, who was wounded by Sir James Harrington during the incident, and dragged Hastings to the block on Tower Hill to remove his head. The Great Chronicle of London tells us Hastings was killed immediately without any law, due process, or even time for confession. This brutal murder was completely unprecedented, and alongside his previous behaviour with regards to land demonstrated Richard’s complete disregard for the law - when it suited him.
of the society’s claims. Legal Aid is of course currently highly topical, so did Richard create an early system of legal aid? The society claim he did, with reference to his involvement in the development of the Court of Requests. Undoubtedly this did lower the cost of justice, and make the courts more accessible to the poor; however, given his track record it is highly unlikely that this was Richard’s aim. To fully understand this one must place Richard’s reforms into their fuller context within his reign. Richard was an unusual king, and a precursor for Henry VII’s ‘New Monarchy’ style of kingship. A ‘New Monarch’ is a term used by historians to described kings in the later fifteenth and early sixteenth centuries who centralised government institutions and strengthened the power of the crown. Richard retained numerous government offices, notably the wardenship of the East March and the Stewardship of the Duchy of Lancaster, with the Crown. He also served to create the Council in the North, which strengthened direct royal power in the North of England, as opposed to previous kings’ reliance upon regional magnates - such as Richard himself under Edward IV. Alongside making justice fairer and more accessible, Richard’s reforms also served to take justice out of the hands of local magnates and closer under Crown control. Therefore, instead of being the champion of the common man- as the Society has sought to portray Richard- he was using the law for his own gains to strengthen the position of his, already weak, Crown. Richard III had front row seats to the downfall of the Plantagenet House of Lancaster, in 1471, and his own, House of York, 1483 - 5, and as such was an easy target for those seeking to establish and solidify the rule of the new House of Tudor. It is because of this that a reactionary and revisionist group with an almost sect - like devotion to Richard has emerged, and it is within this on - going battle for Richard’s reputation that focus upon his legal reforms has developed. All history is subjective, and as such, the Richard III Society’s focus upon Richard’s legal reforms as a potential saving grace for “their maligned king” is more subjective than most, ignoring key evidence with little attempt to move beyond face value if it is not beneficial to their cause. One must therefore take a metaphorical step back, and proceed to place Richard’s reforms in the much wider context of English legal history; Richard was a minor, almost transitional, king who ruled for only 26 months, and as such his reforms, although in some cases progress, were in themselves very minor in shaping our legal system today. A. J. Hannay, Full Time GDL, Leeds
Why then would a man who had demonstrated such disregard for the law then implement such liberal and modern changes to the legal system in his only Parliament? The answer lies with further examination
Legal InCite – BPP Law School’s Student Publication 11
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The Suicide Act 1961 is in need of reform.
According to Section 2 of the 1961 Suicide Act, assisted suicide is outlawed in the United Kingdom. It is illegal to “aid, abet, counsel or procure the suicide of another” and a person committing the offence can be imprisoned for up to 14 years. Assisted suicide is a sensitive issue and constantly comes under intense scrutiny. This Legal InCite article contends that Section 2 is the English law in most need of reform, as the position surrounding assisted suicide in the UK is not as definitive as the statute would suggest. The law as it is interpreted and the impact of contemporary attitudes regarding one aiding another in their death has created ambiguity rather than certainty for those individuals seeking clarity on their position. The Director of Public Prosecutions (DPP) presently has to decide whether to bring legal proceedings against those who assist in the suicide of a friend or relative, only prosecuting if in the public interest to do so. The DPP has yet to prosecute any of the 100+ Britons who have helped loved ones go abroad to die at the clinic run by the Swiss firm Dignitas. Following the prominent case of Debbie Purdy, the DPP produced an interim policy providing guidance on the law on assisted suicide. This established issues that the DPP should consider when deciding whether or not to prosecute. Whilst the guidance emphasised that the law remains unchanged – assisted suicide is still an offence – it also recognised certain circumstances in which persuasive evidence might be provided against prosecution. This policy, as many observers both for and against euthanasia have argued, has not clarified the situation. As a number of criteria must be met in order to avoid prosecution for murder (and given the stresses and personal struggles relatives must also contend with) such guidelines may only serve to exacerbate already difficult and emotional circumstances. As author and Alzheimer’s sufferer Terry Pratchett has pointed out, the most anyone can do in the situation is to try and abide by the rules and ‘hope for the best’ – somewhat absurd when one considers the effect that assisted suicide has on the parties related to that person wishing to die. Section 2 of 1961 Suicide Act is thus in urgent need of reform. Although assisted suicide remains unlawful, the DPP seems to have made it clear that a prosecution will not be brought unless the circumstances are sufficiently exceptional. The result is that the DPP has unwittingly created an air of acceptability regarding assisted suicide without the framework with which one might find the clarity required in the circumstances; the interim policy could be said to be inherently flawed. It seems sensible, in my mind, to legalise assisted suicide in order to regulate it properly and provide the clarity that is lacking. An idea suggested by many advocates, including Pratchett himself, is the introduction of a tribunal which would address each case independently and establish the facts long before the assisted suicide took place. Decriminalising assisted suicide in this way would bring certainty to those wishing to help their loved ones and would provide a clear solution to address the problems created by the confusing legal position of assisted suicide. Andrew Maclean Full Time LPC, Leeds
12 Legal InCite – BPP Law School’s Student Publication
Features Before departing to the land of freedom and opportunity to assist capital defence attorneys on death row (oh the irony), I was warned not to enter into a discussion with Texans on socio-political issues, especially the death penalty. This struck me as strange, but I presumed it was because I would appear as the archetypal self-righteous European liberal (this wouldn’t be far from the truth). However, although this might have been a reason, what I encountered when I eventually dropped my guard after a few drinks in my local offered a justification to such advice… I had met this gentleman on a number of occasions at the bar; his role was the friendly American alcoholic and mine was the young English law graduate on a legal internship. “Oil and Gas”, was my usual response when someone delved into my job description. This was a believable reply because every ex-pat in Houston was working in that industry, and the last thing I wanted to do while enjoying a cold crisp beer was elaborate on my distaste for capital punishment and embark on the indignant defence of poor civilians. However, on this occasion I revealed my dirty secret – I worked in a non-profit law firm called Texas Defender Service, helping provide postconviction appeals for individuals on death row. To my surprise, and contrary to everything I had been told, this man seemed positively fascinated by this information. He began by assuring me that he was completely opposed to capital punishment – off to the perfect start, or so I thought. However, what was to follow shocked me to the core, and offered me a new perspective on judicial execution and ultimately justice.
AN EYE FOR AN EYE: Working on death row
His face turned pale and his voiced croaked, he explained that his daughter had been murdered during an armed robbery in 1992, and that the killer was executed by the state of Texas as punishment. The feeling of dread and confusion engulfed my brain –nothing in my training with Amicus (the charity organisation that facilitated my internship), had prepared me to handle such a situation. I knew how to talk to clients incarcerated and how to take witness statements from locals, but dealing with the victim’s family was not in my tool kit. Additionally, I was dumbfounded that he had watched the execution and reveled with joy at watching this human being be legally murdered. He continued with venom, “I wanted to watch him suffer, I wanted him to feel pain, the same way my daughter would have done.” Wait, how, who, what?? This man had just told me he was opposed to capital punishment?! I knew all the academic arguments for and against, but this one had me baffled. How had he deduced from the pro-death penalty premise that capital punishment provides a form of comfort and closure to the victim’s family that capital punishment is wrong? He explained, “what I experienced was not justice, it was an animalistic desire for revenge. I felt a strange pleasure in seeing this man die, but at no point during or since have I thought this was a just or suitable punishment for a democratic state to impose on its individuals.” Wow – I knew in my mind that capital punishment was morally, legally, and pragmatically repugnant, but who was I to question the victim’s family who sought retributive justice? Well, here was my answer – retributive justice (in the sense of ‘an eye for an eye’) is oxymoronic, there is no justice, it is simple revenge, not the sort of jurisprudence a civilized state should impose. So, how does my drunken encounter relate to human rights? In an odd way it provides an alternative context to justify this canon of law; especially in the face of the constant criticism it receives from the right wing press, as exemplified this weekend by our Home Secretary in the Mail on Sunday. Often I read that the Human Right Act is exploited and abused by murderers, rapist and illegal immigrants. These media outlets play off the fear of the citizen, who would want these people to ‘get what they deserve’. Yet, after my revelation in the pub, I hold human rights in even higher regard than I did before this encounter. Human rights not only protects the individual (as I had previously understood), but also protects the state from reducing itself to the level of irrational, injudicious desires; whether this be in deporting a suspected international terrorist (Othman v United Kingdom 2012) or prohibiting ‘inhumane and degrading treatment’ (Soering v United Kingdom 1989). In this context, human rights can be viewed as essential ethical pillars, laid down by law to act as a security net, in order to stop democratic states absorbing the mentality of my American friend. Hence, human rights prohibits actions that satisfy the state’s desires yet are innately unjust. For example, it is understandable that the majority wished for Abu Qatada to be deported to Jordan, in the same way as it is conceivable that the gentlemen took pleasure in watching his daughter’s murderer die. However, it was known that Qatada wouldn’t receive a fair trial, and therefore antithetical to our concept of justice. In my opinion, we as citizens of the United Kingdom are fortunate to be within the framework of the European Convention of Human Rights. Human rights law helps to protect our rational just selves from our animalistic irrational side – unfortunately, from my experience of the Texas capital punishment system, the irrational often takes precedence. Jake Filson, Full Time LPC, Manchester
Legal InCite – BPP Law School’s Student Publication 13
Bringing Secret Courts into the Mainstream:
The Justice & Security Act 2013 On 25 April 2013, the Justice & Security Bill received royal assent1, thereby now making it an Act of Parliament2. The new Act has two main focuses: the activities of Parliament’s intelligence and security committee3 (Part 1 of the Act), and the disclosure of sensitive material in court proceedings, a.k.a. the use of closed-material procedures (CMPs) in court proceedings (Part 2 of the Act). This article focuses on Part 2 of the Justice & Security Act 2013 (JSA 2013). Why has there been so much hype about the introduction of this piece of legislation?
Closed-materials procedures in the UK courts pre-JSA 2013
The heavy criticism aimed at the JSA 2013 is down to the controversial changes it makes to the use of CMPs in court proceedings in the UK.
Late 1990s The use of CMPs began in the late 1990s, in employment cases and in immigration cases. The enactment of the Employment Tribunals Act 1996 (the 1996 Act) granted the Secretary of State the power to make regulations for the establishment of employment tribunals4. Section 10 of the 1996 Act envisaged the particular category of cases where national security grounds may arise. A year later, the enactment of the Special Immigration Appeals Commission (SIAC) Act 1997 created the Special Immigration Appeals Commission (SIAC)5, and granted the Lord Chancellor significant powers to regulate the procedure of the SIAC6.
Prior to the introduction of CMPs in UK court proceedings, the normal route to exclude certain evidence of prejudicial effect to the public interest from being heard at trial was by application to the court to apply the common law principle of public interest immunity (PII) to this specific evidence. A successful application would result in the court regarding this evidence as inadmissible, and like any piece of inadmissible evidence, neither party can rely it on at trial.
Sensitive material, the disclosure of which would be damaging to the interests of national security (Section 11 JSA 2013). This is usually intelligencerelated material. It is not currently allowed to use closed materials in criminal proceedings.
The alternative route to prevent disclosure at trial of certain evidence of prejudicial effect to the public interest was by an application to the court to use a closedmaterial procedure in the proceedings. A successful application would prevent the disclosure of certain evidence to the other party, but would allow the non-disclosing party to rely on the undisclosed evidence at trial. A glance at the history of CMPs in UK court proceedings reveals the controversy behind the changes proposed by the JSA 2013.
