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the barrister

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ESSENTIAL READING FOR BARRISTERS

17 th APRIL - 1 st June 2012 EASTER TERM ISSUE

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Fusion or Fission – will solicitors remain a separate profession? In January I delivered a speech to the Said Business School, Oxford on my view of the legal services market, but also on the professions within that market. This has opened the debate on whether there might be scope for some kind of fusion between barristers and solicitors. While I concluded that we, as a sector, were perhaps not united in support of such a move, the subsequent response perhaps suggests that the solicitors and barristers are warming to the idea. It was interesting to read that Baroness

Deech, chair of the Bar Standards Board, delivered a speech to Oxford U n i v e r s i t y s t u d e n t s proposing that barristers and solicitors should share most of their training. The arguments for change are strong.

Features judicial 3 De-mystifying appointments Explaining and building confidence in the judicial appointments process, with a particular focus on testing and references, is a key priority for me in my new role as a Judicial Appointments Commissioner. Martin Forde QC, barrister at One Crown Office Row

12 Criminalising Subletting: A Step Too Far ... Or not

Far Enough? Housing tenancy fraud is one of the most significant types of fraud affecting the lives of families most in need, and is the largest category of fraud loss across local government at 900 million pounds Selena Jones, Barrister and Magistrate

John Wotton

In the current market there are

price £2.80

ISSN 1468-926X

President of the Law Society

p.6

research could 34 Brain play growing role in the criminal justice

DNA after Lawrence The admissibility of DNA evidence is a topical subject which is rarely out of the news. Recently saw Gary Dobson and David Norris were convicted after a “cold case review” of the Stephen Lawrence murder unearthed microscopic fragments of previously undiscovered DNA evidence linking them to the murder. But we need only look to the acquittal of Amanda Knox and Raffaele Sollecito in Italy, after the reliability of DNA evidence was successfully challenged, to know that DNA evidence must be approached with care.

presence at a scene. The recovery of DNA can, for example, be used to rebut an alibi or to prove 2 people had sexual intercourse when such activity is denied.

It is important to understand the role DNA evidence can play in criminal trials and how practitioners ought to be approaching it.

Forensic science is used to independently prove an issue without necessarily relying on direct witness evidence. It is rarely conclusive as, generally, it still needs interpretation in the context of an allegation. In a criminal trial p.8

DNA is generally used in cases to prove

E st . 1999

It tends to be controversial when there is no direct evidence of identification or where the amounts of DNA are so small that there could be some scientific or storage error but, these days it is admissible evidence as part of any criminal case and, subject to proper presentation and judicial direction, we trust juries to evaluate it properly

system but must be used with caution Neuroscientists seek to understand how the brain underpins our behaviour, thoughts and feelings. The law is also, of course, concerned with human behaviour, albeit for rather different reasons Professor Nicholas Mackintosh University of Cambridge

News 22

Introducing fees in the employment tribunals consultation response

23

Law Society, APIL and MASS urge re-think on Government civil litigation reforms

Publishing Director: Derek Payne 0845 5190 176 email: info@barristermagazine.com Publishers: media management corporation ltd Design and Production: Alan Pritchard email: info@soinspire.me.uk


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De-mystifying judicial appointments By Martin Forde QC, barrister at One Crown Office Row, Recorder and recently appointed as the barrister member of the Judicial Appointments Commission (JAC) by the Lord Chancellor.

E

xplaining and building

Senior Circuit Judge, candidates will be

confidence

the

shortlisted through a written test. Given

judicial appointments

the level of competition, all lawyers

process,

with

a

need to ask themselves whether they

particular

focus

in

on

should be taking the test if they have

testing and references,

not prepared and practised beforehand,

is a key priority for me in my new role as

no matter what their specialism or

a Judicial Appointments Commissioner.

how good they are as an advocate. A candidate needs to make time to visit

I took up the position last month and

the relevant courts/tribunals, read the

am one of 11 new Commissioners filling

appropriate legislation and case law and

vacancies created by the inaugural

observe a judge. They should also look

commissioners being at the end of their

at past papers and practise under timed

appointments with the JAC.

conditions.

Some lawyers think they know who

There were some issues raised with the

running

the best people are to become judges

recent Recorder exercise. The content

can be run online. The professions

and still question the need for an open

of the test was questioned by some, as

have said they want this to avoid the

selection process. This may betray a

was the fact that materials to be used in

embarrassment of walking into a testing

lack of understanding of the very high

the test were not supplied in advance.

centre and seeing colleagues. Other

level of competition for judicial roles.

Both Recorder crime and family tests

potential benefits include being able

were set by judges practising in the

to sit a test at a convenient time and

Since the autumn, a pilot (comprising three selection exercises), has been

Recently,

there

were

around

to

see

if

qualifying

tests

1500

relevant jurisdiction and approved by

location. Selection processes should

applications for 108 Recorder positions

an Advisory Group, which includes

get faster and be cheaper. The tests in

in the current exercise – many more

representatives of the Bar Council, Law

the pilot have all had the same format

than could realistically be interviewed.

Society, judges and academic lawyers

as those used previously and were also

A glance at the JAC website shows that

well-used to devising tests. The tests

written and marked by judges. The

other roles can attract similar levels of

were also subject to ‘dry runs’ and

evaluation of the pilot will be undertaken

interest.

were again appraised and evaluated in

in the spring and I’m eager to hear from

consultation with the Advisory Group.

practitioners about their experiences of

While the high level of applications

online testing.

is encouraging, in that it shows a

I’m keen to look carefully at the JAC’s

good level of awareness of the judicial

selection processes. As a former JAC

This year the JAC is hoping to have

appointments process, I’m sure it also

candidate in 2009 I wish to achieve

funding released by the Ministry of

reflects the amount of anxiety in the legal

consensus around anonymous, objective

Justice (MoJ) to develop a new IT

profession about cuts to publicly funded

testing. The JAC is continuously looking

system, which it is hoped will further

work. It also illustrates that lawyers

to improve its processes to ensure they

assist candidates by letting them apply

need to better self-assess whether they

are open, fair and cost effective. I intend

online, track their application and, if

are ready for a judicial role. Not all of

to explain better when lawyers should

shortlisted, select and book the date and

those 1500 applicants could have been

be putting themselves forward and how

time of their interview.

as good or as prepared as they needed

best to prepare. I also want to highlight

to be.

the wide variety of judicial opportunities

Regarding references, I suspect to find

available across the courts and tribunals

there are too many people focussing on

service.

who the referee is rather than what they

For the majority of the vacancies below


04

the barrister

have to say. There is no point choosing

evidence to the Constitution Committee

JAC hopes that part time working will

QCs or an eminent judge if they don’t

in early December and the JAC has

become available much more widely

know you, or just simply say ‘s/he is a

responded to the MoJ consultation. A

for all full-time judicial roles including

talented individual’. I will be looking

copy of the response is published on the

up to the highest levels. They know

into this area and the guidance given

JAC website.

from their own research that for many,

to candidates to ensure it is clear that

the absence of part time working is a

referees need to be people you have

The JAC has welcomed the inquiry and

real disincentive to some applying for

worked with in your career and they

consultation as being timely. The JAC has

judicial office

must provide real evidence of your

been with us for five-and-a-half years

talent.

and is a more confident and mature

There is another proposal that the JAC

organisation. It feels the time is now

should have a more meaningful role

What else do I think needs further

right to review its processes and work

in the selection of Deputy High Court

improvement? Certainly the length of

with partners to further reduce costs and

Judges. The JAC is currently required to

the end-to-end process does. On average

increase the speed of the appointments

concur with designations made by the

the JAC part (sifting, interviewing,

process. The JAC is also well aware

Lord Chief Justice. It is aware that many

statutory

of the challenges that increasing the

see designation as career enhancing.

Lord

diversity of the judiciary poses and is

Of selections made by the JAC for High

Chancellor) takes around 20 weeks, but

fully engaged with implementing the

Court appointments, over 80 per cent

it’s the whole process that matters to

Neuberger recommendations through

have had this experience. Separately,

the candidate and I’m looking forward

the Task Force set up by the Lord

the JAC Chairman has agreed a new

to working with the MoJ, Her Majesty’s

Chancellor.

protocol

the

consultation,

recommendations

and to

making

the

Courts and Tribunals Service (HMCTS)

with

the

judiciary

under

which the judiciary will run advertised

and the judiciary to speed this up. Then

You might have heard about the proposal

exercises for Deputy High Court roles

there is diversity, where progress needs

in the MoJ consultation paper that

on a division-by-division basis every

to be faster, especially at senior levels of

section 159 of the Equality Act should

year to eighteen months, against a set

the judiciary. I am personally interested

apply to judicial appointments, so if we

of transparent criteria. The protocol will

in social diversity, and believe this will

found two or more candidates to be of

be available to read on both the JAC and

be more of a challenge than some other

equal merit, the one who had a protected

judiciary websites and anyone seeking

areas of diversity, but selections must be

characteristic (eg. woman, black and

to be considered for one of these roles

made solely on merit.

minority ethnic (BME) lawyer or another

will be able to submit an ‘expression of

candidate from an under-represented

interest’ form to Judicial Office.

A

House

of

Constitution

group)) would be selected. There are

Committee inquiry and MoJ public

some who believe this is the silver bullet

The Constitution Committee is expected

consultation have also been discussing

which is going to significantly speed up

to report on these issues and more in the

these

The

progress on diversity. My own view is

spring and their recommendations will

is

this would be a rare event; there would

feed into the MoJ decisions.

looking at constitutional aspects of the

be practical issues to be resolved before

judicial appointments process, including

this could take place, and it is worth

From the spring a number of high profile

the role of the JAC, Parliament and

acknowledging that since 2005, the JAC

and popular judicial opportunities will

the Lord Chancellor in the process,

has made around 2,544 selections –

arise. In the next financial year there

up to the most senior appointments.

nearly 950 women and over 234 BME

will be High Court, Senior Circuit, Circuit

There is some crossover with the MoJ

candidates.

and District Judge competitions, plus a

areas

Constitution

Lords

among Committee

others. inquiry

consultation on judicial appointments

variety of traditionally popular tribunal

and diversity, which is just concluding

There are a number of other changes

and is also aimed at implementing

which could make more of a difference,

a

in

more quickly. The judiciary is one of the

The

Baroness Neuberger’s 2009 report to the

few professions where there is not easy

exercise

Lord Chancellor on increasing judicial

access to flexible working arrangements

vacancies is the first to launch in April.

diversity. The JAC Chairman Chris

for senior positions. Having salaried

This exercise was originally scheduled

Stephens, Vice Chairman Lord Justice

part-time working in the High Court

to launch in February and I know JAC

Toulson, and out-going Commissioner

could be very positive and the MoJ

staff are preparing for a high volume

Professor

consultation has a proposal on this. The

of applications. There is also a District

number

of

Dame

recommendations

Hazel

Genn,

gave

positions. Deputy with

District

Judge

(Civil)

an

anticipated

72


the barrister

05

Judge (Civil) exercise, expected to launch

currently in the news as the Government

in March 2013 with 70 vacancies. The

continues to look to discuss wide-ranging

JAC has been asked to run another High

welfare reforms, there are expected to

Martin Forde QC took Silk in 2006 and

Court exercise in the new financial year -

be 145 vacancies.

became a Recorder in 2009. His early

again to fill five vacancies. This exercise

forward to hearing your views.

career on the Midland Circuit included

is expected to launch in October. The

We work closely with the MoJ and

crime, personal injuries, matrimonial

new programme of selection exercises

HMCTS to respond to their emerging

and a variety of civil and criminal

introduces the first chance in two

requirements and therefore there will

work, though latterly he has focused on

years for people to become a Fee-paid

be some programme changes during the

medical negligence and regulatory work.