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2000 The early noughties saw the extension of CMPs into other cases. In 2000, Parliament enacted the Regulation of Investigatory Powers Act 2000 (RIPA 2000), leading to the creation of the Investigatory Powers Tribunal (IPT)7. Following powers granted to the Secretary of State under RIPA 2000, the Secretary of State adopted the Investigatory Powers Tribunals Rules 2000 (the IPT Rules) to govern the procedure of the IPT. Rule 6 of the IPT Rules allows for the use of CMPs by the IPT on the familiar grounds of where it “is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic wellbeing of the UK, or the continued discharge of the functions of any of the intelligence services”. Post 9/11/2001 After the events of 9/11, Parliament passed the Anti-Terrorism, Crime & Security Act 2001 (ATCSA 2001) as emergency legislation to allow for the indefinite detention of
Features suspects. Subsequently, there was a surge of activity in the exercise of the significant powers granted to the Secretary of State to regulate court proceedings in certain cases. Applying the provisions of the SIAC Act 1997, in 2003 the Lord Chancellor adopted the SIAC (Procedure) Rules 20038 (the SIAC Rules). Rule 4 of the SIAC Rules allows the SIAC to use CMPs where it is in the interests of national security; the international relations of the UK; the detection and prevention of crime; or in any other circumstances where disclosure is likely to harm the public interest. Similarly, in 2004 by applying the provisions of the 1996 Act, the Secretary of State adopted the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (the 2004 Rules). Rule 54 of the 2004 Rules allows for the use of CMPs in employment cases where it is “expedient in the interests of national security”. 2004 The compatibility with the ECHR of the ATCSA 2001’s regime of indefinite detention was successfully challenged in 2004 in the case of the Belmarsh detainees9. In response to this declaration of incompatibility, Parliament introduced the Prevention of Terrorism Act 2005. This had the effect of repealing the ATCSA 2001’s regime of indefinite detention, and replacing it with the introduction into civil proceedings of a system of control orders. Therefore, those who were subjected to the indefinite detention regime immediately became subject to the control orders regime. 2009 The regime of control orders in civil proceedings was subsequently successfully challenged in A & others v UK 10. The House of Lords deemed the SIAC as the best placed to ensure that no material was unnecessarily withheld from the detainee such that (s)he would be in a position to effectively challenge the allegations against them. 2010 In 2010, the case of The Queen (on application of Maya Evans) v Secretary of State for Defence11 saw the use of CMPs in judicial review for the first time. In this case, the Divisional Court had to determine whether UK practice in Afghanistan in fact complied with the Secretary of State’s policy not to transfer detainees where there is a real risk that they might face torture or serious mistreatment. The parties agreed to the use of CMPs12 in order to avoid the time wasted on an application contesting their use that was bound to fail anyway13. 2011 In the case of Al Rawi and others V the Security Service and others14, the UKSC ruled that it had no power to expand the use of CMPs into civil proceedings, such power lying only in the hands of the executive to legislate to that effect. The UKSC confirmed in the subsequent case of Tariq v Home Office that the use of CMPs in certain employment cases, where it is necessary for national security, was not incompatible with Article 6 ECHR (the right to fair trial) where sufficient safeguards existed to protect the interests of the claimant15. 2012 The later case of The Queen on application of Serdar Mohammed v The Secretary of State for Defence16 concerned PII and confidentiality rings authorised by the court. During these proceedings, it was unearthed that the closed evidence that was kept from Evans in her 2010 case was in fact relevant to the case of Serdar Mohammed, as in this case the Divisional Court also had to determine whether UK practice in Afghanistan complied with the Secretary of State’s policy not to transfer detainees where there is a real risk that they might face torture or serious mistreatment. Counsel for Serdar Mohammed had made an application to allow disclosure to the confidentiality ring established in the current case of parts of the closed judgments handed down in the Evans case. However, this application was dismissed in the judgment handed down on 18th December 2012.
the court to consider two features of the administration of justice: fairness and effectiveness. The use of “and” suggests that the second limb is satisfied only where both features of the administration of justice are met. Therefore, under the second limb of the test, the court must consider its duty to ensure the effective progress of the trial and the claimant’s right to a fair trial. The effect of CMPs in practice On a successful application to the court for the use of a CMP, the court would proceed to give special directions on the adducing of evidence at the trial. Whereas in normal court proceedings these special directions would order the disclosure of material, in a CMP, the court’s directions would give permission for the nondisclosure of material if the court considers that disclosure would be damaging to the interests of national security19. This is, of course, non-disclosure to the other side – the closed material would still be required to be disclosed to the court. The administration of the trial process in a CMP demonstrates clear affronts to the claimant’s basic rights to a fair trial. Firstly, the claimant is prevented from being present at the closed proceedings where the closed material is heard. So the absence of the claimant leads to the claimant being prevented from giving evidence in his own defence. In an attempt to remedy this, Special Advocates are used in CMPs to represent the interests of the absent claimant in the closed proceedings. Special Advocates are security-cleared advocates employed by the government for the specific purpose of CMPs. Secondly, when advising their client, the Special Advocate cannot disclose the closed material in conference. This means that the advice given by the Special Advocate is usually too vague and imprecise to allow the client to give the Special Advocate any clear instructions. So, in practice, the client ends up not wanting to say anything for fear of anything they say later being used against them. This silence by the claimant can lead to adverse inferences being drawn by the court. So the overall result of employing a CMP procedure is that the claimant is put in a significantly disadvantaged position than in normal court proceedings. The EU, the ECHR, and the Justice & Security Act 2013 – all part of the same circle? The introduction of the JSA 2013 is a clear expression of the increasing politicisation of human rights, where by definition, “human rights” are intended to outline the basic enjoyments of a dignified humanity, which claims to be the fruit of democratic governance. The history of the progressive use of CMPs in UK court proceedings clearly demonstrates that the drive behind the extension of CMPs is Parliament’s attempt to control the release of certain evidence via the courts that could be harmful to Parliament’s interests domestically and internationally, at the cost of the accused’s right to a fair trial. Such radical changes to the English legal system makes one wonder whether the current talks on the UK quitting the EU has anything to do with the conceivable and imminent accession of the EU to the ECHR, and the resulting duties that such an accession would impose on EU member states. Dina Mahmoud, Part Time BPTC, Holborn Further information on the Justice and Security Act 2013 is available at http://services.parliament.uk/bills/2012-13/justiceandsecurity.html 1
The Justice & Security Act 2013, accessible here: http://www.legislation.gov.uk/ukpga/2013/18/contents/enacted/data.htm
This committee is responsible for political oversight of MI5, MI6, GCHQ and other agencies.
Progress of the Bill before the two Houses of Parliament Acting on the UKSC’s judgment in the 2011 case of Al Rawi and others, almost 11 months ago, Parliament brought the Justice & Security Bill before the first of the two scrutinising bodies, the House of Lords, for its 1st reading on 28th May 2012. In the space of 6 months, the Bill had gone through the reading, debating, and reporting stages before the House of Lords, and was put before the second of the two scrutinising bodies, the House of Commons. In the even shorter space of 3 months, the Bill had gone through the reading, debating, and reporting stages before the second of the two scrutinising bodies, the House of Commons. Then the ping-pong stage between the two Houses began. In less than 2 months, a finalised version of the Bill was put forward for the royal seal of approval. The Bill received royal assent less than one month later, on 25th April 2013.
Section1 Employment Tribunals Act 1996
Section 1 SIAC Act 1997
Section 5 SIAC Act 1997
Section 65 RIPA 2000
A (FC), X (FC), and others (FC) v Secretary of State for the Home Department,  UKHL 56
The framework of the JSA 2013 The new act introduces a two-stage test that the court has to apply when considering whether to order the use of a CMP in any civil proceedings: firstly, where the material concerned is material that would be subject to the general rules and exceptions of disclosure in civil proceedings17, and secondly, that it is in the interests of the fair and effective administration of justice in the proceedings to allow the use of a CMP18. The first limb of the test effectively means that all evidence subject to disclosure in civil proceedings is covered by this test. The second limb of the test prompts
 ECHR 301
 EWHC 1445 (Admin)
 EHWC 1445 (Admin) at paragraphs 8 and 13
article by counsel for Evans, Daniel Carey, in The Guardian: http://www.guardian.co.uk/law/2013/jan/11/maya-evans-secret-courts-torture
 UKSC 34
 UKSC 35
 EWHC 3454 (Admin) Section 4 JSA 2013 Section 5 JSA 2013 19 Section 8(c) JSA 2013 17 18
Legal InCite – BPP Law School’s Student Publication 15
A life sentence or a life of luxury?
I would like to explain the background to this article before anything else. Recently a good friend of mine sent me a screen shot of a Facebook page. The screen shot was of a well-known person in our home town. This person had recently been sentenced to six years imprisonment for a brutal attack on another person. This screen shot said and I quote: “I am stuck in the big house and feeling lonely, if anyone would like to cheer me up you can contact me on...” He then went on to give the address of the prison plus his mobile number. When I received this screen shot the first thing that crossed my mind was ‘how is he able to be on Facebook when he is in prison?’ My friend didn’t have an answer to this. I was intrigued to find out more and so I took it upon myself to carry out research and write this article. The biggest question this poses is: are prisons a true deterrent or are they actually a life of luxury? Whilst researching adult prisons I came across a quote from the Telegraph that I thought was quite fitting and hit the nail on the head. “Prisons have become so comfortable that some offenders prefer to stay on the inside rather than face life outside.” Offenders receive a bed, heating and 3 meals a day. Obviously these are human rights and to be without it would go against these rights, however inmates themselves have admitted they also receive satellite TV and video game consoles. These to me are not human rights; some people who work for a living and abide by the law cannot afford luxuries such as satellite TV and video game consoles. Some people cannot even afford the basic human rights of food, shelter and warmth, so how is it that someone who has committed a crime gets ‘better’ rights in prison than someone who does not break the law, works hard but still cannot make ends meet. The Prison Officers Association assistant general secretary, Glyn Travis, has stated “prisoners receive a wage for being in prison; they receive a bed, TV in all cells, breakfast in bed on many occasions and cash bonuses for good behaviour.” This shows that prisons are not a deterrent and that offenders are treating prisons like homes that they can go back to again and again. To go back to the Facebook screenshot, my research led me to the discovery that prisons do not allow inmates to log into Facebook or access to the internet.
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Many mobile phones are smuggled in which allows offenders to update their Facebook statuses from inside the prison. This shows that not only are offenders breaking the law, which puts them in prison in the first place, but they are also breaching prison rules by smuggling mobile phones in. Javed Khan who is the Chief Executive of Victim Support perfectly encapsulates how the majority of people feel about this subject saying “offenders using Facebook in prison makes a mockery of the idea that they are being punished.” The Government has realised the disparity of the prison system and the need for reform. Justice Secretary Chris Grayling has stated he wants the arrival in prison for offenders to be an experience they do not want to repeat. There are currently three levels of privileges available to prisoners-basic, standard and enhanced. Currently all inmates must be placed initially on the middle tier when they enter prison. This middle tier allows them to wear their own clothes, have a TV in their cell and gives them more family visits. However the reform which is set to take place from November 2013 will start all prisoners at a new entry level for the first two weeks of their arrival to prison. This would mean inmates will be made to wear a uniform during their first two weeks and their access to private cash will be restricted. Satellite TV will be banned altogether and the environment in prison will be basic. It has been said that the reform will make prisoners work harder for any privileges. Chris Grayling has also stated “it is not right that some prisoners are spending hours in their cell watching day time TV while the rest of the country goes out to work.” With any reform there will be criticism. Two criticisms that particularly stood out for me were from ex-prisoners. One stated that the reform will be potentially harmful to first time offenders and the other stated the reform will make vulnerable prisoners targets for bullies. In most cases, people have welcomed the reform and have stated it is a step in the right direction to get the prison system back in order. Finally to answer my own question, are prisons a true deterrent or a life of luxury? I think at this moment prisons are not a true deterrent. Prisons will only be a deterrent to someone who wants to be deterred, who wants to learn from their mistakes and who wants to make a better lives for themselves. If the reform is put in place properly there is a chance that offenders may be deterred. If, however, an offender has a better life in prison than he does outside of prison he will always find a way to go back. With any new system it will take time before we see changes for the better but I believe this reform is a step in the right direction for the UK prison system. Ronke Adeyemi Full Time LPC, Leeds
Pro Bono & Access Justice
Stepping up to the Bar In times of economic hardship frontline legal services face a tripartite challenge: reduced private funding, government austerity measures and increased demand for their services. Across the pond in New York, Chief Judge, Jonathan Lippman has responded to what he calls “the justice gap” by making entrance to the Bar conditional upon fifty hours of pro bono work. With the looming Legal Aid Sentencing and Punishment of Offenders Act (LASPO) and £350m in cuts about to hit, it is time to ask the question: should we be implementing a similar scheme in our own jurisdiction? Could trainee barristers and solicitors help to fill the growing “justice gap” in England and Wales? The concept has long been divisive in our legal community. The main criticism being that mandatory pro bono amounts to nothing more than a tax on legal professionals, where the state saves money by forcing would-be-lawyers into a system of neo-indenture. Others worry about the implications of losing the altruistic spirit of pro bono and the risk of providing indigent citizens with unwilling lawyers. These concerns are valid but they disregard the potential benefits for aspiring legal professionals. Popular culture would have us see pro bono lawyers as righteous white knights and self-sacrificing Robin Hoods. In reality, astute law students see pro bono as an opportunity to improve their career prospects and gain valuable experience. The likelihood is that a mandatory pro bono regulation would draw on this competitive propensity, with ambitious students seeking out prestigious placements and higher levels of responsibility. Many universities already employ specialist pro bono staff to coordinate voluntary positions and help students find appropriate internships alongside their studies, but educational institutions would face a big challenge in implementing a mandatory version of such schemes. We must not, in improving access to justice for the community, limit access to a legal career for students of lower socio-economic status. Chief Judge Lippman suggested that the quota could be easily fulfilled in a weeklong summer placement, but it cannot be assumed that this will be possible for all. Many students are juggling part-time jobs with family responsibilities and mounting debts. In these cases fifty additional hours could seem an insurmountable task and it will take careful management to ensure that pro bono work can be conducted within flexible hours and spread out over a longer period of time when necessary. It is important that we do not further corroborate the image of the legal world as an “old boys’ network” characterised by inaccessibility and populated by the privately educated. Only in the interests of diversifying legal education is it reasonable to expect students to step up and complete a limited number of hours. It should not be implemented as an incarnation of community service but as an educational tool. We do not need to completely discount the altruistic aspect of pro bono. A mandatory scheme would be an opportunity to foster, early on, a sense of social responsibility within the legal profession and counter the characterisation of lawyers as cold and self-seeking. The Law Society has long been rolling out campaigns aimed
at promoting the profession and improving the image of solicitors in the public eye. Pro bono is a great way to do this. Any tangible community benefits of making pro bono mandatory will be limited. We must not forget that many trainee lawyers are already accomplishing great pro bono work. The LawWorks Student pro bono reports (published in 2000, 2003, 2006 and 2011) show an exponential increase in student pro bono activity, with the latest finding that at least 65 percent of law schools in England and Wales run pro bono schemes. These findings are based on institutional programs and therefore, when non-respondents and students working independently are factored in, the percentage could be significantly higher. If the country is to see a real increase in access to justice it will take an assertive commitment from lawyers across the board. The 2012 LawWorks Pro Bono Survey found that there is “widespread concern [amongst firms] about the impact of LASPO but almost no planning or appetite for moving into new areas of pro bono work to fill the gaps". In order to combat the post-LASPO crisis pro-active attitudes are required: more firms committing billable hours, high street practices moving towards more structured pro bono programmes and more lawyers seeking pro bono costs for the Access to Justice Foundation. Mandatory pro bono for our trainees will be a drop in the ocean. Even if the Bar Council and Law Society were to make pro bono mandatory for all practising lawyers (as it is in some US States) it could not be a substitute for an adequately funded system of legal aid. It is the responsibility of legal professionals to do what they can to help their communities, but it is not their responsibility to do what the government will not. Whilst mandatory pro bono may well provide additional skills to legal trainees and assistance to the public, under no circumstances can it be expected to effectively mitigate the damage that will be done by LASPO. It is a step in the right direction, but it remains that; a single step in what is sure to be a long journey. Rebecca Swan Full Time LPC, Leeds This article was awarded runner up in the Access to Justice Foundation Essay Competition. The Competition invited students to write upon the merits of the introduction of a compulsory element of pro bono work as part of barristers’ and solicitors’ training in England and Wales, as is now the case for the New York Bar. Rebecca was presented with her certificate by Attorney General Dominic Grieve QC.