Employment Judge. Some exercises are

year, which will be highlighted on the

He is the South Eastern Circuit Diversity

also running more frequently than in the

JAC website jac.judiciary.gov.uk. Anyone

Mentor and Chair of the South Eastern

past. For example, there are two Senior

interested in these posts and any others

Circuit Minorities Committee. He is also

Circuit Judge exercises scheduled to

should visit the website where you can

the Chair of the Bar Council's Equality

run this year, with an anticipated total

sign-up to receive individual vacancy

and Diversity Sub Group: Access to

of 24 roles to be filled - locations as yet

alerts and the e-bulletin Judging Your

Appointments and Progression.

unconfirmed.

Future. You can also follow the JAC on

became a JAC Commissioner on 5

Twitter @becomeajudge and Linkedin.

January 2012.

Before all of this, the Ministry of Justice has also asked the JAC to run an

2012 is going to be a year of much change

additional selection exercise in March

for the JAC. The developments taking

for Fee-paid Judges of the First-tier

place should make a big difference.

Tribunal (Social Entitlement Chamber)

I want practitioners to be committed

who deal with welfare appeals. A role

to and confident in the system. I look

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06

the barrister

now few restrictions on members of the separate professions practising together in partnership or other permitted business structures. The Solicitors Regulation Authority will in principle regulate, in accordance with its Code of Conduct, entities owned and managed by any combination of authorised persons (any type of English and most types of foreign lawyer). p.1

Most significantly, in the context of coming changes, while the Bar Standards Board currently regulates only individual barristers and may shortly start to regulate barristercontrolled entities, the professional rules which prevented barristers from practising in partnership with solicitors have recently been revoked so that there are now no regulatory barriers to the formation of mixed practices of barristers and solicitors, regulated by the SRA. Already, there are over 60 firms that have a mixed practice of barristers and solicitors, which can not only provide advocacy services in all courts and tribunals in which a member or employee of the firm has rights of audience, but can also provide the practice-based final stage of training for both professions, i.e. training contracts and pupillage. Few jurisdictions have legal profession functionally divided in such a way. With solicitors now able to gain higher court advocacy rights one of the key functional planks supporting the division of the profession by two separate titles has been removed. There is certainly some demand for having the full range of dispute resolution services undertaken within the same entity and some efficiencies to be gained from doing so. If there are efficiencies to be extracted from a single provider of litigation and advocacy, then for publicly-funded work the Legal Services Commission and its successor

agency will no doubt drive suppliers in that direction. The same will be true in principle for privately-funded services, where they are commissioned by a sufficiently informed purchaser. Furthermore, a number of corporate law firms have recognised a potential competitive advantage in strengthening their litigation capability by recruiting experienced barristers. This seems entirely rational, for it is unlikely that the international commercial success of UK corporate firms has been achieved because, rather than in spite of, their lacking the trial advocacy capability of their US competitors. In recognition of this, the Bar has adapted its traditional, sole practitioner, chambers structure to compete more effectively for legal aid contracts and other work, appears to be a recognition of this imperative. The current Chairman of the Bar Council is right to recognise the vulnerability which the Bar experiences as a referral profession and to respond by identifying the ways in which more direct access to clients might be achieved, including systems for chambers to handle clients' money. However, the truth is that business structures in which solicitors practise have developed specifically for direct access by clients and the chambers model needs to be stretched to breaking point to achieve the same result. The increasing use of "corporate" marketing on the part of leading sets of chambers also seems to strain the traditional model. In the short-to medium term, might we not expect to see more barristers practising as such in SRA-regulated entities and more higher and lower court advocacy being undertaken by the barristers and solicitor advocates of the firm which has conduct of the litigation? Might we not also expect to see more barristers undertaking their pupillages in such practices? Might joining such a practice, as a salaried employee, if it has an established reputation for

advocacy, be a more attractive way for an aspiring advocate to start his or her career than embarking on a pupillage in a set of chambers, with no security for the future? In this environment of mixed practice, it is necessary to reconsider, as Lady Deech has, the extent to which the education and training of the two professions should continue to separate at the postgraduate stage. The disparity between the numbers of students undertaking the BVC and the far smaller number who find pupillage is striking and it is noticeable that many students who have done the BVC, and some who have completed all or part of their pupillage, ultimately qualify as solicitors. Might it not be more efficient, as well as better for the individuals concerned, for a postgraduate training course to have the capacity to prepare an aspirant lawyer for either profession? And might there not be similar advantages in going one stage further and make the model for training sufficiently flexible for those who undertake it to prepare for practice in any type of legal work, depending on the modules which the individual undertakes. For mixed barrister/solicitor practices, such a development would seem eminently sensible. One can envisage that a law firm with a strong litigation and advocacy practice (which might be a legal aid firm or a City firm) would take on each year a group of new recruits who have completed the common postgraduate course and provide them with an integrated training/pupillage, in the course of which those best suited to advocacy would emerge and receive sufficient advocacy training to secure higher court rights on qualification, while others receive the training necessary for litigation or non-contentious work. This model is in principle capable of operating in the context of a fused profession, or


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08

the barrister

one which remains divided by professional title (though at the expense of some of the current traditions of both professions). p.6

Such a model is hardly novel, as it is the way in which Scottish Advocates have for many years begun their careers. It is particularly at the more experienced and specialised end of the advocacy market that economic and public interest considerations favour the existence of an separate, referral-based Bar, whose services are potentially available to all law firms and their clients. What then is the most appropriate regulatory and representational structure for the environment in which they will practise together? In its response to the LSB, the SRA asks more generally whether it is in the public interest that the Legal Services Act model of an open set of separate approved regulators, based initially on the pre-existing professional bodies, but open to new entry and exit (by merger or otherwise), be retained. The specific issue which seems to concern the SRA in this connection is that of regulatory competition leading to a "race to the bottom" in terms of cost and standards. It is right that this question be posed, even though an acceptable minimum standard of regulation should be guaranteed on the part of any Approved Regulator under the LSA. Nevertheless, as the financial crisis has demonstrated, neither weak regulation nor fragmented regulatory responsibilities are necessarily in the public interest. The Law Society naturally welcomes the SRA’s aspiration to regulate as much of the legal market as possible. Indeed, it is in the interests of the solicitor’s profession and, I would suggest, the public, that they succeed in doing so. The greater the share of the legal market that is regulated under the SRA Handbook, the greater the incentive

to practise as a solicitor and the more widely available the unique consumer guarantee which this provides. The issue of regulatory competition is a reality, since the SRA is potentially at risk of the loss of regulated entities and individuals to other regulators (conveyancing practices to CLC, for example, or solicitor advocates to the Bar) and it is not so long ago that a number of City law firms, dissatisfied with the performance of SRA raised the prospect of forming a separate regulator for large corporate law firms, to be an Approved Regulator under the LSA. At the same time, many who have practised under other titles (notably barristers and legal executives) qualify as solicitors and so become subject to the SRA's regulation. The competitive discipline which the present situation imposes on approved regulators and professional bodies alike may on the other hand be a force for good, by requiring each profession to make its combined representative and regulatory offering as attractive as possible, so that the value of the profession's reputation outweighs the cost of regulation and the profession is attractive to new entrants? My tentative conclusion is that the balance of the argument lies on balance in favour of maintaining the LSA model of a number of regulators, based currently (but not immutably) on professional title. One could envisage a merger between the SRA and Bar Standards Board, while maintaining both the distinct professional titles of barrister and solicitor and the separate professional bodies of which they are respectively members (the Law Society, Inns of Court and Bar Council). This would carry the advantages of a single code of conduct in areas of overlap, such as advocacy, conflicts of interests and rules regarding entities.

However, it seems unlikely that the benefits would outweigh the costs (both the short term costs of integration and the long term costs of loss of competitive stimulus), unless mixed practices of barristers and solicitors had become so prevalent that separate regulation could no longer be justified. There is occasional speculation on whether any of the other approved regulators will merge. I doubt that this is likely in the near future. One could make a case for members of the Institute of Legal Executives being regulated by the SRA, on the grounds that most of them work in SRA-regulated entities. Equally one could make a case for ILEX and the Council of Licensed Conveyancers merging, particularly if ILEX Professional Services gains entityregulating powers, as the typical areas of work of their respective members are neatly complementary. No doubt, if material cost savings or reputational advantages were identified for any development of this kind, the bodies concerned would consider it seriously, in the interests of their members. Conclusion Change is already happening and much of the current focus is on the potential of new legal service providers emerging vita alternative business structures. But our attention should also be directed to innovative new ideas in other aspects of the legal sector such as education, regulation and the best sorts of business models to meet the challenges of the future. John Wotton, President of the Law Society

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


the barrister

p.1

where someone is accused of a serious crime, is therefore vitally important that the scientific evidence is reliable and accurate

What was interesting in the Lawrence case was that the expert evidence was not disputed- in the sense that it was accepted that Stephen Lawrence’s blood had been found on clothing or in clothing bags connected to the defendants – the issue, as in the Knox case, was whether there had been contamination to the extent that the findings could not be relied on – one case resulted in conviction, the other in acquittal Perhaps the difference is not that there were two different legal systems (although there are concerns about the conduct of the Knox trial) but that in the Lawrence case there was clearly other evidence including fibres, lies and a propensity to commit such offences Science has developed to the extent that DNA evidence is better understood so that we can feel more confident that it is reliable. However, where it is contested, such cases become high profile or controversial. Conversely – it can lead to satisfaction about criminal cases – For example reaction was overwhelmingly positive to news that the first case to be featured on the BBC's Crimewatch programme was solved after a DNA profile produced from evidence at the scene was linked to a family member of the killer on the national database leading the police to the defendant. Paul Stewart Hutchinson pleaded guilty over a year ago to the murder of 16-yearold Colette Aram and was sentenced to life imprisonment with a minimum term of 25 years some two decades after the killing. The evidence against him included a DNA match, fingerprint, opportunity and confession. DNA is a complex chemical found in cells of the human body carrying genetic information (half from each parent) which determines a person’s physical characteristics. The DNA of any individual is the same in all their bodily fluids and tissues. Except for identical twins, each person’s DNA is unique. This means that DNA profiling

techniques can be used to exclude someone as a donor of a particular sample but it cannot prove identity. In most cases, the scientists can provide a match probability dealing with whether a stain came from the suspect or from another individual. It gets interesting when you think of it in terms of people - In simple terms imagine your DNA is broken down into 20 parts (alleles) each with a number (1 to 20) plus X or Y to indicate male or female. I might have some the same as Nancy Dell’Olio – (brown hair, brown eyes) but we are from different geographical regions so the rest will be different. It is the combination of different DNA alleles that makes us all different. The sampling of DNA is provided on graphs – peaks on a page that look like a heart attack on a heart machine – high peaks indicate the presence of an allele with a particular number – if all the peaks are the numbers of my DNA profile then we have a match.