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Pro Bono & Access Justice
Introduction As part of the Law in Practice aspect of the BPTC, I undertook some voluntary work with the South East Crown Prosecution Service as a panel member on their Local Scrutiny Involvement Panel (LSIP or the Panel). LSIP is an initiative by the CPS which seeks to engage the community to help in assessing and improving the performance of the CPS’ prosecution work. It exists largely to encourage community involvement in the work of the CPS and to increase transparency and scrutiny of its work by providing a forum for consultation. Over the course of my voluntary work I attended two LSIP meetings; one on 4th September held at the CPS’ Brighton office and the other on 28th September at the Guildford office. At each of these meetings, the Panel focused on a number of specific cases involving violence against women and girls, honour based violence, disability hate crime and crimes against older people. The article below therefore aims to highlight the work of LSIP with reference to the operational structure of the CPS, the Core Quality Standards and the Code for Crown Prosecutors. Organisation and Management of the CPS South East At a national level, the CPS is overseen by the Director of Public Prosecutions, Keir Starmer QC who is responsible for prosecutions, legal issues and criminal justice policy. The CPS is then divided into 13 areas across England and Wales with the South East Area covering Kent, Surrey and Sussex and serving approximately 3.9 million people. It is governed by the Chief Crown Prosecutor Roger Coe-Salazar who is responsible for its overall functions and assisted by a number of people including an Area Business Manager and five Senior District Crown Prosecutors. Of these three are responsible for the day to day running of the Area’s three Districts (the Western District covering Surrey and West Sussex, the Central District covering East Sussex and the Eastern District covering Kent), while the other two run specialist casework units; one dealing with rape and serious sexual offences and the other with specialist fraud, money-laundering and large scale human and drugs trafficking cases.
The key specialist casework units within the CPS South East are briefly described as:
8. Exercise the right to appeal when it is felt that the court has not made the right decision (Standard 10)
1. Rape and Serious Sexual Offences Unit This unit deals with offences across the whole of the South East and works with partners, including the police, to improve the service offered to victims of rape, child sexual abuse, other serious sexual offences and any issues arising from false allegations of rape. Staffed by specially trained lawyers and led by a rape coordinator, the Unit offers specialist legal advice, decision making and support to victims.
9. Deal with complaints promptly and openly (Standard 11)
2. South East Complex Casework Unit This is a team of specialist lawyers, paralegal officers and administrators who deal with the most serious cases of international crimes, fraud or money-laundeing, large scale human or drugs trafficking and organised crime activity. LSIP and the CPS Standards Core Quality Standards1 The Core Quality Standards were introduced in 2010 and they set out the quality of service that the public are entitled to expect from those who prosecute on their behalf. There are 12 core standards including that the CPS: 1. Make timely, effective and fair charging decisions in accordance with the Code for Crown Prosecutors (Standard 2). 2. Use out-of-court disposals as alternatives to prosecution to gain speedy reparation for victims and the public (Standard 3). 3. Oppose bail for certain defendants taking into account any potential threats to the public (Standard 4) 4. Prepare cases promptly and in accordance with the Criminal Procedure Rules (Standard 5) 5. Assess the needs of victims and witnesses to keep them informed of progress of their case (Standard 7) 6. Explain to victims when a case is stopped or charge is substantially altered (Standard 8) 7. Assist the court in the sentencing process and seek to confiscate proceeds of crime (Standard 9)
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10. Engage with communities in order that the CPS is aware of their concerns (Standard 12) Code for Crown Prosecutors2 The Code sets out the guidelines that CPS prosecutors are obliged to adhere to during their case decision making processes. Crown Prosecutors are required to review each case brought before them against the Code adhering to the principles that: 1. Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each charge. They must consider what the defence case may be and how it is likely to affect the prospects of a conviction. 2. Where there is sufficient evidence to justify a prosecution or to offer an out-of-court disposal, prosecutors must go on to consider whether a prosecution is required in the public interest. LSIP’s role therefore is not restricted to the performance of Prosecutors during the conduct of the case but it involves a deeper analysis beginning at the point that the CPS receives a case-file through to post conviction matters. The emphasis throughout is that the CPS Code and Standards are upheld, resources are appropriately used during the conduct of the case and that the victim’s concerns are given due attention. LSIP’s constant reference to the Core Quality Standards and the Code for Crown Prosecutors during the review of cases means that its work lies at the heart of the most critical public facing roles of prosecution work: namely, the prosecutor’s obligations to the public and specifically to victims of crime. Profile of the types of cases reviewed by LSIP The key cases that the Panel focuses its attention on include: 1. Disability Hate Crime – Section 146 of the Criminal Justice Act 2003 imposes a duty upon the courts to increase the sentence for any offence aggravated by
Scrutiny Involvement Panel Pro Bono & Access Justice
The CPS South East Local
hostility based on the victim’s disability (or presumed disability). The section ensures that these offences are treated seriously by the police, prosecutors and courts. LSIP’s role in such cases is to assess whether the CPS paid due attention to the needs of the victims and approached the case with all due regard bearing in mind the section.3 2. Violence against Women and Girls - The South East Area comprises a unit which covers gender-based violence that results in or is likely to result in physical, sexual or psychological harm or suffering to women. It includes crimes such as forced marriage, domestic violence, rape, sexual offences, female genital mutilation and honour-based violence. LSIP prioritises the review of such cases as a way of accelerating and improving the CPS’ performance. 3. Crimes against Older People – the CPS understands that crimes against older people are linked to ageism as a prejudicial set of ideas. Older people can be targeted because of their perceived or actual vulnerability or their unequal access to safety.4 4. Racially or Religiously Aggravated Crimes – these are offences against the person where the prosecutor has to prove a racial or religious element on top of the basic offence. The basic offences that can be charged include offences of assault or wounding, harassment, damage and public order offences such as causing people to fear violence or harassment.5 5. Honour Based Crime – this is the type of crime that is committed to protect the perceived honour of a family or community. The crime is associated with an individual being accused of shame or bringing shame to the family or community. With regard to victim numbers, 15% of them are men whilst under-18s account for 25% of the total number. The type of victims affected include people facing disability, gay people, gang members, religious (or non-religious people) etc. The victims are not restricted to minority races as the majority white population also suffers from such crimes. Commission of the crime may result in murder, fear of or actual forced marriage, physical and emotional abuse, child abuse, rape, kidnap and financial sanctions.