09

In most cases a sample is obtained from a scene and compared to a sample taken from a suspect. Where there is no known suspect, the comparison is done with those existing samples held on the national DNA database (persons previously arrested). Essentially there are 4 potential findings • A full DNA profile (all the alleles match) • A partial profile (some allele numbers are found) • A mixed profile (alleles from more than one person) • Low level DNA in cellular material (small amounts) There is no doubt as to the probative value of a full profile DNA match. If the full profile of the defendant is found on / in the victim or vice versa this will be a useful piece of evidence for the prosecution and will inevitably require an explanation from the defendant. In relation to a partial match: Imagine the sample shows only alleles / peaks (say numbers 2, 4, 6 and 8). Many people

Most people tend to think that finding DNA is conclusive. In criminal cases, it is often clear that DNA evidence is only part of the puzzle. The presence of DNA does not automatically prove guilt. In a rape case DNA evidence might prove sexual intercourse probably took place but it does not prove whether there was consent or not – that Bar Marketing, with over 10 years’ experience working still depends on closely with chambers, understands the way you work. witness evidence. We provide every marketing service: Equally, where DNA evidence in-house marketing support planning & communications a fully outsourced service managing press, events & webinars is found at a murder scene, Add to your marketing skills – not your headcount this might prove presence but 0771 434 5072 does not (of itself) info@barmarketing.co.uk necessarily prove barmarketing.co.uk participation

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10

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may share those DNA characteristics. The science has not yet developed sufficiently to say what each allele relates to so this means the sample is not a direct match for one person but puts potentially lots of people in the frame – thus reducing the match probability. Already you can see how investigators would have to look at the other available evidence. It is these cases where (even without contamination) mistakes can be made Mixed samples showing alleles from more than one person are often the victim and another / others If the victim’s DNA is excluded the scientist can look at what alleles are left – it might be full profile of one other person or part profile of more than one person. Bearing in mind that there can be some overlap where suspects have some of the same alleles (all white males from the local area for example) and it gets complicated. With low quantities of DNA, a copying process is used to make a larger quantity to ascertain level of profile available. This must be done properly by the scientists. The use of small amounts of DNA in the Lawrence case was not new. Since December 21 2009, the Court of Appeal decided that low template DNA and partial profile DNA are admissible in certain circumstances1: The first case was R v David Reed and Terrence Reed. On August 7 2007 David Reed and Terence Reed were convicted at Teesside Crown Court for the murder of Peter Hoe by multiple stabbing. The evidence against them was both motive and opportunity. Telephone and witness evidence put them in the area at the time of the killing and there was a relevant background to the incident. The defence case was one of alibi. Low quantities of DNA in relation to each defendant were found on two pieces of plastic from knife handles found near Peter Hoe’s body. The components of the DNA had been revealed using the Low Copy Number (LCN) process. They were not from blood or other identifiable biological material, but simply cellular material that had been transferred to the pieces of plastic. There was no real dispute with a defence assertion that

the cellular material could have been transferred from another source but the prosecution expert thought this unlikely. She gave evidence that in her opinion the DNA got there by handling. The second case, heard at the same time, was R v Neil Garmson. Neil Garmson was convicted at Stafford Crown Court on August 20 2007 of kidnap, rape and sexual assault which related to 2 separate rapes that had occurred in April 2005 and March 2006. Garmson was subsequently identified by DNA taken from the lip of the second victim. The DNA was merely a few components (known as a partial profile) but the Court of Appeal concluded it was admissible as it was not the only evidence. The prosecution also relied on the similarity of the attacks, fibres from the car which matched a jumper recovered from Garmson’s home, his knowledge of the area and that the drop off was near his mother’s house along with relevant comments he made on arrest . These cases show that DNA in all its forms can be admissible depending on the other available evidence. However, the analysis of a crime scene sample, even in relation to DNA, is not necessarily an exact science. The admissibility of a complex mix of DNA from more than one person was considered in a case I defended R v I at Leicester Crown Court in January 2010. This was a cold case gang rape from 2000 where there was a full profile sample inside a condom but on the outside was DNA from a woman other than the rape victim. In relation to the samples from the rape victim, once her profile and that of a co-defendant who had pleaded guilty were removed, part of the defendant’s profile was present but together with a component that he did not have, which had initially been discounted by the Forensic Science Service (FSS). The scientists eventually agreed that it was possible that it was DNA from someone else and Mr I was acquitted. The finding of DNA at a crime scene is a useful tool in proving the presence of the offender particularly in serious sexual offences and murder. In all of the above cases the defendants suggested they had an alibi for the events. The DNA evidence was used to put them at the scene and therefore to prove the commission of the crime together with other evidence.

However, it must be borne in mind that, whilst making it clear there should be other evidence, the Court of Appeal put no limit on how few components can be considered as useful. As few as four components were used in relation to Garmson, the possibility of transfer was accepted in the Reed case and Mr. Ishaq’s case made it plain that experts can find other material which could exonerate a suspect. One of the concerns is that, with the closure of the FSS, the value of scientific evidence will be affected and mistakes may be made. We shall have to wait for the next controversial case to see how this works out. An issue raised in both the Stephen Lawrence and Amanda Knox cases was the risk of contamination of the evidence in question. The collection and storage of exhibits is a question of fact which can impact on the reliability of expert evidence. Much depends on what the experts say about their findings. If there is a risk that the relevant samples have not been stored properly, the Lawrence case showed that this is generally a question for a jury although in certain cases, where the evidence is so unreliable and the other evidence is insufficient it may be inappropriate to prosecute or the judge might withdraw the case from the jury – again, much will depend on what the experts say in any particular case. If there is a major dispute between experts and the DNA is the only evidence, the case of R v Cannings 2004 2 Cr App R 7 remains good law: If the outcome of a trial depends exclusively or almost exclusively on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed. Otherwise the probative value of the evidence is a matter for a jury based on everything they hear. What is really most important is that the experts, advocates and the judge in summing up make sure that all relevant evidence is collected and the available evidence is easily understood. News in relation to the Jeremy Bamber appeal relating to expert analysis of gun residue (not done at the time of trial) seemingly showing that a silencer was not used, thereby potentially implicating one of the deceased, shows how important it is for thorough scientific testing as these areas of law create important issues of


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fact from which devastating inferences can be drawn. It is vitally important that the science is accurate and reliable and understood. Apart from the Stephen Lawrence murder, there are several recent cases of interest in this area which demonstrate the current approach of the Court of Appeal in relation to DNA evidence: • R v ZEPHEN ROLLINGS [2012] EWCA Crim 86 where a full DNA match led to guilty plea. The appeal related solely to sentence • R v DEAN CHARLES CLEOBURY [2012] EWCA Crim 17 where leave to appeal was refused in relation to issues of presentation rather than science : An expert, instructed by an offender to reconsider DNA evidence, had failed to discharge his duty to the court by not limiting his report to matters within his field • R v Steven Hookway and Gavin Noakes 2011 EWCA Crim 1989 where scientific evidence was disputed but other evidence available so it was all left for the jury to evaluate. The dispute

had not been whether there was DNA evidence incriminating the defendants but had concerned the strength of that evidence. The prosecution expert's evidence had not been criticised as being unscientific or based on any misconception. • R v C 2011 EWCA Crim 1607 where although cross-examination which had invited impermissible speculation by the defendant should not have been allowed, that was insufficient to support a conclusion that his conviction for rape, buggery and indecent assault was unsafe, there being no other basis on which to undermine the jury's acceptance of the significant DNA evidence. • R v Ashley Thomas 2011 EWCA Crim 1295: An interesting case where expert was not able to give a statistical evaluation but the Court of Appeal held that where a judge had been entitled to allow certain DNA evidence, and the interpretation of it by the Crown's witness, to go before a jury, and his summing up in respect of that evidence had been adequate, there was no reason to doubt the safety of the

appellant's convictions for possession of a prohibited firearm and causing grievous bodily harm. So, as has been described, DNA samples are admissible whether full, partial, mixed or low and the value of the findings / possibility of transfer depends on expert opinion and jury evaluation. Although the Court of Appeal has made it clear that much depends on the other evidence in the case, one can quickly see that there is a real danger of an incorrect DNA "match". This will require proper investigation as to what else is available to link a suspect to a crime. At trial however, since the concept of alleles by numbers is easy to follow, this need not be confusing for a jury. It is just important that it is presented properly by advocates and experts and summed up correctly by the judge.

By Felicity Gerry QC www.about.me/Barrister 1 R v David Reed and Terrence Reed; R v Neil Garmson [2009] EWCA Crim 2698


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Criminalising Subletting: A Step Too Far ... Or not Far Enough? By Selena Jones, Barrister and Magistrate Introduction

S

ocial housing properties are a valuable resource in England, with an asset value of over £180 billion, which provides households with low cost, stable and affordable homes. Registered social landlords (“RSL”) namely housing associations and councils are the protectors of this valuable asset. It is vital that social housing properties go to households that need them, and continue to be occupied by the tenant to whom it was allocated. With 2 million households on the social housing waiting list and another 250,000 statutorily overcrowded households waiting to be re-housed1, it is unsurprising that the current demand for social housing outstrips its supply. For these reasons social housing is in high demand. Housing tenancy fraud is one of the most significant types of fraud affecting the lives of families most in need, and is the largest category of fraud loss across local government at £900 million 2. A small minority of tenants abuse the social housing system, often making substantial profits in the process by subletting the property that they were originally allocated, at a time when they were in genuine need. With at least 50,000 homes unlawfully sublet 3, and the costs of keeping homeless families in temporary accommodation averaging at £18,000 per annum4, the government now propose to criminalise subletting. There are measures within existing law to tackle tenancy fraud. This article will focus on whether we need new legislation? And whether the government by proposing to criminalise subletting, has gone a step too far, or not far enough? What is subletting? A social housing property is sublet when a social housing tenant (“tenant”) rents a house, flat or room that is already being rented to them by an RSL. The tenant in this sense becomes the landlord to the sub-tenant. Subletting is only permitted in certain circumstances and the tenant would always need permission from

the RSL. Unlawful subletting occurs when a tenant sublets the whole of their property without the knowledge or permission of the RSL. If a tenant acts in breach of these terms by parting with possession or subletting the whole of the property, they lose their security of tenure which cannot subsequently become secure. For example, a tenant grants a subtenancy to an individual who is not entitled to reside at the property whilst continuing to pay the RSL rent, but charges a higher rate to the individual that they are subletting their property to. The tenant, who should otherwise be residing at the property, assumes the position of the landlord and keeps the extra money. This is a breach of tenancy, which may be treated in the same way as any other breach of contract or civil statutory provision. In these circumstances an RSL may apply to the court for an order to recover the property, on the basis that the unlawful subletting has given rise to a ground for possession. Subletting under existing law A tenant who permits individuals to unlawfully occupy their social housing property by subletting it, breaches civil provisions only. To retain a social housing property, a tenant must occupy their property as their only or principal home5, more commonly known as the ‘tenant condition’. The tenant loses certain associated rights such as the right to buy if security of tenure is lost. This can arise if the tenant parts with possession, or sublets the whole of the property6. The consequences of unlawfully subletting a social housing property, is confined to costs, damages and the loss of the tenancy. These remedies are granted sometimes in part, i.e. a possession order for the property but no order as to costs, after the RSL has satisfied a number of requirements. One such requirement is to prove that the property is sublet, which is no easy feat. An RSL not only needs to provide evidence to prove a property is sublet; it must also prove that the whole property was sublet. Adducing sufficient evidence to prove that a tenant has

sublet their property requires specialist staff, thorough investigatory work and a degree of luck. In practice an RSL would collate certain types of evidence to prove unlawful sublet in possession proceedings. This may consist of a copy of the tenancy agreement provided by the tenant to the sub-tenant, proof of rental payments made by the subtenant and any documentation which secures the sub-tenant’s occupation at the property, such as utility bills and bank statements. In addition, photographs of the property, witness statements and any evidence given at court by the sub-tenants will help to make a persuasive case for the court to find, on the balance of probabilities that the property has been unlawfully sublet. This level of evidence is not always readily available particularly where the tenant is meticulous in covering the deceit. For example, the tenant may deliberately fail to provide the sub-tenant with a tenancy agreement, collect rent in cash, and ensure that the sub-tenant has a prepared explanation for their occupation and the tenant’s absence from the property. Where an RSL is able to collate sufficient evidence to commence a claim for unlawful subletting, the obligation upon the court to make an order for possession is discretionary7. The discretionary grounds for possession are an area in which the court enjoys extensive powers. To obtain an order for possession, an RSL must show that the grounds for possession are applicable, and must prove that it is reasonable for the court to make the order. An RSL may recover damages and costs in cases of unlawful subletting. However, the level of financial compensation is limited on the basis that the RSL received their expected weekly or monthly payment of rent, compounded by the fact that the probability of recovering any award of damages is unlikely. Unlawful subletting is potentially a lucrative business with the capacity for an astute tenant to make significant untaxed profits. An example of this is as follows:


the barrister Case summary • An RSL offers a husband, wife and their two children a three bedroom property in south London in March 2005. The family reside at the property for two years and then subsequently move into their privately purchased property in January 2007. The husband sublets each room in the RSL property to unauthorised occupiers for £350 per room, per month. The property remains sublet until it is discovered by the RSL in March 2012. • RSL Rent for three bedroom property: £466.70 Per Month • Rent collected from the sub-tenants: £1050.00 Per Month • Profit £583.30 Per Month • Profit per year £6999.60 • Profit for the 5 year period £34,998.00 The financial costs of subletting to an RSL can be substantial but is not always visible. There is a perception by the public that unlawful subletting is not a serious offence. This is partly due to the erroneous perception that there are no financial costs resulting from unlawful subletting. This view does not acknowledge a local authorities statutory duty to provide housing for families who are in need. Where social housing properties are found to be sublet, in 80 per cent of the cases, the occupants are individuals who would not qualify for a local authority or housing association property8. The current social and financial cost of subletting makes this offence unsustainably high, particularly at a time where housing is a finite resource. There is wide scope for a tenant with a properly prepared plan to conceal an unlawful subletting. Under existing law there is no requirement for a tenant to repay past profits or make any reparation for depriving a family with a genuine housing need of a property. There are currently no sanctions other than to recover the social housing property under civil law when a property is sublet. There have been recent cases where some RSL’s have attempted to prosecute tenants for unlawfully subletting their property, under section 2 and section 3 of the Fraud Act 2006. However, there have not yet been any defended cases, so it cannot be said that these provisions provide an effective way of prosecuting unlawful subletting. Section 2 of the Fraud Act 2006 requires the tenant to have dishonestly made a false statement. In applying

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these provisions to a case of unlawful subletting, it should not be challenging to prove that a false representation had been made, particularly where the tenant has purported to be the landlord of the social housing property. It would be untrue factually and in law. The difficulty in my view arises with “dishonesty”. In the absence of documentary evidence, the main way of eliciting evidence to show that the tenant was dishonest, is through questioning during an Interview under Caution9. This may be difficult if the tenant exercises their right to silence during interview.

creating a mandatory legal gateway

Commencing an action under section 3 may also be challenging with respect to unlawful subletting, as it infers that the tenant is under a legal duty to disclose information. There is currently no legal requirement for a tenant to disclose to their landlord that they are subletting their property. The landlord and tenant relationship is not usually seen as one where the tenant has any special duty to safeguard the RSL’s financial interests. For these reasons, an RSL seeking to prosecute a tenant for unlawful subletting would encounter significant difficulties in relying on these provisions.

Conclusion Under existing law tenants who sublet their properties stand to gain significant sums of money. For most types of fraud an individual would expect to be prosecuted. It is unclear why this lucrative type of fraud is not treated in the same way, especially at a time when public spending reductions for central and local government are a serious concern.

Criminalising subletting The government is currently considering whether to create a new criminal offence of social housing fraud, which would include subletting a social housing property. The proposed penalties may take the form of a fine, criminal offence or both. It is proposed that a new criminal offence if it were to be created, could be tried in the Magistrates Court carrying a maximum sentence of a £5,000 fine or 6 months imprisonment, or tried in the Crown Court with a maximum penalty of a fine of up to £50,000 or two years imprisonment .

At present tenants who unlawfully sublet their property have little to lose and in some cases are able to retain their social housing property. The prospect of criminal proceedings, resulting in a criminal conviction would create a bigger deterrent to tenants who choose to sublet their social housing properties. It may also help to re-weigh the decision of a tenant who is thinking of unlawfully subletting their property to refrain from doing so, or where a property is currently sublet, encourage individuals to voluntarily end their tenancy.

Criminalising subletting is a timely step. The government should not only criminalise subletting but should ensure that there is a sufficient circulation of information to help to raise awareness of the seriousness of unlawfully subletting. Consideration should be given to offering RSL’s a financial incentive for each criminal prosecution and to the creation of a central register containing details of all individuals who have been convicted of this type of offence. Criminalising unlawful subletting is a step in the right direction and if legislated with a practical view of the entire process may provide RSL’s with an effective way to tackle unlawful subletting. Selena Jones, Barrister and Magistrate

The ability of an RSL to successfully recover an unlawfully sublet property requires evidence. This evidence may be obtained from other public sector agencies but is not currently available if the offence is unlawful subletting. Criminalising subletting would assist RSL’s in collating evidence from a range of organisations, such as the Department of Work and Pensions, DVLA, GP’s, HMRC, Banks and utility companies. This could be achieved if the government were to legislate in a way which gives RSL’s the powers to compel certain named organisations to provide relevant information, by

1 The Audit Commission, Protecting the Public Purse (2011) 2 The Audit Commission, Protecting the Public Purse (2011) 3 The Audit Commission, Protecting the Public Purse (2011) 4 The Audit Commission, Protecting the Public Purse (2009) 5 Section 81 of the Housing Act 1985 6 Section 93 of the Housing Act 1985 7 Schedule 2 of the Housing Act 1985 8 Symons, Tom. Don’t Let On – New Measures to help tackle unlawful subletting: New Local Government Network. 9 Police and Criminal Evidence Act 1984


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21st Century judicial review revealed An appreciation of the Fifth Hart Judicial Review Conference held in December 2011 in Central London, By Phillip Taylor MBE, Richmond Green Chambers

A

s a trailblazer for modern administrative law, Professor Stanley de Smith wrote, in the 1960s, that judicial review of administrative action was “inevitably sporadic and peripheral” with its determinations and interventions over the extent of rampant, uncontrolled administrative decision-making at that time. And this was also at a time when Lord Denning presided over the Court of Appeal with many interventions! Was this description correct or have things changed markedly since then? This question aroused my curiosity, because I was interested to see how things have changed throughout the last half century having reviewed Michael Fordham’s excellent and highly detailed short case summaries in the ‘Judicial Review Handbook’ over the years! So I attended what turned out to be an excellent “Judicial Review Conference” organized by Richard Hart and his staff, which took place in London run by Hart Publishing in December 2011. Hart publish the ever popular quarterly journal ‘Judicial Review’, too, which remains an excellent compilation of judgments, academic insight and debate on where we are at the moment with JR. The Judicial Review Programme The attractions of this Conference are always its star performers who covered all the main questions which we, as practitioners, tend to pose in this exciting yet controversial area of practice. This year they included the following areas: the leading cases of 2011; developments in practice and procedure 2011; applying legitimate expectation to the cases; judicial review in the Supreme Court; the courts and Parliament in 2011; judicial review jurisdiction of the Competition Appeal Tribunal; judicial review in the New Tribunals; and a Union of Courts- the UK courts and European courts in harmony. Attendees at the Conference were all clearly interested in the value of the leading new cases, and the splendid course materials supplied by Hart which I have found that I refer to quite

frequently since attending the sessions. Make no mistake that there’s a lot of ‘politics’ in this subject which is why so many learners run a mile rather than study Administrative Law! The one point which seemed to crop up at regular intervals is how much power our unelected judiciary really ought to have, or should have, in a modern democracy when reviewing administrative action. I say this in view of the disturbing breaches of basic rights by the imprisonment without charge of individuals who do know what they are charged with or when a trial is to be held. All the protests from the Bar Council and the Law Society seem to have fallen on deaf ears as this disgraceful practice is still in operation… years after Mr Blair retired to the lecture circuit having brought the policy in after 9/11. The Speakers So is judicial review still sporadic and peripheral today, or do the judges have teeth against the executive? From the cases listed by Richard Gordon QC, James Maurici, Jemima Stratford QC and Michael Fordham QC it appears to be a thriving industry for administrative law practitioners! And these are detailed, complex authorities which explore the extent to which our secretive variety of administrators make decisions. All the speakers were excellent so it is difficult to highlight particular people but some need to be singled out. Richard Gordon QC – Brick Court Chambers Mr Gordon’s “A year in the life of judicial review- the top 50 cases of 2011” shows that there is life in the old dog yet (judicial review, of course)! This started the Conference well as a summary of what has happened and is a great trip around 2011 JR. What then followed were quite a few, more detailed examinations of specific cases and leading judgments from successive speakers. Michael Fordham QC – Blackstone Chambers

We then arrived at another important highlight which was Mr Fordham’s contribution entitled ‘Judicial Review in the Supreme Court’ which I found fascinating for its insight into the development of this new courtFordham’s paper spanned three years (2009-2011) as an Aide Memoire to keep us up to speed and refresh our memories, and was indeed a comprehensive statement introduced with these words: “The Supreme Court’s first judgment was delivered in October 2009, in a judicial review case. Two years later, 6 out of the 7 judgments handed down in the month of October 2011 were public law cases. The 126 judgments of the Supreme Court so far have been dominated by cases raising public law and human rights issues.” And so it proved to be with some interesting and complex authorities which probably justified Professor Bogdanor’s view that “those who want a quiet life should avoid public law!” JR and the Tribunals The Conference, as expected, covered tribunals in great detail after lunch with two excellent PPPs from Rhodri Thompson QC (Matrix Chambers) and Professor Richard Macrory. Attendees will have received Macrory’s PPP slides later and they do provide an insight into the various headings he used. They included “Competing Visions 20012004” and “The Unexpected Alignment 2005-2010” before we arrive at the expanding jurisdiction of the First Tier Environment Tribunal which I knew virtually nothing about up to that point… just proving the worth of CPD itself. It also reminded me of de Smith’s quote as an example of how judicial review applications have changed over the years- without giving a judgmental view of whether this is good or bad. The Abu Qatada Case Throughout the Conference I was aware of the thread of concern which exists between the positive assertions of applicants for judicial review and the role of the State. The Qatada case exemplifies this because it has suddenly


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jumped back into the headlines with his release on bail in February 2012. It also highlights the continuing controversy over the role of the European Court of Human Rights (ECHR) who have intervened to express concern over the possible torture of Mr Qatada should he be extradited to Jordan. It appears that the role of twenty-first century judicia, review has been revealed since the Conference with the release of Mr Qatada- a man who is said to be the inspiration behind 9/11 and ‘extremely dangerous’ but now on bail whilst the British government attempts to balance respect for a persuasive judgment in the ECHR, with the right to obtain a successful outcome for judicial review of the case, and to assert the rights of a person to be charged and tried for an alleged offence and to know what the evidence is. In a nutshell, (and I have had to simplify this case to the main issues relevant here for spring 2011), the mechanism of judicial review remains the most important safeguard against flawed administrative action outside Parliament itself. So, it will be over to Parliament

to form a view, if it can, about the way forward. I took a straw poll of politicians just before Qatada was released and there seems to be a growing view that the judiciary are becoming “too involved” in matters which should be left to Parliament (and here I mean the Legislature). The developing conclusions appear to be: (1) that Parliament should override ECHR decisions in very special cases (such as Qatada- with the jet ready for Jordan at a moment’s notice!) which would satisfy this dreadful notion of the ‘court of public opinion’ which is not the way we do things under the established common law; and (2) if judicial review continues to expand and becomes more involved in matters some feel outside its remit, then the ultimate solution is a Written Constitution… and where will we be with JR applications then? Question two brings my appreciation of what came out of the Hart Conference last December back, conveniently, to the original question of whether judicial

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review of administrative action remains sporadic and peripheral today. You decide! I know what my view is but I am not saying…. Yet! ENDNOTE For me, one of the most interesting things about the Bar’s expanded public access scheme, which I am registered to accept instructions under, are the large number of cases where potential clients fall into dispute with administrators of one sort or another - these matters are on the increase at my local Law Centre. This year, I found more attendees at the Conference have now registered for public access work than ever before, although the low success levels for JR applications always remains a deterrent for many- it is the sheer cost involved when the minnow fight the great white shark (sorry about the imagery). The one question remaining is whether JR will continue to expand until the government steps in again but don’t expect much before May 2015!

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Findings from a statistical analysis of competition for pupillages at the Bar of England and Wales (2000-2004) By Dr Anna Zimdars, King’s College London

L

ord Neuberger’s 2007

to analyse their chances of success

on a Bar Vocational Course (BVC)

report on access to

broken down by a range of background

between 2000 and 2004, resulting in

the legal Bar found

characteristics such as social class, type

information on five years of pupillage

that

profession

of secondary school, university grades,

transition. More recent years were

currently suffers from

university type and so on. Ideally, such

at least a perceived

longitudinal data would go back even

excluded to ensure pupillage success was validly captured5. In total, 2,178

At the same time, the

further than the point of pupillage

complete individual records of British

report noted that actual data availability

application, perhaps to include all those

nationals

on transitions into the legal profession

who had undertaken the GDL or an

three participating Inns. We restricted

was unsatisfactory to refute or support such public perceptio2. The report thus

undergraduate law degree.

We could

the analysis to British nationals as we

then also study whether there are any

wanted to ensure that the predictors of

recommended

statistical

differences between those who wished

pupillage were not spuriously related

analysis… to establish whether there are

to join the Bar versus those who wished

to individuals returning overseas for

unexplained biases either in favour of or against particular groups of individuals’ 3.

to become solicitors.

practice.

The Inns provided data

regarding

gender,

exclusivity’1.

‘a

‘the

detailed

longitudinal

data

Unfortunately, –

and

‘ideal’

were

obtained

from

age,

the

ethnicity,

longitudinal data in particular – are

nationality, intent to practice, as well

This article describes the findings from

scarce . The main source of information

as pupillage and tenancy information.

the empirical analysis that followed this

on pupils – the pupillage survey – only

Two of the three Inns also provided

recommendation. I undertook this work

captures information on those who were

information on BVC attainment. Most

in collaboration with the Neuberger

successful in gaining pupillages. The

records

Monitoring and Implementation Group,

survey does not contain information on

on members’ undergraduate degree-

the Bar Council, and three of the four

anyone who had tried gaining pupillage but who had not been successful4. We

awarding university and their previous

thus decided it was prudent to assemble

this information was not consistently

our own, purposeful dataset from the

collected or entered. The accuracy of

greatest

membership records of the Inns of

records in relation to pupillage and

practical challenge to undertaking the

Courts as a way of capturing information

recommended statistical work.

on those seeking pupillages as well as on

tenancy was manually checked by the Bar Council6.

Inns of Court on a pro bono basis. Method: Data

availability

was

the

We

required meaningful data that would

also

contained

information

university grades and courses, but

obtained pupillages.

allow us to answer the question of how individuals with different characteristics

Three of the four Inns supplied their

Analytical Strategy:

fare in the competition for pupillages.

records for inclusion in this study (Inner

The

both

bivariate

‘Longitudinal data’ are most suited to

Temple, Gray's, and Lincoln's), with

and multivariate analyses.

Bivariate

this task: such data allow us to track

the actual records being anonymised

analyses tell us about the relationship

what happens to individuals over-time.

for the analysis. The Inns were asked

between two factors of interest: for

An example would be to study all those

to provide information regarding all

example,

who applied for pupillages and then

their members who had matriculated

between gender and gaining pupillage.

analysis

used

showing

the

relationship


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But bivariate analyses can lead to

aged 30 or above who were significantly

that “a graduate legal profession will

inconclusive or spurious findings when

less likely to gain pupillage than their

an important third factor drives a relationship7.

younger peers even when taking into

inevitably reflect the social imbalance within higher education”9 and earlier

account other possible explanation for

opportunities in education and the

this finding, such as the type of university

family context.

Findings:

attended and grades achieved. In other

analysis found that private school

The most powerful predictors of gaining

words, older applicants secured fewer

educated applicants for pupillages had

pupillage were the type of university

pupillages than younger applicants.

similar chances as their state school

attended, and attainment at university

For the sub-sample of 504 applicants

educated peers. There were no social

and in the BVC.. Those with the highest

who were matched through UCAS

class or ethnicity effects on a like for

attainment in their degrees and in the

on their schooling and social class, it

like basis. But the interpretation is not

BVC and those who attended the most

emerged that neither class nor schooling

that class, schooling, or ethnicity do

prestigious universities fared best in

were significant predictors of gaining

not matter. It just means that they do

the competition for pupillages. There

pupillage. Initially, the analysis found

not matter at the point of applying for

was a strong preference in pupillage

a positive effect just short of statistical

pupillages given their prior influence

allocations

significance

a

on, for example, university attendance.

for

Oxbridge

graduates,

of

having

attended

For example, the

those with a first-class degree, and with

private-school.

However this was

It is well established that private school

a BVC grade of outstanding. Men and

mediated through the higher attainment

students and those from the professional

women had indistinguishable chances

of private-school students and the

classes in particular, are most likely to

of gaining pupillage.

higher

There was no

prestige

of

the

universities

by

they had attended. While working-

attend the most prestigious universities 10. It might also be worthy of further

whether applicants had studied law as

class students were under-represented

contemplation to think why the ethnic

an undergraduate degree or undertaken

among Oxbridge graduates and those

minority

a law conversion course.

with firsts, there were no observable

tended to have attained less highly than

class effects when comparing aspiring

their white peers.

difference

In

the

in

pupillage

bivariate

success

analysis,

ethnic

applicants

for

pupillages

pupils on a like for like basis.

minorities initially appeared to be

Previous social research has found that

at a disadvantage in the competition

Interpretation:

university choice for minority students

for pupillage.

Interpretation of the findings may

and those from less affluent families was

vary;

critics

more susceptible to factors such as living

when

of meritocracy may find their case

at home and funding regimes than the

account

supported in the statistical evidence.

educational

Certified talent in the form of educational

decision of white and professional class students11. And, different universities

attainment. In other words, the findings

credentials from particular universities

provide their graduates with a different

did not suggest that ethnic minorities

and grades at university and in the BVC

environment that, in turn, might play

fared worse than white applicants for

were the strongest predictors of gaining

into chances of gaining pupillage. The

pupillage on a like for like basis. But

pupillage in the data.

This could be

finding that non-law graduates fared

this finding also indicates that ethnic

seen as strong support for the working

at least as well as the law graduates in

minorities competing for pupillages

of meritocracy in entry to the Bar. At

the competition for pupillages would

had generally attended less prestigious

the same time, the pattern of what

lend support to the idea that aside from

universities

always

the American sociologist Ralph Turner

the factual knowledge acquired during

achieved as highly as white applicants

termed a ‘surface meritocracy’ is also supported8.

a university experience, universities

became in

the

statistically multivariate

simultaneously ethnic

However, this effect insignificant analysis

taking

origin

and

and

had

into

not

for pupillages.

Both

meritocrats

and

The most disadvantaged group in the competition for pupillage were those

provide a socialisation in cultural habits, a tacit curriculum, and access to formal

The idea

of a surface meritocracy is

and informal networks irrespective of


19

the barrister

academic discipline. Careers networks

of such a discourse, pupillages are

It will also be of interest to monitor the

with alumni are one such formal

disproportionately awarded to those with

changing entry to the Bar during the

resource and likely to facilitate at least

uninterrupted educational trajectories

recession years, with previous research

access

informal

whose access to economic, social, and

suggesting that inequality cleavages

networks and imagined communities

cultural resources early in life facilitated

can heighten in times of a contracting

of having attended the same secondary

such early career choices. It might

labour market.

school or university, have been found

also be worth reflecting on equalities

on recessions has indicated that, for

particularly useful for getting jobs in other studies12.

dimensions that are completely absent

example, the recruitment of women can decrease during such times15.

to

mini-pupillages;

from the current equalities discourse

Previous research

- for example, region. With many The future:

desirable professional jobs clustered

Our interpretation may not resonate

in London, region can be an important

The opportunity structure of British

with all readers.

but little researched influence on career

education is not the Bar's fault, and the

opportunities.

Bar deserves credit for taking a strong

Two views collide

here: the first is that whatever happens before aspiring barristers apply for

interest in equal opportunities and

pupillages is not the Bar’s fault and does

Recommendations:

not require action (and besides, the Bar

record

so, the Bar will hopefully continue to

does better than other professions on social mobility 13). The second position

keeping systems, in particular with a

play a significant role in moving Britain

view to facilitating further individual

closer towards a society where joining

that I endorse is: there are issues

level longitudinal analyses;

even the most ancient and prestigious of

concerning the make-up of the pool of

aspiring barristers that are beyond the

longitudinal

profession’s direct influence. However,

progression and career exit. Career exit

as one of the oldest and most influential

data from the Bar indicate that women

This article is based on work published

professions in England and Wales,

and minorities disproportionately leave

in the academic journal ‘Journal

the Bar is exceptionally well placed to

the profession. Another area of interest

of Law and Society’ Volume 38 (4),

contribute to widening access, in terms

concerns the (self)-selection processes

December 2011; ISSN: 0263-323X, pp.

of keeping awareness alive in national

into different areas of practice;

575-603. The full article and references

debates and in terms of doing its share

are available by following the link below

in outreach and widening access work.

barrier to pupillage;

or by contacting the author at

anna.zimdars@kcl.ac.uk

to

to

further

selection into the profession. In doing improve

undertake research

of

further

professions is within the realistic reach

career

of everyone, regardless of background.

to raise awareness of age as a to think about how this barrier

Discussions about equal opportunities

can be addresses, perhaps through

h t t p : / / o n l i n e l i b r a r y. w i l e y.

need to be continuously reviewed and

training and mentoring;

com/doi/10.1111/j.1467-

developed. `In the absence of an explicit

discourse’ issues of equal access are

pool of universities from which the Bar

unlikely to disappear and might even re-emerge14. The lack of a gender

recruits;

effect in entry to the Bar, for example,

accountable processes for the allocation

Duncan

is noteworthy and laudable. However,

of pupillages and mini-pupillage,

through the Neuberger Monitoring and

complacency would be premature given

to continue and extend needs-

Implementation Group and Derek Wood

the discrepancies in career exit figures

based scholarships for legal training as

through the Pupillage Review Group.

later on. Similarly, there is currently no

well as for setting up tenancy;

Jennifer Sauboorah, Nicola Power, and

strong discourse on age and entry to the

mentoring

Pam Bhalla aided the work through their

Bar or other professions. The present

schemes for minorities to improve their

roles within the Bar Standards Board.

study suggest that, in the absence

performance on the BPTC.