The value of LSIP to the CPS South East LSIP performs a fundamental albeit understated role in the organisation and functions of the CPS. This is obvious from the amount of attention and resources that the CPS South East has afforded the Panel and the quality of the CPS staff involved in organising and running it. Another reflection of this value is in the willingness of external agencies and charities to engage with the CPS through LSIP. Further, the Panel helps to keep the CPS transparent and accountable and acts as a check on how tax payer’s money is used. The CPS’ engagement with the community through LSIP also helps to demystify the legal profession by acquainting lay members of the public with the legal procedures involved from arrest through to sentencing and post-conviction matters. Furthermore, it adds a layer of humanity to prosecution work in that Crown Prosecutors are no longer only required to be objective and impartial but to also consider the effect of their work on victims of crime. As such you can argue that the CPS is no longer a prosecutorial factory belting out cases out of necessity but an institution determined to find the right solutions for the victims. In addition to this, LSIP ensures that the work of the Crown Prosecutor is consistent with Core Quality Standards. Thus it is not enough merely to proceed with a case through to sentencing, but prosecutors are obliged to have victims in their minds and those who do not are held to account. This emphasis on the victims of crime in turn acts as a source of comfort to the vulnerable and those who may otherwise be reluctant to report crimes particularly in the areas listed above. The limits of LSIP However, for all the advantages listed above, there are some limits to what can be achieved through LSIP. Firstly, the fact that the Panel exists under the umbrella of the CPS means that it cannot be totally independent. The Panel is chaired by a Deputy Chief Crown Prosecutor and the randomly selected case files reviewed by the Panel are still ‘selected at random’ by
CPS staff. Furthermore, there is an inherent conflict between the requirement of the Crown Prosecutor to be independent, fair and objective and the overwhelming emphasis through LSIP on victim welfare. Whilst there is no suggestion any Crown Prosecutor’s objectivity has been affected by this emphasis on the needs of the victims, the CPS must be careful not to place a disproportionate emphasis on this and thereby tamper with Crown Prosecutors primary obligation to act in the interests of justice. In addition to this, factors such as the quality of advocacy and the research work carried out by Crown Prosecutors is not within reach of the Panel even though this may have an impact on whether or not a case is won and by extension the impact on the victim. Lastly, the CPS relies in large part on the efficiency of the police in gathering and delivering evidence in time. Problems arising out of insufficient evidence or delays caused by the police may have a huge impact on victim welfare but the Panel is limited in the amount of pressure that it can place on external agencies and investigating officers. Thus whilst there is great value in LSIP reviewing some key cases, there are some significant limits in how far the Panel can reach. Walker Syachalinga Part Time BPTC, Holborn 1
Core Quality Standards, March 2010
The Code for Crown Prosecutors, February 2010
CPS Policy for Prosecuting Cases of Disability Hate Crime 2007
Crimes against Older People – CPS Prosecution Policy July 2008
Racist and Religious Crime – CPS Prosecution Policy 2010
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Pro Bono & Access Justice
The Identity Crisis of Categories:
Volunteer or Employee in Em A significant segment of the labour force of the UK is involved with volunteering, making it a surprisingly popular pastime. According to statistics quoted by ACAS (the Advisory, Conciliation and Arbitration Service), in 2010/2011, 25% of people of working age participated in volunteering at least once a month and 39% at least once a year.1 Volunteering England suggests that a volunteer is driven by the desire to devote their time and efforts to benefit the environment, groups or individuals other than, or in addition to, close relatives. It is also an expression of freedom of choice and is typically unpaid.2 The charitable nature of the role is undeniable, with the principle of giving without expecting anything in return being firmly planted in its definition. Ironically, volunteers are left more exposed in terms of legal protection in comparison to actual employees. Under the current legal regime, an identity crisis of categories reigns. The classification of volunteers relies heavily on the factual circumstances of the arrangement with the organisation. In this environment, the worker (the term being used in its generic, neutral and non-legal sense) and the charity are left to rely on their own common sense and powers of interpretation. The purpose of this piece is to shed some light on this very tricky and confusing method, so as to encourage steps being taken in the future to promote greater understanding between the worker and the charity. The distinction between volunteers and employees is crucial when it comes to the scope of employment law rights. If classified as a volunteer as opposed to an employee, one finds himself deprived of some absolutely vital safeguards: national minimum wage requirement, right to holiday pay, entitlement to maternity and sick pay and to notice, protection against discrimination, the option of complaint to the Employment Tribunal by reason of unfair dismissal, to name but a few.3 This is not to say that volunteers are left to brave the storms of legal conflict entirely on their own. The category of “volunteers” is in fact under the guardianship of health and safety regulations, driving at work requirements and the Data Protection Act provisions.4 It is blatantly clear that the status of an employee will entitle the said worker to another layer of protection under employment law that is much stronger in intensity and covers a broader spectrum of issues. A range of factors have been recognised in the eyes of the tribunals as indicative of the true nature of the relationship between the volunteer and the charitable organisation. It seems that the classification depends on the mutual obligations established between the parties, the contract and the consideration (or lack thereof). Generally speaking, in terms of mutual obligations, the worker must be in attendance regularly, while the employer provides something in return. The contract need not be in writing and it is unlikely that simply labelling the worker as a “volunteer” will suffice. Consideration, in the absence of a salary, will usually be based on the reimbursed expenses.5 When setting out the duties of a volunteer, the charity must be careful to avoid language suggesting compulsion on the volunteer to comply or consequences in case of a failure to do so. In the case of South East Sheffield Citizens Advice Bureau v Grayson (2004, IRLR 353)6, the bureau expected a minimum commitment of six hours per week of its volunteers. In return, the bureau ensured the volunteers received training, supervision, experience and insurance cover in respect of any liability for negligent advice. The issue was whether there was a contractual relationship in this case, under which services are provided in exchange of consideration. The Employment Appeals Tribunal held there was no such relationship and the volunteers were not employees. Let us examine its arguments. Firstly, the signing of the ‘volunteer agreement’ was not compulsory and it did not specify details on holiday pay, payment to volunteers, but merely covered reimbursement for expenses. Secondly, it was a case of setting out the “reasonable expectations” of the parties, not their contractual commitments. Thirdly, the volunteers were at full liberty to withdraw their services at any time, with or without notice, and the bureau had no contractual remedy in such a situation.7
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Training should only be relevant to the role the volunteer is assigned. In terms of expenses, it is advisable that the charity should repay only expenses actually incurred in contrast to a daily rate or a flat rate which may be viewed as remuneration in the form of wages or consideration. The charity should also refrain from granting benefits to the volunteer which may be seen as reminiscent of a relationship of employment, e.g. sick pay or free accommodation. Benefits pertaining to essentials such as tea, coffee and meals should not pose a problem. The case of Migrant Advisory Services v Chaudri (UKEAT/1400/97) makes for a vivid illustration of this point.8 The case involved a volunteer who did administrative work and had her “volunteer’s expenses” paid (despite the fact that she did not incur any expenses). Those payments also covered periods when the volunteer was off sick or on holiday. The Employment Appeal Tribunal ruled that the worker here was actually an employee, as she received payment for work.9 Another landmark case is X (Appellant) v Mid Sussex Citizens Advice Bureau and another (Respondent)  UKSC 59 . The case reached the Supreme Court in 2012 and posed the question whether volunteers should enjoy protection from discrimination under The EU Framework Directive 2000/78/EC of 27 November 2000 on Equal Treatment in Employment and Occupation. Mrs X was an unpaid legal adviser working at the CAB. She did not have a formal contract, but a Volunteer Agreement phrased in “aspirational” terms. Mrs X was dismissed from her role after having been diagnosed with HIV. Had Mrs X been engaged under a contract of employment, she would have had means of redress in the form of a claim for disability-related discrimination before the Employment Tribunal. The argument raised on Mrs X’s behalf before the Supreme Court was that her work as a volunteer falls under the “occupation” category of protection (regardless of the fact that it was unpaid)10 under the Framework Directive. The Supreme Court dismissed the appeal. The intention underlying Article 3(1)(a) was not that it should encompass voluntary work. Thus, volunteers were denied protection of discrimination. A charity in the role of an employer must be mindful of the risks involved in treating a worker as a volunteer, when in fact he or she is classified as an employee. In such a case, the organisation might be inadvertently breaching an array of provisions under the Working Time Regulations, health and safety regulations, rules on protection from harassment and discrimination, right to request flexible work arrangements and right to file a complaint on the basis of unfair dismissal. Failure to pay the National Minimum Wage may lead to civil and criminal sanctions.12 The National Council for Voluntary Organisations offers some tips for charities when it comes to best practice in ensuring that the worker is engaged as a volunteer rather than an employee. It is advisable to have a document in writing to reflect the framework of the arrangement. Nevertheless, a pattern of behaviour may be an adequate substitute for a contract. To convey the voluntary nature of the arrangement, the charity should refer to goals, hopes and policies rather than rights and obligations. Avoid words with contractual connotation such as “contract”, “pay”, “employer/employee” etc. The charity might wish to integrate the following caveat: 'This agreement reflects the hopes and intentions of the volunteer and the charity, and is not contractually binding in any way on either party.' Differentiate between paid staff and volunteers - equal opportunities policy still applies, but have separate documents for each. The primary principle to remember is never to phrase or treat rules as requirements that impliedly or explicitly bind the volunteer in an obligatory fashion.13 Ultimately, it is absolutely essential for both workers and organisations to promote the record straight from the beginning and adopt the correct terminology, both in form and substance. Neither can afford to disregard the perils of an identity crisis of categories. The worker should be informed of the exact dimensions of his rights and the charity should be educated as to the intricacies of determining the said dimensions. It is only then that the two partners once united by common humanitarian goals and values can truly achieve a (if not contractual, then metaphorical) meeting of the minds. Sofiya Kartalova Full Time BPTC, Holborn
Pro Bono & Access Justice
ployment Law? 1
http://www.acas.org.uk/index.aspx?articleid=3603, accessed on 14/04/2013.
http://www.volunteering.org.uk/iwanttovolunteer/what-is-volunteering accessed on 14/04/2013
Mike Scott, Charles Russell LLP, “Volunteer Workers For Charities” guide, http://www. charle srussell.co.uk/UserFiles/file/pdf/Charities/Guide_-_Charities_-_Volunteer_rights.pdf accessed on 14/04/2013
http://www.acas.org.uk/index.aspx?articleid=3603 accessed on 14/04/2013
Mike Scott, Charles Russell LLP, “Volunteer Workers For Charities” guide, http://www.charl esrussell.co.uk/UserFiles/file/pdf/Charities/Guide_-_Charities_-_Volunteer_rights.pdf accessed on 14/04/2013
Forsters LLP, Volunteers v Employees, Forsters Newsletter November, 2009 http://www.fors ters.co.uk/cmsfiles/docs/NwsltNov09_Volunteers_Employees_SR_FINAL.pdf accessed on 14/04/2013
Thompsons Solicitors, “Willing volunteers?”, Labour and European Law Review, Issue 91 (July 2004) http://www.thompsons.law.co.uk/ltext/l1340008.htm accessed on 14/04/2013
Forsters LLP, Volunteers v Employees, Forsters Newsletter November, 2009 http://www.fors ters.co.uk/cmsfiles/docs/NwsltNov09_Volunteers_Employees_SR_FINAL.pdf accessed on 14/04/2013
Morton-Fraser Solicitors, The fine line between volunteers and employees, http://www. morton-fraser.com/publications/factsheets/2397_the_fine_line_between_volunteers_and _employees accessed on 14/04/2013
Andy Williams, Should volunteers be protected from discrimination under European law?, HRMagazine, 16th November 2012, http://www.hrmagazine.co.uk/hro/ features/1075359/discrimination-volunteers-workplace accessed on 14/04/2013
Rosalind English, Volunteers not entitled to protection of disability discrimination laws, 1 Crown Office Row UK Human Rights Blog, 14th December 2012, http://ukhumanrightsblog.com/2012/12/14/volunteers-not-entitledto-protection-of-disability-discrimination-laws/ accessed on 14/04/2013
Nabarro LLP, Experience or Exploitation? Unpaid Work: Staying on the Right Side of the Law, Nabarro Employment Briefing, March 2011 http://www.nabarro.com/Downloads/EmploymentExperience-or-exploitation.pdf accessed on 14/04/2013
The National Council For Voluntary Organisations, The Legal Status of Volunteers, http://www. ncvo-vol.org.uk/advice-support/workforcedevelopment /hr-employment-practice/ managing- volunteers /legal-status accessed on 14/04/2013
? Legal InCite – BPP Law School’s Student Publication 21
Pro Bono & Access Justice
BABY PENELOPE WINS THE LEGAL INCITE COMPETITION
PRISONS Preconceptions are easy to form;
BPP Students’ Association created a fantastic competition asking readers to take a photo with the Legal InCite. The competition received a record number of entries, with a number of innovative pictures sent in. BPP Leeds LLB Student, William Kay sent in this winning picture of his daughter Penelope with the Legal InCite. Full details and further competitions are available on www.bppstudents.com Presenting the prize, Senior Editor, Shabhan Aziz commented “After receiving so many excellent photos we had the extremely difficult task of deciding which the best entry was. However, after hours deliberating, the judges unanimously decided that baby Penelope won the competition! Furthermore, it seems that one day Penelope will go on to have a successful legal career – watch this space!”
...is a way to discard them
Before volunteering on the Streetlaw Prisons project I had never been inside a prison or spoken to any known criminals. I participated because I believe that this is a privileged position, which I am lucky to be in, and from which I have a responsibility to use my knowledge and skills to help others. Prisoners are vulnerable individuals. The issues that they are victims of, such as inadequate education, drugs, and mental health problems, are those with which we empathise when we see them integrate with society'.
With Streetlaw Prisons we have the chance to provide some of the vital legal education that is so necessary to their everyday lives. On our first visit we ran a focus group with representatives from each wing. They told us their legal concerns and we are now preparing information to address those concerns. Several issues, such as the appeal process and legal aid, arose in many of their individual stories. For us to go back and provide some clarity on these issues on a consistent basis is an essential service, of which many are in need. Another major problem that many inmates experience is difficulty in communicating with their solicitors their primary link to the legal system. We are an informal and approachable alternative source of information. We do not primarily focus on their specific cases so it is a wonderful chance for us to supplement the advice their solicitors give them. Furthermore, several of the prisoners were self-representing,
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or planning to be. A project such as Streetlaw is vital to help them do this because it could be one of their only sources of legal information. From the other side of the Project, it is an ideal way for us to experience the kind of research and application of the law that we will have to do in practice. We have had to read into areas of criminal law that are not covered on our course and have begun to learn about the practical procedures that make the concepts we learn function. Yet, beyond its educational value, it is both fascinating and enjoyable for us. It is hard to form a realistic impression of prison life when you have never experienced it, or known anyone who has. Preconceptions are easy to form; Streetlaw Prisons is a way to discard them in favour of genuine experiences. Olivia Gregory, Full Time GDL, Leeds
Pro Bono & Access Justice
Innocence projects Fighting for victims of miscarriage of justice
The BPP Innocence Project is a branch of the Innocence Network UK; a project ‘educating to overturn and prevent the wrongful conviction of innocent people’. Innocence projects across the UK, with the help of law students and volunteer legal professionals, undertake investigations into alleged wrongful convictions with a view to eventually having those convictions overturned. The cases that come to the Innocence Project are serious cases of murder, rape and sexual assault, therefore the accused has been given an indeterminate sentence and as such has found himself in an unenviable Catch-22 situation; he may well be eligile for parole, however, unless he admits guilt he will never be released, but he does not want to admit guilt; he wants his innocence to be recognised. These cases have exhausted the appeals process and with nowhere left to turn, the Innocence Project works hard to have them reviewed by the Criminal Cases Review Commission. This is the statutory body tasked with investigating suspected miscarriages of justice with the potential to refer such cases back to the Court of Appeal, by researching the case and identifying any potential new grounds for appeal.
This year, the BPP Innocence Project has also run a series of exciting events to help students understand the importance of the project and the good it can do for long-term prisoners maintaining their innocence. Our opening event saw Sue Caddick, the sister of Eddie Gilfoyle, speak on the case of her brother. Mr Gilfoyle was convicted of murdering his wife in 1992. He spent 18 years in prison before being released on parole in 2010; however he has yet to see his conviction overturned. Eddie’s case was mishandled from the very beginning, with poor crime-scene management, weak investigation and even key evidence – diaries indicating his wife’s depression and potential suicidal nature – being suppressed. This case, whilst not itself handled by the Innocence Project, explicitly illustrates how a wrongful conviction can so easily occur, signifying the importance of the work of the Innocence Project for people like Eddie. Melissa Ritchie, Full Time LPC, Holborn
BPP’s Innocence Project in Holborn currently manages nine cases. Teams of students undertake casework with the supervision of solicitors and barristers, who kindly oversee the case. It is only through the dedication, commitment and hard work of students that these cases can be investigated at all, making it a truly worthwhile project. Students this year have been putting together chronologies of events, sorting through case files of evidence, witness statements and attendance notes, working with counsel, sending their client updates on the progress of the case and even visiting the client in prison, with a view to finding a new source of interest; an avenue that has not yet been followed. The students who are working on the project gain a real and invaluable insight into life as a lawyer, the investigations, client care, and responsibility of managing what is often an overwhelming amount of material. The clients are relying on this project, so not only is student involvement a genuinely good experience in preparing for practice, but it is also the true essence of pro bono; ‘doing good’.
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Pro Bono & Access Justice
Free to insult Section 57 of the Crime and Courts Act 2013,1 which received royal assent on 25 April 2013, removes ‘insulting’ from section 5 of the Public Order Act 1986.2 Under Section 5, it is an offence to use ‘threatening, abusive or insulting words or behaviour’ or to display ‘any writing, sign, or other visible representation which is threatening, abusive or insulting’ within the hearing or sight of a person ‘likely to be caused harassment, alarm or distress thereby’. Actual harassment, alarm or distress need not be caused. No offence is committed if the perpetrator had no reason to believe that there was any person within sight or hearing who was likely to be caused harassment, alarm or distress or if the perpetrator is inside a dwelling with no reason to believe that the words or representation would be heard or seen outside that dwelling. At the end of last year, the House of Lords voted to amend section 5 to remove ‘insulting’. Theresa May said that whilst the government opposed the reform, it was ‘not minded’ to challenge the removal of ‘insulting’.3 Her reluctant acceptance of the decriminalisation of insulting words or representations was influenced by a letter written by Keir Starmer QC, the Director of Public Prosecutions, in which he said he was unable to identify a single case in which the alleged behaviour leading to conviction could not be characterised as abusive as well as insulting. In light of Keir Starmer’s statement, which renders the inclusion of ‘insulting’ redundant for the purposes of prosecution, it is difficult to see why Theresa May so reluctantly expressed the government’s acceptance of the removal of ‘insulting’ from section 5. Arguments that have been advanced in favour of maintaining the law include the difficulty for courts in deciding whether words are abusive (attracting criminal sanction) or merely insulting, and the operational confusion that constant changes to the Public Order Act engender. The former is a nonsense. It is well within the competency of the courts to determine what is abusive and what is insulting; in applying the law the courts regularly have to address semantic questions. The latter is a more credible argument, but does not in any way justify the maintenance of a law that is at best useless and at worst confers arbitrary power on the police. The following people were arrested using section 5: • A student who asked a police officer if he realised his horse was gay; • A protester outside a Church of Scientology holding a placard with the word ‘cult’ written on it; • A man, who while being searched by a police officer, said: ‘F*ck this man’, ‘you won’t find f*ck all’ and ‘I’ve already f*cking told you so’;
boredom to language which they normally encounter while carrying out their duties. The final two cases were successfully prosecuted (although the preacher in the latter case died before his appeal was heard).5 The final two cases express views which are likely to be considered abhorrent by many people. But abhorrence and insult are not accurate indicators of criminality. The problem with criminalising insult is that a person can be insulted by any words or actions they so choose, rendering the law dangerously wide in application; almost any statement could be potentially criminal. The solution to that is to criminalise only insult that is likely to cause harassment, alarm or distress. This involves a judgement and imputes a standard of reasonableness into the law – only that which it is reasonable to be insulted by should be criminal. But that is even more dangerous as it risks criminalising any opinion that is insulting to the majority, suppressing dissent and minority opinions. Section 5 was a law which gave the police an arbitrary power of arrest against any subject they found annoying or disrespectful, such as the student who called a police horse ‘gay’.6 Its reform is very welcome. The freedom of expression as protected by Article 10 of the European Convention on Human Rights and Fundamental Freedoms is qualified to include restrictions necessary in a democracy. The right to insult and to offend, however, is itself necessary to democracy. Freedom of expression applies to ideas that ‘offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.7 Insulting views, however abhorrent, should not be repressed. As Adam Wagner points out, the next step is to remove ‘grossly offensive’ from s.127 of the Communications Act 2003.8 David Kay Full Time LPC, Manchester An extended version of this article originally appeared on the BPP Human Rights Blog, which can be found at bpphumanrightsunit.wordpress.com David Kay is a LPC Student at BPP Manchester and also Student Director of the BPP Human Rights Unit 1
Harvey v DPP EWHC B1, http://www.bailii.org/ew/cases/EWHC/Admin/2011/B1.html
Norwood v DPP  EWHC 1564, http://www.bailii.org/cgibin/markup.cgi?doc=/ew/cases/EWHC/Admin/2003/1564.html and Hammond v DPP  EWHC 69, http://www.bailii.org/ew/cases/EWHC/Admin/2004/69.html
• A man who placed a poster in his window containing the words: ‘Islam out of Britain’; • A preacher holding a placard bearing the words: ‘Stop Immorality’, ‘Stop Homosexuality’ and ‘Stop Lesbianism’. In the first two cases, charges were dropped before they came to court. In the third case,4 the judge found it unlikely that the police who were sworn at were likely to be harassed, alarmed or distressed; it was more probable that their reaction was one of
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Handyside v UK (1976) 1 EHRR 737, http://www.worldlii.org/eu/cases/ECHR/1976/5.html
WHY THE AL-SKEINI PRINCIPLE STILL MAY FAIL: International
It may be pessimistic, or realistic depending on one’s world-view, but the interventionist appetite that has ebbed and flowed throughout history may again be on the turn. From the proactive Responsibility to Protect doctrine to the troops-belong-at-home post-Iraq War era, political appetites for conflict, just or otherwise, are slaves to those of their electorates. North Korea has the potential to be the usual legacy-seeking US Presidential second-term foreign policy move, whilst it has also of late become increasingly difficult to ignore the rising death toll in Syria. With this in mind, did we learn anything from the cases brought during the imprudently titled ‘War on Terror’? Conflict will happen with or without legal approval; this is not a new lesson, though it still renders many aghast. This does not, however, prohibit the human rights community from addressing the operability of court decisions in the sphere in which they apply, rather than merely waiting for the next conflict to spill out bodies and breaches. On the 7th July 2011 the European Court of Human Rights delivered its judgement on the Case of Al-Skeini and Others v The United Kingdom ruling, inter alia, that the European Convention on Human Rights is extraterritorially applicable when states party to its provisions have ‘effective control’ whilst occupying another state not party to the Convention, nor within the espace juridique of Europe. It is difficult to match for ground-breaking effect this change in the law of the traditionally globally active nations of Europe. It has rightfully been championed as a huge step forward for human rights and international humanitarian law, but also for potentially constraining aggressive foreign policy action. This premature naivety of the machinations of foreign policy forgets that the principle has yet to be tested in the fogged space from whence it came: A multinational aggressive action containing the militaries of Europe…and those of the US.
Historical Decisions Can’t End on the Court Steps
The unaddressed issue at large is that combined joint operations such as those that may or may not arise in Syria or North Korea are exceedingly organised, both geographically and hierarchically; with tens of thousands of troops, tanks and planes moving very quickly in one big direction made up of lots of small directions in an assortment of languages, this should be no surprise. Battlespaces are three -dimensional and are strictly allocated into Areas Of Responsibility that are individually under the command of one of the nations involved. When major cities are held, be it Berlin in the 1940s or Kabul this century, zones are carved up for ease of administration and transition due to the obvious complexities arising from densely populated areas. To juxtapose the individual scenarios that equated to the Al-Skeini claim, involving, inter alia, loss of life during the effective control by UK forces of their AOR in Basra, with the potential situation in Damascus or Pyongyang, a citizen would see European forces control one part of their city, whilst another sector would likely find itself under US control. The net effect would be ECHR rights afforded to one half of the city whilst the other is left wanting. The legal principle is open to abuse by both occupier and those occupied alike. Insurgents launching operations and/or projectiles from ECHR safe-zones; military commanders ensuring they only engage in US AORs; and/or legally aware citizens migrating from AOR to AOR in order to afford themselves and their families the rights they deserve under the ECHR. Alternatively, to quote the song first released by James Carr somewhat appropriately during the year of the Vietnam War’s Tet Offensive: ‘At the dark end of the street, that’s where we always meet.’ The high-octane, all-absorbing pressures of conflict and counter-insurgency are not the times to be addressing these matters. In keeping with the modern obsession with sporting analogies, after a football match a post-game briefing will isolate key failings of individuals, much like the courts have done during the period in question. However the crucial implementation of the findings of the coach or court is where sport and human rights law diverge. The ‘human rights coaching staff’ must embrace their responsibilities for the implementation of principles such as Al-Skeini. This cannot end on the steps of the court with two Agincourt archers’ fingers held victoriously aloft towards their opposing military, but with the meeting and greeting of experts looking to harmoniously implement the evolution sparked by the judgment. The distinctly counterproductive cries of ‘well don’t invade then’ seek only to fail those that require our assistance in protecting and representing their human rights. Efforts predicting impending shortfalls should be addressed with progression and not blind protest. Planning for avoiding loss of life is easier than preventing war. One of the numerous military maxims is ‘train hard; fight easy’. They spend their down-time preparing for every eventuality. The human rights community should do the same so as to assist and advise militaries in readiness for the historically inevitable. Ben Munnings, International Editor Full Time GDL, Leeds
Legal InCite – BPP Law School’s Student Publication 25
CASE ANALYSIS: A review of illustrative cases into Piratical Seizure and Total Loss "Damn my blood, I am sorry they won't let you have your sloop again, for I scorn to do anyone a mischief, when it is not for my advantage" – ‘Black Sam’ Bellamy to a Captain Beer, apologising after his pirates had voted to sink Beer's ship after looting it.1 The case of Masefield AG v Amlin Corporate Member Ltd “The Bunga Melati Dua” has added to our understanding of whether and when piratical seizure constitutes an actual total loss. However, there is no set rule in these cases and the courts have always dealt with the facts of the case at hand. The facts and ruling in the Bunga Melati Dua are entirely consistent with the previous cases dealing with capture and piracy as we shall see by examining a couple of them before addressing the more recent case.