Jude Hodgson of Inner Temple offered

to

continue

increasing

the

6478.2011.00559.x/abstract Acknowledgements:

to promote transparent and

to

promote

Peter

Marcus,

Bhavna

Matthews

aided

Patel the

and work


20 generous

insights

the barrister

into

membership

leading to 504 records being matched

8 R.H. Turner, `Acceptance of Irregular

Special

on all the variables of interest. However,

Mobility in Britain and the United States'

thanks to Pavlos Panayi for suggesting

the matching rate and the actual

(1966) 29 Sociometry 334-5.

matching Inn membership records with

matched information were short of what

9 P. McDonald, `The Class of '81: A

UCAS data.

a purposeful survey of the social class

Glance at the Social Class Composition of

and schooling background of aspiring

Recruits to the Legal Profession' (1982)

1 Bar Council, ‘Entry to the Bar Working

barristers would have asked.

There

J. of Law and Society 267-76, at p. 270.

Party – Interim Report’ (2007).

were also limitations in the format and

10 V Boliver ‘Expansion, differentiation

Council, April.

available

and the persistence of social class

2 Bar Council, ‘Entry to the Bar Working

attended and degree information.

Party – Final Report’ (2007).

Bar

data on scholarship recipients, disability

education’ (2011) Higher Education:

Council, November. P. 97; Equalities

or religion, or information on intended

The International Journal of Higher

Review,

area of practice was availability. The

Education Research 61(3): 229-242.

final report of the equalities review’

non-participation

11 D. Reay, M. David, and S. Ball,

(2007). Crown Copyright, p. 10.

meant that only approximately three-

Degrees of Choice (2005) 162.

3 Bar Council, ‘Entry to the Bar Working

quarters of BVC students eligible for

12

Party – Final Report’ (2007).

pupillage were covered in this study.

`Social Capital and Constraints on Legal

Council, November, p. 11, rec. 52

Despite these shortcomings, the data

Careers' (2006) 40 Law & Society Rev.

4 The Pupillage Portal now captures

set is a unique source providing some

445-80; and B. Bernstein, Class, Codes

information on applicants and those

information

into

and Control. Vol. 3: Towards a Theory

who are successful for approximately

pupillage for all members of three Inns

of Educational Transmission (1977, 2nd

half of all advertised pupillages.

who undertook the BVC course between

edn.).

5 For the study years, BVC graduates

2000 and 2004.

13 D. Lammy, opening speech at the `No

were

secure

7 For example, we might hypothetically

bar to the Bar' launch, Inner Temple,

pupillage up to five years after passing

find that women have a much higher

London, 2 December 2009.

their BVC.

success than men in gaining pupillage.

14 Crompton and Le Feuvre, op. cit., n.

6 There were some limitations to this

But we might also find in a different

77; see, also, Somerlad and Sanderson,

research design. First, the use of existing

bivariate analysis that women attain

Somerlad, H and Sanderson, P (1998)

administrative records from the Inns

more highly at university than their male

Gender,

inevitably falls short of the information

peers. We would then use multivariate

Women Solicitors in England and Wales

an ideal study on entry to the Bar would

analyses to find out whether women and

and the Struggle for Equal Status.

have collected and analysed.

Inns do

men with the same attainment have the

Ashgate: Dartmouth; S. Bolton and

not keep records regarding the social

same chance of gaining pupillage. This

D. Muzio, `The paradoxical processes

class origin of their members or the

is a ‘like for like’ analysis where other

of

type of secondary school attended (state

things are held equal. Thus, while we

the case of established, aspiring and

or private).

Given the importance of

might conclude from a bivariate analysis

semi-professions'

these two dimensions for the context of

that the Bar strongly favours women,

Employment & Society 281-99.

British public life, efforts were made to

we

hypothetical

15 Kanter, R. M. (1977) ‘Men and

retrieve class and schooling information

finding after a multivariate analysis to

women of the corporation’; New York,

through the Univesities and Colleges

say: the Bar favours students with high

Basic Books.

Admissions Service (UCAS).

UCAS

attainment. Women attain more highly

matched the records of 933 United

than men. All else being equal, there is

Kingdom BVC graduates from Inner

no unexplained advantage for women.

Temple and Lincoln's Inn with their

This

previous university application records,

throughout the statistical modelling.

record keeping processes.

Bar

‘Fairness and Freedom: the

technically

eligible

to

Bar

might

information

on

of

analytical

university

Middle

the

adjust

on

logic

Temple

transition

this

was

No

applied

inequalities

in

British

higher

See, for example, R. Dinovitzer,

Choice

feminization

and

in

the

(2008)

Commitment:

professions: 22

Work,


the barrister

21

It is almost a year since the landmark judgment in Jones v Kaney was handed down by the Supreme Court, but while barristers and solicitors report there has been little impact in practice so far, behind the scenes there has been a marked increase in enquiries from disgruntled litigants and there are signs that change may yet be to come. Mark Solon reports.

I

t was always unlikely that

five years after the Court of Appeal

that experts would not be willing to

Jones v Kaney [2011] would

found that experts should no longer

reach consensus for a joint report for

be a catalyst for immediate

enjoy immunity from disciplinary action

fear of emulating Kaney, have so far

change in the expert witness

by their professional body, following the

proved unfounded. Richard Powell, joint

world, for a number of very

case of Sir Roy Meadow, whose evidence

head of the personal injury department

different reasons.

For one,

in Sally Clark’s trial for murdering her

at JMW solicitors in Manchester said:

the high calibre and commitment of

two children was later discredited.

“My fear was that we would get the

a large majority of expert witnesses

EWI chairman James Badenoch QC

experts coming together to do a joint

means they have confidence that they

observed: “A lot of expert witnesses are

report but make no progress for fear of

will not be found to be negligent, a high

scared by the professional disrepute Sir

a Kaney situation.” However he added:

bar indeed.

Roy suffered.”

“It seems experts are getting on and doing their job as they always did.”

However, inertia is undoubtedly playing

Despite

its own part, and expert witnesses

barristers

say

Instead Jones v Kaney seems to have

are guilty of the very human trait of

experts have remained undeterred in

focussed experts’ minds on the need to

believing that law suits are something

practice. According to Daniel Shapiro of

give more measured advice at the outset,

that will happen to others, not to them.

Crown Office Chambers, who was led by

to avoid needing to make concessions at

Roger ter Haar QC, who successfully led

ter Haar in Jones v Kaney, the experts

a later stage when their views are found

for the appellant Jones against Kaney,

he has worked with in the past year

to be unsupportable. Shapiro said: “The

observed: “It’s a bit like in America

have not been affected by the landmark

real impact of Jones v Kaney is in

everyone believes in heaven and hell,

judgment: “They were and are all

experts being more careful to get their

but no-one believes they are going to

professional, honest people who were

reports right in the first place.”

hell.”

good and experienced in their fields.

these and

underlying solicitors

alike

fears,

They have carried on trying to assist

Imran Mahmood, a criminal defence

At the most recent Expert Witness

the Court by giving careful and accurate

barrister at 5 Pump Court added: “I

Institute (EWI) conference the subject

opinions,” he said.

think in time they will learn not to be so

of Jones v Kaney dominated discussion

robust in their earlier reports.”

and there is no question that the

Ter Haar QC added: “In commercial law

Supreme Court’s decision to strip expert

it is not making any difference at all.”

witnesses of their immunity still plays on experts minds. The decision came

While experts who do give a measured opinion at the outset will have less

Fears among personal injury lawyers

to fear when meeting an opposing


news round up

22

the barrister

INTRODUCING FEES IN THE EMPLOYMENT TRIBUNALS CONSULTATION RESPONSE Government proposals to introduce fees for those bringing claims in Employment Tribunals and the Employment Appeal Tribunal could backfire, warns the Employment Lawyers Association (ELA), representing more than 5,800 specialist employment solicitors and barristers. More than 40 of ELA’s members met in working groups to examine in detail alternative charging options contained in the Ministry of Justice’s consultation document.

NEW MARKET REVEALS NEW OPPORTUNITIES FOR THE BAR – BAR COUNCIL DIRECTOR TELLS LPMA CONFERENCE On 24/02/12 the Director of Representation and Policy of the Bar Council, which represents barristers in England and Wales, highlighted the important and relevant role

In their view, whichever option the Government chooses to adopt, its twin aims

of the modern Bar in a keynote address to

of massively reducing the cost of running the tribunals, while maintaining access,

the 2012 Conference of the Legal Practice

would be defeated. In 2010/11 218,100 claims were brought in employment

Managers Association (LPMA).

tribunals (ETs) and 2,048 appeals. The total cost to the Exchequer of the ETs and EAT was £84.2 million. At present, it is free to lodge a claim.

Addressing an audience of chief executives, practice managers, and clerks, Mark Hatcher

ELA notes that the decision to introduce fees has already been taken. Whilst

commended the LPMA’s role in the continued

accepting that this is a matter for Government, ELA is disappointed that there was

success of the wider Bar community and

no opportunity for consultation on the principle of charging fees. Its concern with

its relevance to a competitive, globalised,

regard to the implementation of this decision is that the charging regime should

increasingly commercialised and more highly

be practical, easy to administer and such that it does not restrict someone with a

regulated new market which is the subject of

justified claim from seeing that claim through to a legitimate end.

a high level of public interest.

Government Option 1 proposes a fee to recover a proportion of the service costs,

Hatcher remarked on the Bar Council’s need

which would vary for single claims depending on the nature of the claim and the

to remain relevant to all of its constituents,

stage of proceedings; for multiple claims, the number of claimants would be an

and to strike the right balance between the

added factor affecting the fee. Option 2 proposes an initial charge when the claim is lodged, with variations for the value of the claim, multiple claims and the number of people involved. Claims over £30,000 would be subject to a higher charge set to recover the estimated full cost. The provisional figure proposed under Option 2 is £1,750; unless this fee had been paid, the ET would not be able to award more than £30,000 in compensation, whatever the loss assessed. Peter Wallington QC of 11 KBW Chambers and Paul Statham of Pattinson and

interests of the profession, the consumer and the public, and outline the ways in which it is achieving this, from its campaign to protect legal aid for the vulnerable, to lobbying on LSC payments for the publicly-funded Bar, to its leading role in the Unlocking Disputes campaign to promote London as the world’s leading dispute resolution centre.

Brewer, who jointly chaired the ELA sub committee which examined the proposals, say:

“The Bar, in its widest sense, makes a notable contribution to exports of legal services

“The Government is in danger of implementing a fee system which will be

which is not always fully appreciated. The

expensive to administer and generate relatively little revenue. At the same time

Bar Council and members of the LPMA have

they risk excluding legitimate claimants from the tribunal system, either because

an excellent opportunity further to develop

they do not fully understand the new fees requirements, or because they simply

the Bar’s business as we discover new

cannot afford the cost of bringing a claim, but do not qualify for remission of

markets and new ways of delivering specialist

the fees. We are also concerned about the possible disproportionate impact fees will have on the already disadvantaged, and the likelihood that the fee regime will result in cases being less easy to settle without a full hearing, precisely the opposite of what the Government seeks, and we would endorse, as a policy.”

advocacy and advisory services that are efficient, cost effective and valued by clients. The Chairman of the Bar, together with the rest of the Bar Council, looks forward to developing an even closer relationship with

ELA’s main points of concern can be read at:

the wider Bar community as we pursue this

http://www.barristermagazine.com/services/press-releases/

common and worthwhile goal.”


the barrister

23

news round up

Friends in Law On Monday 27th February 2012 Michael Todd QC, Chairman of the Bar Council, met with representatives of sixteen chambers to present them with their 2012 Friends in Law Awards, a small recognition for the support these chambers give to both the Free Representation Unit and the Bar Pro Bono Unit. The Award, now in its third year, is unique in that it reflects the significant annual contribution made by certain chambers to both of the two charities that help facilitate pro bono work across the Bar. Michael Todd said “I’m delighted to support the Friends in Law awards and the excellent and collaborative work which FRU and the Pro Bono Unit administer on the Bar’s behalf. Pro bono is in the profession’s DNA. At a time when access to justice faces so many threats, the investment which individuals and sets of chambers make in supporting pro bono activities deserves recognition.” Karen MacKay, Chief Executive of FRU said; ‘It is a pleasure to give special mention to the chambers who support the range of pro bono activities through donations to ourselves and the Bar Pro Bono Unit. Such effort could easily go unrecognised if it were not for the Friends in Law scheme. As a Friend in Law, chambers can include the logo on their website and their publicity materials.’

Lindsey Poole, Interim Chief Executive of the Bar Pro Bono Unit said: ‘Each year, the number of chambers qualifying for Friends in Law recognition increases and we hope that as awareness of the award increases, so more chambers will join. We are delighted that Michael Todd has given up his time today to help us celebrate the success of this year’s scheme.’ In order to qualify for Friends in Law, chambers will have made a minimum donation of £1,000 to both FRU and the Bar Pro Bono Unit. The Chambers qualifying this year are 1 Essex Court, 3-4 South Square, 11 King’s Bench Walk, 11 South Square, 12 King’s Bench Walk, 3 Verulam Buildings, 39 Essex Street, 5 Raymond Buildings, Blackstone Chambers, Brick Court Chambers, Cloisters, Devereux Chambers, Keating Chambers, Landmark Chambers, Outer Temple Chambers, and Tanfield Chambers. To find out more about the Friends In Law Scheme, please contact Catherine Henley at FRU on 0207 611 9555 or Kuki Taylor at the Bar Pro Bono Unit on 0207 092 3969.

Law Society, APIL and MASS urge re-think on Government civil litigation reforms Three leading legal organisations have joined forces to suggest to the Government how its proposals for reform of the civil litigation system in England and Wales could be improved to protect injured victims. The legal bodies’ proposals, which they will be putting forward as potential amendments to the Legal Aid, Sentencing and Punishment of Offenders Bill, involve: • • • •

fixing and limiting claimant lawyers’ success fees at a new lower level, while retaining the current principle of making them recoverable from the losing defendant; enabling claimants in most cases to pay their own premiums to insure against paying the other side’s costs (after-the-event, or ATE insurance premiums); implementing a workable method of introducing the Government’s proposal for qualified one-way cost shifting (‘QOCS’) which would make the system truly effective in helping injured people; and put into legislation the ten percent uplift in damages recommended by Lord Justice Jackson.

The Association of Personal Injury Lawyers (APIL), the Law Society, and the Motor Accident Solicitors Association (MASS) have today urged the Government to revise plans which would force injured people to pay towards the cost of claiming compensation. “The Law Society remains convinced that the changes to the civil litigation system in Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Bill will harm access to justice” said Desmond Hudson, chief executive of the Law Society. “The changes will make it much more difficult for people to pursue claims for injury and loss caused by the wrong-doing of others. This is in no-one’s interests. However, we also recognise that Government is determined to review the system. With colleagues at APIL and MASS, we have combined in a spirit of pragmatism to present to the Government an alternative set of proposals which address their concerns but which will cause less damage to the interests of ordinary citizens who have been wronged.” APIL president David Bott said: “Transferring costs from the person who inflicted needless injury onto the innocent victim, as currently proposed by legislation before Parliament, will mean many injured people won’t be able to afford to claim the compensation which they deserve and may desperately need. Even if they can claim, their damages will be cut. But in the face of the Government’s apparently implacable determination to drive reforms through, we have focussed on the development of constructive and thoughtful alternatives.” “This may not be the ideal solution,” he said, “but the claimant community has worked hard to formulate a compromise which is balanced enough to suit all parties in this debate. We are now calling on the Government to give this package serious consideration. The only party to benefit from the Government’s current proposals is the insurance industry whose interests should not be put before those of the public.”


24 p.21

the barrister

expert for the purposes of a joint

claims where insurers are footing the bill.

qualified, appropriately trained in what

report, Jones v Kaney flags up

“That is where there will be movement if

is expected of them by the court, and

the very real need for experts to

there is any,” Mahmood predicts.

fully insured they will continue to have

be fully prepared for this exercise. Ter

little to fear, but the path to hell is paved

Haar QC said: “Every practitioner will

Clearly, most experts will be reassured

with good intentions and worrying is no

have stories of their expert going into a

by the fact that, if things do go terribly

longer enough.

meeting and being bullied or writing it

wrong, they will be covered by insurance.

down in the wrong way.

Shapiro said: “Most expert witnesses

Author

already

Mark Solon

had

professional

indemnity

“It causes tremendous trouble undoing

insurance already, as indeed, Dr Kaney

Managing Director of Bond Solon and

that damage. You can’t cross examine

had: the damages and costs were paid

Solicitor

about what happened in the meeting

by her insurers.”

Bond Solon

and in 90% of cases it all goes very

Paulton House,

smoothly but in 10% of cases it just turns

Professional indemnity insurance is now

8 Shepherdess Walk,

into a nightmare.”

more critical than ever and Shapiro

London N1 7LB

added: “Experts recognise that it is

Office: +44(0)20 7549 2549

Despite Jones v Kaney being widely

possible to make mistakes and, as there

marks@bondsolon.com

viewed in the expert community as an

is now liability for such mistakes, are

extreme case, there are signs that it

taking out appropriate cover.”

Website: www.bondsolon.com

may be a matter of time before further cases ensue. Shapiro said: “Obviously,

This is echoed by professional indemnity

since Jones v Kaney there has been

insurer Ntegrity, which works closely

an increase in enquiries, presumably

with Bond Solon to give a substantial

because more clients and solicitors

discount to expert witnesses who have

know that their expert can be sued

trained with Bond Solon. Managing

than did before and because the risks

Director Gary Horswell said: “We have

inherent in challenging the law are no

noticed more visitors to our website

longer an issue for such claims.”

and have had more calls from experts interested in the Bond Solon scheme.”

Mahmood, meanwhile, has received around four such enquiries in the past

However, in a sign that more experts

few months, whereas before that the

need to convert their best intentions

figure was one in five years. He said: “I

into

have definitely seen more direct access

hasn’t yet translated into a big increase

clients, otherwise litigants in person, say

in policyholders but the signs are

‘I’ve been badly advised by my expert

encouraging.”

action

Horswell

added:

“This

and had I not been badly advised I would not have embarked on litigation.’”

Jones v Kaney may have been dismissed by experts as something that would

For these litigants in person, the cost

never happen to them but if further cases

of pursuing a claim has so far acted as

do arise there are fears in some quarters

a deterrent. However, there is more of

that this will shake the confidence of

a question mark hanging over claims

the expert witness community and

where funding is available, such as

even their willingness to act. There is

personal injury and medical negligence

no question that if experts are highly


the barrister

25

Women Offenders – CIFC, An Unusual Collective Voice By Peter Kilgarriff, Chair of the Corston Independent Funders Coalition (CIFC)

I

t is five years since Baroness

had risen to 14%. Worryingly, despite

the lives of women. Importantly children

Corston

produced

her

comprising a mere 5% of the total prison

are also frequently affected - an estimated

influential

review

how

population, women accounted for 47% of

18,000 children are separated from their

our Criminal Justice System

all incidents of self-harm, of which there

mothers each year and only 9% of these

treats women with particular

were nearly 27,000 in 2010.

remain in their own home cared for by

of

vulnerabilities.

This

their father.

government-commissioned review made

It is a sad measure of how little has

a number of recommendations which

changed in the last five years that Clive

It is against this background that the

argue convincingly that women are

Chatterton, the recently retired Governor

Corston Independent Funders Coalition

different to men. In general terms, their

of HMP Styal, has felt it necessary to

(CIFC) decided to raise their unique voice

crimes are different, their needs are

write to the Justice Minister expressing

alongside the many other voices which

different, their ongoing responsibilities

his view that half of the women in his

are calling for change.

even after imprisonment are different,

former prison should never have been

their sentences are different and the

sent there. He confirms what we all

Charitable trusts and foundations are

consequences

are

know that giving short sentences to

fiercely independent. They spring up

often more costly and far-reaching in

women with particular vulnerabilities or

out of the generosity and foresight of

the effect on their immediate families.

mothers is damaging and self-defeating.

individuals or institutions, often with

The Review recommended a gender-

He cites one woman jailed for 12 days for

particular objects and purposes. Unlike

specific, community-based service which

stealing a £3 sandwich and another who

other charitable endeavors, endowed

recognizes and tackles the complex needs

took a £12 bottle of champagne from an

foundations have a particular privilege;

of women with particular vulnerabilities

off licence but whose 10-day sentence

their independence does not rest on the

as an alternative to the clearly failing

was spent ill in hospital guarded by two

decisions of others and apart from the

policy of inserting women into a prison

prison officers.

obligations flowing from their founding

of

imprisonment

system designed for and dominated

deeds and their legal responsibilities,

by men. The immediate reason for the

In her recent article in The Barrister

they are more or less free to do what the

review was the death of six women in

Juliet Lyon, the Chief Executive of

trustees decide. This very independence,

almost as many months at HMP Styal

the Prison Reform Trust, gave a good

however, makes collaboration difficult.

in Cheshire but the problems had been

picture of the reality which faces women

piling up well before then.

offenders and the costly social and

The formation of the CIFC – involving

financial effects of treating them as we

over

In 1995, the women's mid year prison

do. We know that most indicted women

foundations

population stood at 1,979. In 2000, it

serve ineffective and wasteful sentences

unprecedented move. Coming together

stood at 3,355 and by 2010 it had risen

of six months or less often for petty

in 2008, the Coalition sent an open

to 4,267. In that year, a total of 10,334

and non-violent offences and that many

letter to Jack Straw, the then Minister

women were received into prison, a 6%

are having to cope with mental health

of Justice, calling for an end to putting

increase on 2009. Behind these rising

problems, substance misuse and sexual

non-violent women offenders in jail and

figures lay a significant increase in the

and physical abuse. Often the impact of

moves towards placing them in far more

severity of sentences. In 1996, 10% of

these unnecessary custodial sentences is

effective community solutions.

women convicted of an indictable offence

the loss of home and family, only adding

CIFC’s stance was not – and is not –

were sent to prison; in 2010 this figure

to the trauma, chaos and disruption to

entirely altruistic. Part of our motivation

20

independent –

was

philanthropic therefore

an


26

the barrister

is to protect the investment we have

It is a measure of the importance

complex needs of women at risk in the

already

made.

investments

trusts and foundations attach to this

criminal justice system. We want to raise

support

voluntary

initiatives

agenda that the Coalition has decided to

the profile of the alternatives to prison in

both inside and outside of prison.

continue to use what influence it has to

the eyes of Sentencers and commission

Examples include funding drug and

highlight the contradictions in current

more research into the relationship

alcohol

rehabilitation

practice and press for change.

between Probation Trusts and their

literacy

schemes,

These sector

programmes,

supporting

family

local services as well as discover if there

ties and relationships and developing

The first time-limited phase of the CIFC

are geographical differences in the

self

or

has now ended. Given the importance

number of women being sent to prison.

educational programmes. Supporting

of the issue, but also the unique

Probation staff play an important role in

such

and

collaboration of so many trusts, it was

advising the Court and their knowledge

infrastructure organizations, we have

decided that the whole process and

and partnership with available services

enabled them to be more effective and

outcome should be separately evaluated

could play a crucial role in the outcome

also better show just how effective

so that others may learn from it.