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International There are enough cases to get a grasp of what the courts will consider total loss in the event of piracy. The Bunga Melati Dua is the most recent case and gives the clearest idea of the question. However, as always, one case alone is not enough to understand all the facets of the law surrounding loss due to piracy and one must also bear in mind a few earlier decisions such as those reached in Goss v Withers which clarifies some issues regarding the capture of a ship by the enemy, and the case of Dean v Hornby that was discussed at length in The Bunga Melati Dua which does deal precisely with piracy and total loss. Before looking at the facts of some cases it is essential to define what constitutes an Actual Total Loss (ATL) and a Constructive Total Loss (CTL) as found in the Maritime Insurance Act 1906. The relevant section for an ATL is s. 57: (1) Where the subject-matter insured is destroyed, or so damaged as to cease to be a thing of the kind insured, or where the assured is irretrievably deprived thereof, there is an actual total loss. (2) In the case of an actual total loss no notice of abandonment need be given. A CTL is defined in s. 60: (1) Subject to any express provision in the policy, there is a constructive total loss where the subject-matter insured is reasonably abandoned on account of its actual total loss appearing to be unavoidable, or because it could not be preserved from actual total loss without an expenditure which would exceed its value when the expenditure had been incurred. It is in the first leg of the claimant’s case that the question of seizure creating immediate ATL is addressed and where the authorities say the most. The case that the claimant relied on was Dean v Hornby, but we may look to earlier sources to establish what would constitute a total loss in the case of a capture. It is always important to remember when dealing with these early cases that the distinction between ATL and CTL did not yet exist. One must therefore rely on the precise wording of the judges to establish which one may have been meant. An early mention of what constitutes capture is found in Grotius who wrote that a capture takes place when there is no just grounds of hope of recovering the ship; "Tunc enim desperari incipit recuperatio, &c”, we find wording that is reminiscent of the ATL irretrievable loss test. This was applied in the following case. In the case of Goss v Withers, the David and Rebecca was captured by the French on the 23rd of December 1756, the ship remained in the hands of the French for eight days after which it was retaken by a British privateer and brought into Milford-Haven on the 18th of January. Immediate notice of abandonment was given by the insured.2 Although the case does not deal directly with piratical seizure it does address the issue of total loss in a capture and recapture situation. The court ruled that the capture did indeed constitute a total loss, and in wording more akin to principles of CTL than ATL the judge said: “It might as reasonably be argued, that if a ship sunk was weighed up again at a great expence [sic], the crew having perished, the insured could not abandon, nor the insurer be liable, because the body of the ship was saved.” 3 Dean v Hornby is a pirate case and is quite complex because of the number of times the ship changed hands. The Eliza Cornish was sailing from Valparaiso to Liverpool. On the 1st of December 1851 she set in to Punta Arenas where she was seized by a group of Chilean insurgents. The master was shot, the crew imprisoned and the cargo consisting of guano and
20,000 sterling was part destroyed part plundered. On the 2nd of January 1852 the Eliza Cornish got under way with cannon and a piratical flag. She was rescued by Her Majesty’s steamship Virago, sent for the purpose by the Chilean government, and her valuable cargo was still in her hold. She was sailed back to Valparaiso on the 23rd of February 1852. On the 10th of March she left Valparaiso for Liverpool under the control a commissioned officer, one Charles Bowden. She suffered damage on the way and had to stop for repairs. She was damaged again and docked in Fayal for more repairs at which point Charles Bowden sold her to another party. She finally was returned to England. The court ruled that there was indeed total loss from the point of capture by the insurgents.4
according to the facts, and although Dean v Hornby was relied on by the Claimant, it would have been put to better use by the Defendant. Moreover, the amount of the ransom was small in relation to the cargo and as such would not even satisfy the CTL test. The particular piratical operations in the Gulf of Eden are well planned (the sister ship of the Bunga Melati Dua was seized ten days later), and ransom demands are kept at levels that are still affordable by the industry (a ‘package deal’ ransom negotiated at $4 million for both when the cargo value of one alone was $80 million)8. Rix LJ in the Bunga Melati Dua called this an “unexpressed complicity” between the pirates and the world of business9. Black Sam understood this, but his crew obviously did not.
Campbell CJ said: “In December 1851 she is taken by pirates. Then, in fact, a total loss has occurred […] once there has been a total loss by capture, that is construed to be a permanent total loss unless something afterwards occurs by which the assured either has the possession restored, or has the means of obtaining such restoration.”5 Although the words “permanent total loss” bring to mind s.57 of the Maritime Insurance Act 1906, the rest of the judgement is much more along the lines of s.60, particularly in light of the “means of obtaining such restoration” which were indeed present in the case of the Bunga Melati Dua.
The facts in the case of the Bunga Melati Dua are the following. On the 19th of August 2008 the Bunga Melati Dua carrying a shipment of bio-diesel from Malaysia to Rotterdam was seized by Somali pirates off the Gulf of Aden. The ship along with its crew was taken into Somali waters. The defendant in the case was the insurer who had a policy covering loss by piracy as well as by theft. Not long after the capture, negotiations between the owners of the ship (MISC) and the pirates began for the release of the ship in return for the payment of a ransom. A month after the vessel had been seized and during ongoing negotiations, the Claimant (owner of the bio-diesel shipment) served a notice of abandonment on the Defendant. The notice was declined, but both parties set out that proceedings had begun on the 18th September 2008. About 10 days later, MISC paid a ransom to the pirates enabling the release of the ship and her crew shortly thereafter. The Bunga Melati Dua reached Rotterdam on the 26th October where her cargo was discharged.
Dean v. Hornby (1854) 118 E.R. 1108 Goss v Withers (1758) 96 ER 1198 Grotius 1. 3, c. 6, pa. 814, De Jure Belli & Pacis Masefield Ag v Amlin Corporate Member Ltd “The Bunga Melati Dua”  1 W.L.R. 2012 Masefield Ag v Amlin Corporate Member Ltd “The Bunga Melati Dua  1 C.L.C. 318 Aaron Menuhin, Part Time GDL, Distance Learning 1 Defoe, Daniel (Captain Charles Johnson). A General History of the Pyrates. Edited by Manuel Schonhorn. Mineola: Dover Publications, 1972/1999 2 Ross v Withers p 512 3 p.520 4 Dean v Hornby, pp 1109-1110 5 Dean v Hornby, p111251 Masefield v Amlin, CA, paragraph 2 6 Masefield v Amlin, CA, paragraph 3 7 Masefield v Amlin, QB, p327 8 Masefield v Amlin, CA, paragraph 11 9 Masefield v Amlin, CA, paragraph 71
The Claimant’s primary case that was re-examined at the Court of Appeal was that, at the time of the piratical seizure, they had suffered an actual total loss (ATL) according to s. 57 (1) of the Marine Insurance Act 1906, the claim for CTL as heard at first instance was dropped at the Court of Appeal. The Claimant relied on two principles to support the claim for an ATL51. The first was that the seizure by pirates created an immediate ATL, and secondly, the payment of a ransom could not be a relevant legitimate reason for calculating the possibilities of recovery. The Defendant argued that the statutory test for ATL (s 51 of the Marine Insurance Act 1906) was that one was ‘irretrievably deprived’6. The cargo, however, was never in such a condition because there was a good chance the negotiations would enable the return of the crew and ship on payment of a ransom. The successful return, as pointed out to Judge Reed at first instance by Mr Wilkes a piracy expert, was commonplace7. The payment of a ransom was neither illegal nor against public policy and so could very well be regarded as a relevant way of retrieving the cargo. Steel J dismissed the claim at first instance and the Court of Appeal ( Rix LJ, Moore-Bick LJ, Patten LJ) dismissed the appeal. To conclude, the defining factor in the Bunga Melati Dua was that the means of retrieving the ship and its cargo were present at all times. The court ruled
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International At 16:07, it was clear to Terry Collins, director of the Southern Ohio Correctional Facility who was presiding over the execution, that his team would be unable to perform the execution. He informed the Governor of Ohio, Ted Strickland. Strickland immediately granted Broom a one week reprieve so the Ohio Department of Corrections could advise him how best to proceed. Broom became only the second person in the modern era of capital punishment in the United States of America to survive an execution. Needless to say, during the one week reprieve, Broom’s legal team obtained a preliminary injunction from the United States District Court to stop further attempts at executing him until a full appeal could be heard. On 18 September 2009, Broom filed a petition with the Ohio Supreme Court seeking permanent injunctive relief to stop the state of Ohio from ever attempting to execute him again. The petition, which the Ohio Supreme Court are yet to respond to, makes two important human rights arguments which I will attempt to explore further. Broom’s first argument is that further attempts at executing him would result in him being punished for the same crime twice, infringing the double jeopardy rule contained in the Fifth Amendment to the United States Constitution. It is this author’s humble opinion that this is unlikely to succeed. When Broom was sentenced, his punishment for his crime was death. It is selfevident that Broom’s death has not yet happened. It is therefore difficult to understand the reasoning behind his legal team’s assertion that another attempt at execution would go against the Fifth Amendment, as he has not yet received the punishment for his crime. It appears that Broom’s argument hinges on a decision by the US Supreme Court in Baze v Rees, which suggested that multiple failed attempts at execution could amount to an infringement of the double jeopardy rule. No doubt Broom will argue that each attempt at finding a vein amounts to an attempt at the execution, however it is much more likely that the court will view the whole procedure as a single attempt, thus meaning that the decision in Baze v Rees could not be invoked. A further problem with this rationale comes from the fact that it is not uncommon for executions to be stayed by the courts after the execution process has started. On occasions, intravenous lines have already been inserted into the inmates arms before the court has stepped in to temporarily halt the execution. The courts have not accepted that starting the procedure again invokes the double jeopardy rule and I can see no reason why they wouldn’t come to a similar conclusion in this case.
What next for Romell Broom? On 15 September 2009, Romell Broom woke to what he thought was the last day of his life. He was scheduled to be executed by lethal injection at 10:00 by the U.S. state of Ohio. His crime? The 1984 abduction and murder of 14 year old Tryna Middleton. At 09:30, the 6th U.S. Circuit Court of Appeal temporarily stayed his execution to consider a last minute appeal. This was denied at 12:48 and the execution rescheduled to commence at 14:00. The execution team entered Broom’s cell and began trying to find a suitable vein for the intravenous line that would carry the cocktail of three drugs into his body and ultimately cause his death (sodium pentathol to anaesthetise him, pancuronium bromide to paralyse him and stop him breathing and potassium chloride to stop his heart). Despite trying for over two hours and with Broom’s efforts to help them find a vein, they were unable to insert the intravenous line into Broom’s body. On the one occasion that they did find a vein, it immediately collapsed as saline solution was pumped through it.
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Broom’s second and more substantive argument is that a further attempt at executing him would go against the Eighth Amendment to the United States Constitution, namely, that it would be a cruel and unusual punishment. This is indeed a strong line of argument. Broom was pierced at least 18 times by needles in an attempt to find a suitable vein. This left him shaken, bruised and in a great deal of pain. Further attempts by the state to execute him would no doubt lead to further pain being suffered. There is also a great deal of uncertainty about whether or not a vein could actually be found on a second attempt. Broom’s veins are exactly the same as they were at the time of his first execution attempt. Further attempts at finding a vein would almost certainly cross the threshold of cruel and unusual punishment and therefore Broom has a good chance of succeeding using this line of argument. In response to the failed execution, the state of Ohio have made two changes to their execution procedure in order to try and prevent the same problems happening again. Firstly, they have changed from a three drug procedure as discussed above, to a single drug procedure (An overdose of pentobarbital is now used, which causes anaesthesia followed by cardiac arrest). The second change that they have made is that, should they fail to insert an intravenous line, an intramuscular injection (which is much easier to insert) would be used instead. There are a number of issues associated with this however. It is widely accepted that a greater amount of pain is associated with an intramuscular injection rather than one done intravenously. There is a much greater chance of the needle hitting a pain receptor and the injected drug can cause a severe reaction in the area. A more concerning issue however is the fact that rather than being injected straight into the blood stream, the drug must first pass through the muscle. This leads to a much longer death. For both these reasons, it is difficult to accept Ohio’s argument that the changes that they have made to their execution procedure will mean that a future attempt at executing Broom would be free from breaching the Eighth Amendment. Given all of the above, Broom would be right in thinking that his life now hangs in the balance. The only thing that he can be sure of is that years of legal argument will ensue in the courts to determine whether he lives or dies. The judges in the case clearly have some difficult decisions to make. Ryan Postlethwaite, Full Time LPC, Manchester
A version of this article originally appeared on the BPP Human Rights Blog, which can be found at bpphumanrightsunit.wordpress.com
Alumni I was asked by Legal InCite to create and edit the alumni section of the publication. I instantly thought of the 3 inspirational people that have been instrumental in building the foundations of my legal career. Firstly, Britain's most successful individual Paralympic swimmer ever with nine gold medals, Chris Holmes MBE, Mr BPP a person who has gone through so much but is still ‘constantly moving, constantly learning, and constantly finding new challenges’ in his life. Secondly, Leyla Jackson, my first year Contract Law Lecturer who has always been an email away when I
needed advice and always encouraged me to become the best of my abilities. Lastly, Charlotte Nasey my mentor who had been paired with me through the BPP Law School Access to Practice Mentoring Scheme… what a wakeup call, not only did this scheme enable me to see the gaps I had in my CV but it helped me gain confidence and the drive to achieve that goal of ultimately becoming a solicitor. Shahid Ajmal, Part Time LPC, Leeds, Alumni Editor
CHRIS HOLMES MBE: “Make the connections, Make the contacts and Make it happen”. I’m part of the BPP alumni and since leaving I did my training at Ashurst LLP and qualified and spent a number of happy years there. Then I joined the London Organising Committee of the Olympic and Paralympic Games (LOCOG) for London 2012. What drives you to success? For me, I think success is all about having a really clear goal. It starts as a dream and it is when you wake up in the morning and put in to practice and make it a goal. Work out where you are right now and be really honest about that, work out where that point is that you are trying to get to. Then the really key ‘bit’, put a really clear plan in place to get from that point to achieve that goal and for me that is success. What does inspiration mean to you? Inspiration, I think comes in so many different forms and you can come across it in almost anything that you are doing at any time in the day. For me it is something that springs out, somebody has achieved or has done something which is so extraordinary, that is really noteworthy. You can often have people come from difficult circumstances and difficult backgrounds. And people from that kind of background aren’t supposed to be able to break free and to really nail something. I think it is truly inspirational when somebody has that kind of story, that challenge, that sense of going from that point to somewhere, where nobody expected and nobody thought they would get near that. And they achieved and often exceeded it. What does the word challenge mean to you? For me, challenge is all about feeling the right level of discomfort. Pushing yourself, putting yourself in a place where it doesn’t feel easy, it doesn’t feel comfortable. But you are at the edge of something, you know what you are trying to achieve, you are putting yourself in a place, giving yourself the best opportunity to achieve that. Anything that is worth something has to have that real key challenge, right at the core of it. What qualities do you think you have that make you successful? In terms of my own success, I truly feel incredibly lucky, incredibly fortunate to have had fantastic people around me; friends, family, swimming coaches, physiotherapists, a whole series of people who helped me and were part of my team to achieve in sport. The teams in the work place helped us achieve what we were trying to in the law. Then the biggest team of all that I was involved with at LOCOG to achieve the Olympic and Paralympic games. I think, for me, I was certainly lucky to have been born with such a drive, such a determination, such a focus to think about what was possible to really go for things, put plans in place, get people around me, draw people together and hopefully achieve really quality sustainable results. What is your greatest achievement? In terms of achievement, I’ve been so lucky to work in incredible environments with incredible people. To go to great schools and a fantastic university and be part of the student community here at BPP. Then to go into a fantastic City law firm, alongside that to have swam for Great Britain and to represent your country is such a privilege, such an honour to put that tracksuit on and then to stand on that rostrum where they put the gold medal around your neck and the national anthem is playing and the crowd is standing to sing your nations national anthem. That is so incredible. But above all that, being lucky enough to lead London’s planning and delivery of last summer’s Paralympic games, without question is my greatest achievement because we were able to take the Paralympic Games and make it a global event, to sell all the
tickets for the first time, to get all of the sponsors involved with the Paralympic as well as the Olympics. And to put something on, which was such a special, special moment in time, and to connect the whole nation with Paralympians, Paralympic sport and Paralympic Games. What advice can you give someone ready to enter the workforce about what skills employers are looking for? Many commentators and much of the chat is all about, how difficult it is out there, the gloom and the doom, the triple-dip recession, the economics. Without question, it is a very tricky labour market out there at the moment. But the fundamental truth remains the same. If you have got the best qualifications you could have had and if you have got the best training you can have that gives you such a fantastic base to feel confident to go out there to the labour market and to be a success. The key is to really feel that confidence based on solid evidence of stuff you have done and on top of that confidence, to have the clarity of what you want to do and how you are going to go about it achieving it. So if you want a contract at a City law firm, identify the firms that you think best fit you, that will work the best for you: ‘make the connections, make the contacts and make it happen.’ Putting all of that together, that confidence, that clarity and making that into a connection and making that into a really successful career. What advice would you like to give to current BPP students? Certainly, I remember my time at BPP incredibly fondly; it was a fantastic couple of years. I think it is always slightly dangerous to give any advice to anybody but I would say really enjoy your time at BPP, it is such a great environment to be in and there is so much support and it is a lovely place to study. As most of the students would have already found out, there are some fantastic bars not very far at all from the various buildings and it is that combination of making great friends while you are here and having some great social time and putting that alongside working really hard in a really focused way to give yourself the best qualifications to enter the labour market and to really blast your career off. What is next for you? It’s a really interesting time, coming back off the Games. It was just such a phenomenal project and unique project to have been involved with. Everything focused towards those special moments everybody saw, either if they were lucky enough to have a ticket in the stadium, at the swimming pool or at the velodrome or on their TV sets. It was an incredible summer. Everything that I am trying to get involved in now, is taking all of that Olympic and Paralympic magic and putting it into a new context and putting it into various projects and really moving forward and making sure I am constantly moving, constantly learning, and constantly finding new challenges. If I can get all of that stuff together, I think I will be pretty happy and to carry into 2013 and not feel sadness that 2012 is no longer with us. Chris Holmes MBE This article is a transcript of a BPP video interview that Chris Holmes MBE has kindly agreed to. The full video interview is also available on YouTube and also on www.bppstudents.com.
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“The Journey from student to solicitor” In comparison with some of the other trainees in my intake, my legal journey has been relatively straightforward so far. A straight ‘A’ student, I decided early on I wanted to be a solicitor and I was determined to make it happen. I was lucky enough to obtain a few weeks of legal work experience before starting my European Law degree at Warwick University. I started the laborious task of applying for training contracts in the penultimate year of my degree; I was on my year abroad in Bordeaux and loving the French, laid back lifestyle. The training contract applications and interviews brought me back down to earth with a bump. Thirty applications, six interviews and three vacation schemes later I had a training contract offer at the well-renowned, Yorkshire based firm Gordons. I started here in September 2011 with fresh-faced enthusiasm, after completing my LPC at Leeds BPP Law School. Eighteen months down the line my journey has taken me through the Personal Injury, Commercial Litigation and Employment departments. I’ve worked in the Bradford and Leeds office and have dealt with everything from a road traffic accident to complicated arguments on sex discrimination. Life as a trainee is action-packed, particularly when you take on the role of Secretary for the Junior Lawyers Division on top of your legal work and inevitable busy social life. Without a doubt, a big development occurs during your training contract. I’ve certainly grown in confidence and honed those all-important drafting skills. You become accustomed to dealing with clients both over the phone and face-to-face and may even get the chance to try your hand at advocacy in front of a real judge.
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So now all that’s left to do is secure that crucial NQ position and my journey will be complete… or will it? I’m sure I will be looking for the next step and wanting to progress to associate or may be even partner one day. The legal journey is what you make of it but ultimately law can be a rewarding career path. There are many different routes into law and I am surrounded by older trainees who have been on amazing travelling adventures or who have years of paralegal experience under their belt. Two years ago Gordons launched its apprenticeship programme, giving 18 year old students the exciting opportunity to work their way up through the firm and become legal executives. Law is no longer a straight line route for those whose parents are judges or senior solicitors. Whatever your background I encourage you to consider your legal career path and think that one day it could be you writing the article about your journey through the profession. The journey can be long and arduous and is definitely not for the faint-hearted. For those of you who have the necessary drive and ambition, work hard and you will succeed. Charlotte Nasey, Trainee Solicitor, Gordons LLP
“Be Flexible - Live your dream!”
I was honoured to be asked to feature in the new BPP alumni section of Legal InCite but my first thought was one of panic – why on earth would people want to read about me and what advice or inspiration could I possibly offer? I graduated from BPP Law School Leeds with a distinction on my Legal Practice Course in 2006. I always anticipated becoming a solicitor in Family law practice and the BPP careers department were excellent in assisting with this vision. I applied for and attended interviews for a number of training contract positions but, as we all know, training contracts are like gold dust and I was getting fairly demoralised with the process. At around the same time, a Law Lecturer position became available at my old university. It was never something that I had considered doing but I thought why not, no harm in applying. To my shock, I was successful at interview, first for a part time lecturing position but shortly after this was increased to a full time one. I will be forever grateful to the interview panel for recognising in me, an ability I did not realise that I had. However, getting the job was one thing, then I actually had to teach! I don’t mind sharing that the first time in the classroom was pretty intimidating. My first class (a Contract Law lecture), I was standing in-front of about eighty people of a wide age range and background, most of whom were older than me, but it was like performing on stage, I loved it. I loved entertaining and trying to make the law interesting for the students. I went on to complete my post-graduate teaching qualification. In late 2009, I was faced with a dilemma when I was contacted out of the blue by one of the firms that I had had a training contract interview with years earlier. They finally had a vacancy, they had remembered me from all of those years ago and they wanted me! After all of this time, and having given up on ever actually qualifying as a solicitor, I was being offered articles in exactly the field and firm that I had been so desperate to work for. Yet at the same time, I absolutely loved my job and I loved teaching. It was one of the most difficult decisions that I have had to make but in the end, I turned down the training contract because my instincts told me that if something is not broken, do not try to fix it. It just was not the right time for me.
A few months later a friend of mine pointed out an advert online for a Law Lecturer position in the Cayman Islands. I laughed and joked that maybe the interview would be in the Caribbean, so I might get a free holiday out of it. I actually applied for the position so that I would have a funny story to tell, but I was successful! And so, in 2010 I was faced with the second most difficult decision of my life, to quit my job and move to a Caribbean island that I had never visited, to become a tax exile and get a tan! It seems like a no brainer but I was someone who had never lived further than 30 miles from home before! How could I turn it down? This time my instincts told me that it was the right thing to do. So I put my two dogs onto a plane, rented out my house and moved. Almost three years later, I am still a lecturer at the Cayman Islands Law School (and an Associate Lecturer of the University of Liverpool), and I have never looked back. My life in the Caribbean could not be more different from that in the UK. What do I like the most about it? The pace of life is easy going, the people are amazing, my students are diverse and interesting and they teach me new things every day. I love soca music. I love being part of, and working within, a small island community. Because Cayman is so small, it is easy to actually make a difference both in my professional and personal life (I am also the General Secretary for the Cayman Islands Boxing Association in my spare time), and that gives me a great feeling of satisfaction. Oh, and the weather is a little better than Yorkshire! So coming back to my initial question, what inspiration can my story offer to current law students? I think that my advice is simple, do not be fixated on one goal, be flexible. A law degree is an extremely valuable degree to employers in a wide variety of disciplines. Doing a law degree does not necessarily have to result in becoming a lawyer. It gives rise to a number of other possibilities, be open to them and, most importantly of all, follow your instincts. No two people are the same and only you know what is the right path for you. Live your dream! Leyla Jackson, Lecturer, Cayman Islands Law School
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BLOGS Behind the scenes of the Supreme Court Members of the BPP Leeds Lord Denning Society recently accepted an invitation by the Deputy President of the Supreme Court, Lord Hope of Craighead to visit the Supreme Court. The day was organised by Denning Society Founder and President and Legal InCite Senior Editor, Shahban Aziz and involved a personal tour of the Supreme Court by the Director of Communications, sitting in on two cases, and a personal question and answer session with Lord Hope. Readers of the Legal InCite will no doubt remember Lord Hope’s extended interview that was featured in the last issue and is available to read on www.legalincite.co.uk. The personal tour had all students deeply engaged as students were provided with the opportunity of learning insightful facts regarding the history of the building, the thoughtful reasoning behind the design of the emblems in the court rooms, which in turn even led to further discussions as to the carpet choices. Moreover, the artwork in the Supreme Court is one which
fascinated students, especially knowing that some were valued at over a million pounds. As the Supreme Court is the only British court where hearings are televised live, students were fortunate to experience the full atmosphere of two high profile cases, whilst watching cases judged by Baroness Hale, Lord Sumption and Lord Neuberger. Students and tutors were fascinated with the sheer impact that the Supreme Court has had on the legal system and were further excited to meet Lord Hope. Lord Hope has been involved in a number of pinnacle legal cases including Stack v Dowden (family property post-divorce), The Achilleas (remoteness of loss), R v Woollin (murder and subjective intent) and Jackson v Attorney General (fox hunting ban). The question and answer session allowed the Denning Society members to gain an insight into Lord Hope’s creative and inspiring legal mind with personal reflections on the impact of technology in the court room and
the major impact which the Supreme Court has had upon the legal system. Furthermore, society members were presented with light humoured personal anecdotes from his previous cases. The trip was a major success and the Denning Society members are already planning their next trip. For further details or to join the society, please email
Varun Devesher, Full Time GDL, Leeds, Senior Member of the Executive Committee and National Chairman, Lord Denning Society Above: Deputy President of the Supreme Court, The Right Honourable, The Lord Hope of Craighead.
Destined to be a lawyer Law has always been something that I have wanted to pursue. I was lucky enough to spend a few days at a law firm when I was 16, and ever since then I have aimed to work somewhere that offers that same level of energy and drive. I believe that this kind of atmosphere can only be experienced at a law firm as, although it is technically an office job, it entails so much more than just sitting at a computer all day. It is the kind of career where you are constantly meeting new people, where you have to think on your feet if something doesn't go to plan, and where sometimes there is the possibility to be flown halfway across the world to secure a deal at the last minute.
It is opportunities and challenges like these that have encouraged me to pursue my interest, leading me to get involved with activities such as the Law 4 Non Law society at university, where I am the Newsletter Editor and Social Media Officer of the Leeds branch. I believe that societies like this are vital in attracting students from a non-law background as it can be incredibly difficult to know what to do at what stage, and to find the information you need when you do not have the help of fully informed tutors like undergraduate law students have. I have also been encouraged to pursue law through a number of events that I have attended, such
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as the BPP Open Evening a few months ago. They gave a real insight into what the law conversion course, the GDL would involve as they included details of how the course would be laid out, the amount of work required (challenging but hopefully manageable!), and even a mock lecture. The enthusiasm from the tutors was really encouraging, as was talking to some of the current students who really seemed to both enjoy the course and the overall student experience. Another important aspect that I feel really sets apart BPP from many other law schools are the resources that are put into helping their students find a career.
We were told that there will be help with applications, mock interviews and even a guaranteed work experience scheme at BPP Leeds something which almost all law firms now see as vital, and I have found difficult to come by. I look forward to going back to BPP and I hope to begin the GDL there in September. Abby Rowe BA Philosophy, University of Leeds
Behind the scenes of the LPC This blog aims to prepare you for the Legal Practice Course, commonly referred to as the LPC. To say it is intense is an understatement. The amount of time, effort and energy required makes you realise the LLB was a walk in the park! The LPC can be done full time over one year or part time over a period of two years. I remember being handed a hectic looking timetable on the induction day. Little did I realise this piece of paper was in fact a life saver in terms of helping me plan, stay in control and on top of my workload. The core subjects taught on the LPC are Business Law and Practice, Property Law, Civil Litigation and Criminal Litigation along with a handful of essential course skills. Each week there are a number of two hour small group sessions (SGSs) during which a tutor will go through the preparation you have carried out in advance of the session.
Business Law and Practice (BLP) is by far the most daunting of all the subjects taking a massive 27 SGSs to cover. It incorporates an array of topics covering business start-ups, partnerships, companies, business finance, insolvency, tax and business accounts. The best way to succeed in BLP is to allow the statue book (which you can take into the exam) to become your best friend! All the answers are in there, it is just a matter of navigating your way through it. Property Law is a subject covering areas such as leases, registered land and unregistered land. As much as this subject may seem dull, once you have a basic understanding it gets easier. If you are the type of person who enjoys learning by memorising then this will be the subject where you can shine. Litigation is split into Criminal and Civil Litigation. Civil litigation is often referred to as the ‘easy’ sub-
ject. It isn’t necessarily ‘easy’ just that it is ‘easier’ to follow. The course revolves around the Civil Procedure Rules (CPR) and the advantage is that the stages of litigation are mapped out for you. All you have to do is follow the relevant CPR. Having said that, we had two fantastic tutors namely Tracey Banks and Katie Jukes. Both had heaps of energy and actually managed to make learning fun! Criminal law covers acting for a client who has committed a criminal offence. The course takes you through arrest, the police station process, to bail hearings, trial and sentencing. Term 1 of the LPC is demanding so it’s important to get into a routine that works for you. I find that on average it takes approximately 2-3 hours to prepare for each SGS and on some occasions it can take slightly longer. It is so important that you fully prepare even if it means losing a few hours sleep. Going into the SGS unprepared is
one of the biggest mistakes you can make as each SGS requires lots of interaction and it becomes obvious if you have failed to prepare. Each subject requires time, effort and attention however a useful tip would be ensure you consolidate after each SGS. If you fail to do this there is no time to stop and play catch up. Learning as you go along is the most effective option otherwise come exam time you will have an absolute mountain to climb. I am now reaching the end of the LPC and I have absolutely loved every moment at BPP as it is a fantastic institution which offers excellent resources and facilities and this post is a simple heads up of what to expect in case you think you can treat this as you did the LLB. Sanya Farooq Full Time LPC, Leeds
What to expect … life as a paralegal On the evening of my 23rd birthday, after a long day of work in a call centre I received a call that finally meant I felt like I was getting somewhere. I had been for my first legal interview a few days before and was offered the job - in four weeks time I would be a paralegal. I had attended various talks where advice had been that, unlike in the past, the way to get into the legal world had changed. Becoming a paralegal was a popular way to progress with most firms given the economic climate - good grades and a long list of extra-curricular activities sometimes are no longer enough; experience really is the key and any job in a firm helps to build this. The notice period dragged while I wished time away anxiously, eager to start my next chapter. Anyone who has had jobs outside the legal world will know that mostly the first 1 to 3 weeks is an easy-going training schedule. Starting off with a day of “getting to know each other’s” and “here’s
three interesting facts about me” which always entails not being able to think of anything interesting about yourself until you’ve already given three mediocre ones; then immediately remembering that actually you are quite interesting and dare I say funny when the time has passed and everyone is laughing at the person sitting next to you and their brilliant anecdote. When I got a job as a paralegal I didn’t expect it to be like that, I’d been warned that you’re somewhat thrown in at the deep end and I wasn’t disappointed. Induction lasted only one morning and so, armed with my notepad, I set off with interviewing my first clients. One month in, certain pages of said notepad are already well thumbed - this has been an invaluable tip, which I will share with you now. Write everything. Write things you think you might not use often. Write things you may not even use at all. Write things you think are obvious. When you’re on your own the last thing
you want to do is ask a question that makes you feel an inch tall when you hear how simple it is when you know how. I’ve quickly learnt that it’s much better to write too much than too little. Hours as a paralegal are long; it’s not unusual to arrive well before 9 and be in the office after 6 and sometimes later. Unlike my previous jobs though, there is a refreshing buzz that I get on a Sunday evening. I don’t dread Mondays anymore and I don’t sit and count the minutes until home time that had become the norm. It has to be said that the opposite is true. Time seems to run away while I work. Before the recent bank holiday weekend I worked over without even realising. The satisfaction of ticking things off of a lengthy ‘to do list’ is indescribable, although not a day has ended yet where I have no tasks left at all! My day-to-day responsibilities involve interviewing clients, sending relevant documents out
and generally building my caseload, which will eventually be around 70 files. Organisation of your own work is imperative and this job favours my well practiced to-do list writing. As the cases progress, so will my experience and I am fortunate enough that I will see them all the way through to settlement or litigation. It has been challenging, interesting, exhausting and exhilarating. This job has proved to me that the years of revision and exams, the schoolday weekends, at times endless reading and general hard work will all be worth it - because I already love it. The firm that I am now working at offers training contracts internally every 18 months and I hope that in time I’m lucky enough to get that opportunity but obviously competition is fierce. My big plan? Work hard enough to make myself indispensable. Here’s hoping. Laura Ghafoor LPC, Leeds, Part time Saturdays
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‘Fresh Perspectives on Law’ aims to introduce students to new areas of law, key reforms and different views on often-controversial issues. Since being launched in 2012, Fresh Perspectives on Law has hosted speakers including Professor Jeremy Horder who is a Law Commissioner, Professor John Cooper QC, Courtenay Griffiths QC who defended Charles Taylor, the former President of Liberia at the International Criminal Court at The Hague and Professor Susan Edwards.
The series is open to all BPP students, students at other institutions, law lecturers, practitioners and members of the public.
“Privacy in an Electronic Age” Tim Pitt-Payne QC, 17th July, 6pm, BPP Waterloo This event is accredited for 1 CPD Point.
“After the Leveson Report – where next for Press Regulation?” 31st July, 6pm, BPP Waterloo A discussion panel on the aftermath of the Leveson Inquiry.
This event is accredited for 2 CPD Points.
“English Common Law: Defender of the Faith” Professor Carl Lygo, CEO BPP University College 13th November, 6pm, BPP Waterloo “Advocacy – the dirty little secrets” Sean Jones QC, 11 KBW 27th November, 6pm, BPP Waterloo
All events are followed by a drinks reception. The events take place at BPP Law School Waterloo, 137 Stamford Street, London SE1 9NN.
FREE ADMISSION For more information please contact the convenors, Chris Monaghan (ChrisMonaghan@bpp.com) or Thomas Bennett (ThomasBennett@bpp.com). @FreshPerLaw 34 Legal InCite – BPP Law School’s Student Publication
Exclusive Interview Special
Interview with Her Majesty’s Solicitor General, Oliver Heald QC, MP. Oliver Heald QC, MP was appointed Her Majesty’s Solicitor General for England and Wales in September 2012. He is a practising barrister and a Conservative Politician and has been a Member of Parliament for North East Hertfordshire since the 1992 general election. Oliver Heald studied law at the University of Cambridge and was called to the bar at Middle Temple in 1977, where he practised as a barrister for over twenty years. Why did you go into law? Was there any particular reason that influenced this decision and did you at any time consider other professions? I had always enjoyed representing people. From school I represented the class as ‘Form Captain’, I represented people for free when I was training to become a barrister and ‘enjoying representing people’ is probably what led me on to become a Member of Parliament. I have never considered any other professions. I have always wanted to become a barrister, although I wasn’t sure if I would be able to as it was so expensive in those days, as it is now, but with a bit of help from people along the way I managed it. What is your weekly routine?
The second case I referred to the Court of Appeal recently was for the largest mortgage fraud the country has ever seen and the court also increased the sentence there, and I felt that that was an important message about White Collar crime. And the third case will come up in a couple of weeks. When practicing at the Bar, before I became Solicitor General, I did a lot of cases that I found very rewarding, but what is most rewarding to me about these cases is that they have a national perspective, and I think that they will improve things generally by maintaining prison sentencing in some areas, . Particularly where Parliament has highlighted an offence as an important offence with a minimum sentence, I think it is right for the Solicitor General to take it to the Court of Appeal if the result is not what parliament intended. If you could spend the morning with a newly qualified solicitor or barrister, what would you teach him/her? There are a few bits of advice I have had over the years which I think are important, the first one is when you are preparing a case ‘go as far as you can see, and then see how far you can go’ in terms of preparation. The same point expressed to me by my pupil master was ‘You can never over prepare a case’ and arrive in court on time, is my final piece of advice! In your own career if you could go back, would you do anything differently?
Monday to Thursday I am in London, I come up on the 7:30am train on Monday and go back on the 8:15pm train on Thursday. I spend the morning in the Attorney General's Office going through various legal issues. I go to court sometimes as well. Although I practised as a barrister until 1995, I went back to the Bar after we lost the general election in 1997 and practised again. I am a barrister who practises as the Solicitor General in the Courts and so I do that from time to time. I have taken a series of cases to the Court of Appeal recently.
I suppose the only sadness is that I didn’t see much of my children when they were growing up, and maybe I should have done.
At the weekend, I have a busy constituency, and so I go round to visit all sorts of events visiting things like factories and surgeries in my constituency.
Do you think the current proposals for Legal Aid reform are limiting access to justice?
Are there any legal personalities that have influenced you over your career?
The Attorney General (Dominic Grieve) and I go to all the Bar Council meetings and Dominic is leader of the Bar, and he does represent all the concerns that are expressed to the Lord Chancellor. Chris Grayling has promised that this will be a genuine consultation and there are some very detailed submissions that are being put in and I am convinced that he will consider them very carefully and I would like to see an outcome that means that we can continue to have a strong independent Bar and effective solicitor’s profession.
I met Lord Denning when I was a student and later appeared in front of him. I liked his attitude, which was ‘You should be courageous as a lawyer’, which I think influenced me. I was also very lucky to be taught law by a man called James Campbell at University, who was my tutor - he was inspiring. They were the main two, but I also had very good pupil masters who also encouraged me a lot, although one of them did encourage me to go into politics. I am not sure if that was a reflection of my work as a pupil! Which is your most memorable case and why? I have found three cases that I have recently referred to the Court of Appeal, on unduly lenient sentences, very rewarding, because I have chosen cases that I thought have important reasons to put them to the Court of Appeal. The first case was about disguised weapons, which were high powered Tasers which can be used to incapacitate people, and the minimum sentence, unless there are exceptional circumstances, is 5 years imprisonment. But we had seen a few cases where that didn’t seem to be happening and there were rather a lot of ‘exceptional circumstances’. The minimum sentence was imposed by the Court of Appeal, which is very important when you imagine what a disguised Taser can do.
No. I have had lots of ups and downs. I have been a Minister and then lost the election; I have been a spokesman and then got sacked; I have been reappointed; I have had periods where it has been very hard and other periods where it was been fantastic, but it has been a very interesting, rewarding life at the Bar and in Parliament and I wouldn’t change anything.
Do you have a general philosophy of life? Do you have any pearls of wisdom to impart upon BPP law students? Life is not a dress rehearsal. I It is easy to say to yourself, ‘oh there will be a time when I can come back to this or I wont work too hard now as I am enjoying myself’ and I do think you should give it 100% and bear in mind that you only get one go at today. In court it matters. If you prepare your case well, it is often the difference between winning and losing.
Laila Heinonen Chief Executive of Students BPP University College
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