of a trial. We have to learn more about

esteem

through

operational,

artistic

campaigning

they are in reducing re-offending. For

how

Sentencers

view

the

options

example, independent research funded

This has now been completed and

available. We know that some women

and published by the CIFC shows that

is

http://www.

are sent to prison as a last resort

for every pound invested in support-

lankellychase.org.uk/uploads/

because the options seem to have been

focussed alternatives to prison, £14

Corston_Report_v5a_crops.pdf ]. This

exhausted but we also know what dire

of social value is generated to society

reports that by coming together, CIFC

consequences follow such a decision.

generally over 10 years.

achieved outcomes which individual

More also needs to be done at the court

trusts could not have achieved alone.

itself. Our experience is that court-based

Although not always specifically targeted

It was responsible for establishing

diversion schemes, particularly those

at women offenders, Foundations have

Women’s Breakout, a key infrastructure

focussed on mental-health issues, can be

invested many millions of pounds each

organisation which provides a network

very effective in keeping women out of

year in interventions designed to guide

for the growing number of women’s

prison – to the benefit of all concerned.

people away from crime and custody.

centres which meet women’s needs

Often, trusts have been working in

in a holistic way and provide a viable

Finally, CIFC is under no illusions;

this area for decades and we share

alternative to prison. This network

reducing the number of women in

other’s frustration when we see the

also enables the centres to share good

prison by diverting them from crime

fruits of that long term investment

practice and present a unified voice to

and custody is no easy task. We do not

ruined as effective work is undermined

government and funding bodies.

have all the answers but we do think

available

[link

-

or prematurely ended by policy or personnel changes. The CIFC is not a

that we bring a particular influence and But much remains to be done.

campaigning organization, there are

experience which complements and strengthens the work of other agencies

others that do that far more effectively

CIFC now begins a new phase of its

and it is certainly true that we have all

than we can, but as investors we shall

work to ensure that Funders and other

to work together if our aims are to be

continue to underline the importance

stakeholders keep abreast of what

realized.

of our investments and take decision-

is happening as national decision-

makers to task when these are ignored

making is translated into local action,

Peter Kilgarriff, Chair of the Corston

or threatened.

particularly as local commissioning and

Independent Funders Coalition

"payment by results" take shape. We also In

the

years

that

have

followed

propose to continue ongoing discussions

therefore it has worked with successive

with government and develop new

governments to strengthen women’s

conversations across local and central

community services and show that they

government departments since they

can provide an alternative to custody.

clearly share responsibility for the


the barrister

27

‘Publish or perish – meanwhile, study what’s already out there’ By Dr Scott Bader, The Forensic Institute Publication and the Scientific Process

ing on the most narrow topics to those

experience, is also highly transferable.

working in similar fields. The underpin-

Indeed, many scientists move from lab

Publish or perish’ is advice (or

nings of the scientific method mean,

to lab, country to country while applying

a warning) heard by most sci-

however, that specialisms are not gen-

their skills to research of a different fo-

entists embarking on a research

erally recognised when it comes to the

cus. The importance of scientific experi-

career.

ability of a scientist to comment to some

ment, the publication and dissemination

degree on the work of other scientists.

of data, and the transferability of under-

If some recent judg-

ments from the Appeal Court are anything to go by, scientists

standing and skills is as true for forensic

involved in the forensic arena needn’t

Transfer of knowledge

science as any other, but, “the science

bother.

Having been published, the information

comes first, then the forensic”[1]. Thus

is available for scrutiny, reproduction,

graduates with university degrees in ba-

The underlying purpose of publication

challenge, debate and development. Sci-

sic sciences remain the first choice for

is the dissemination of knowledge to the

ence will evolve, sometimes abandoning

most forensic posts.

wider scientific community for peer re-

an hypothesis, modifying it, or accept-

view in a wider sense. That community

ing it as the best for the moment. Sci-

Basic research provides some of the

will range from those scientists work-

entific knowledge, whether expertise or

tools used in other areas of science.

STEP Advanced Certificate in Trust Disputes Trust disputes – anticipating and avoiding the pitfalls Add value to your business with this professional qualification A practical course which aims to give you an understanding of how to anticipate, and therefore avoid, the common pitfalls which can lead to trust litigation and arm you with litigation nous. Top 4 reasons to study for this Advanced Certificate: 1. Provides an A to Z coverage of trust disputes. 2. Helps you to ‘future-proof’ trusts against litigation. 3. Provides you with a practical overview of the themes commonly encountered in trust disputes and an understanding of the overarching principles. 4. Helps you to identify the potential risks involved in the creation and administration of trusts and how to manage those risks. Completion of the Advanced Certificate enables you to meet your full annual STEP and SRA CPD requirement. Course content written by Toby Graham TEP.

View the syllabus at www.step.org/pd or www.clt-stepdisputescert.com A qualification for practitioners worldwide


28

the barrister

There is probably no better example

the courts have been utterly ineffective

treatments.

than DNA profiling. The first ‘DNA fin-

in scientific debates, then that is it. The

tested by scientific research.

gerprinting’ was fortuitously discovered

subject has been excellently commented

and developed from work on variable

upon elsewhere [3-4] and is included

One could think of publications as the

areas of DNA. These areas showed a

within the considerations of the recent-

experience of some scientists made pub-

variation within the population but were

ly published Law Commission Report

lic for the benefit of others. Indeed, as

fixed for any individual and showed an

regarding the admittance of evidence

discussed by Rudin & Inman, published

inherited transfer from parent to child.

based on experience[5].

research is better than an individual’s

This had academic interest for biolo-

Experience counts, but is

experience in that it shows the hypoth-

gists and geneticists but was clearly use-

R v Weller

esis, background, methods and data

ful for forensic identification purposes.

Recent Appeal Court decisions in the UK

(with the participants’ interpretations)

The original method was refined and

have not improved matters. The Court

of controlled experiments. It has been

developed to the current PCR-based

in R v Weller[6], said about Dr Bader

said that in science, “you can find out

DNA profiling, now considered the ‘gold

(the author here) that he:

that you are certainly wrong, but you

standard’ of the forensic sciences. Thus,

“had published a large number of pa-

can never know that you are certainly

academic biological science has trans-

pers in areas of cell biology and molecu-

right”. A single publication with contra-

ferred its knowledge to forensic science.

lar biology… we have no doubt about

ry data to a particular hypothesis may

his scholarship, his academic ability or

be enough to destroy the hypothesis, no

his integrity.“

matter how much evidence exists in its

Of course as novel technologies are introduced or old ones pushed further, controversies may ensue, such as the lower

favour. There are many examples of this The Court also stated, however, that:

limits to which DNA profiling of small

phenomenon (e.g. Newton and Einstein, flat Earth and perhaps most recently the

samples can be taken, called generically

“if one tries to question science purely

speed of light). Presumably the Court

low template DNA (LTDNA). In normal

by reference to published papers and

would simply rather not hear of that re-

scientific discourse these disputes can

without the practical day-to-day experi-

search.

remain active discussions within the sci-

ence upon which others have reached a

entific community and remain, literally,

judgment, that attack is likely to fail, as

Taking the Court’s statement in extremis

academic. However, in forensic science,

it did in this case”,

as applied to lawyers, one would say

the courts inevitably become involved in

that the individual experience of any

these debates despite, as described by

and that the Court hoped:

one barrister’s career is sufficient and

the National Academy of Sciences (NAS)

“that the courts will not be troubled in fu-

appropriate to outweigh any reference

of the USA as, being “utterly ineffective”

ture by attempts to rely upon published

to the published knowledge in Archbold.

in doing so [2].

work by people who have no practical

Indeed, any barrister who relied upon

experience in the field and therefore

‘only’ what was in Archbold, no matter

The problems in forensic science, inad-

cannot contradict or bring any useful

how definitive the published judgment,

equacies that have no national bounda-

evidence to bear on issues that are not

would be overruled by the opposing bar-

ries, generally were most comprehen-

always contained in scientific journals.

rister’s declaration that “well, Archbold

sively highlighted by the NAS report.

There are plenty of really experienced

is irrelevant because in MY experience

One aspect of forensic science outside

experts who are available and it is to

bla bla bla”. Where would be the prin-

of any particular discipline that is com-

those that the courts look for assistance

ciples of common law and precedent

ing under scrutiny is the role of experts

in cases of this kind”.

without reference to prior expertise of

presenting evidence and opinion for use

other lawyers, perhaps decades if not

by courts, and the relative functions of

Unsurprisingly, given the fact that pub-

expertise vs experience. The apparent

lished data is the foundation of science,

difference between expertise and expe-

the response from the scientific commu-

The scientific resources

rience in the eyes of the courts might

nity is one of shock at the lack of under-

The issue at appeal in R v Weller was

be summarised as: “we’d rather listen

standing of science by the Court. One

the ability to assess the possibilities of

to someone who has spent years doing

can only assume that the Court would

how DNA interpreted as matching the

the job than someone who is informed

rather trust an experienced pedlar of

complainant could have transferred

by all of this research and data”. If ever

snake oil, than clinicians working on the

directly to the appellant, and whether

there was a succinct summary of why

basis of controlled trials of drugs and

there was a reliable scientific basis upon

centuries before?


the barrister

which to evaluate the possibilities. The

research manuscript to show:

29

scientifically how DNA moves from one

appellant had admitted contact with the

surface to another.

complainer. Much was common ground

“(a) that a significant amount of DNA

z

between the scientists at the appeal in-

will be transferred from the vagina on

No number of years spent at the labora-

cluding the possibilities or characteris-

contact and (b) the DNA transferred will

tory bench can tell us whether the DNA

tics of some of the suggested routes for

be present some time later.”

that we are examining came to be there

direct transfer (contact with vomit, hair

The Court completely ignored the infor-

by direct or indirect contact. On the oth-

or touch). It was likewise agreed that

mation from the quantity of DNA, even

er hand, if the DNA profile of the known

digital penetration of the vagina could

though it was described in the research

owners of clothes or items appear again

be a good method for transfer. Without

results.

and again then experience tells us that

any apparent sense of irony, in the light

is what one expects to find. Experience

of the eventual conclusion, the Court

The expectation, based on the Crown’s

can teach us something when each ‘ex-

stated that:

own research data, is that it was more

perience’ amounts to a little experiment,

“one could use the scientific research as

likely that there would be more female

for example driving a car around a cor-

a basis for considering whether in the

than male DNA if there were a signifi-

ner faster, diving into a swimming pool.

circumstances of the particular case in-

cant excess of one DNA compared with

In each such instance you know the in-

ferences could be drawn as to the meth-

the other. The results from the casework

put and the outcome.

ods of transfer.” [my emphasis]

sample did NOT conform to what one

However,

would expect if the Crown’s assertion

The Flanagan & McAlister manuscript

“[w]here there was not common ground,

was true.

has now been published[9]. It is curi-

however, was the weight that could be

The recommended guidelines published

ous to note that the data showing the

attached to matters that were not pub-

by the suppliers of scientific services to

relative proportions of male to female

lished”.

the police say that the logical, balanced

DNA is skimmed over in passing, if not

and fair way to evaluate evidence is to

actually omitted. One must assume that

Of importance at the appeal was reli-

consider two propositions[7].

this was done for reasons of space. With

ance made by the Crown on three re-

case they would be that:

the demise of the FSS Ltd, it would be

search reports. Two had been published

(1)

the DNA profile was produced

a shame to have this data not see the

and one was a manuscript (by Flanagan

as a result of direct transfer of DNA from

light of day and assist future Courts’

& McAlister) of experimental data pro-

the vagina to the fingernails, as opposed

understanding of issues regarding DNA

duced at the research laboratory of the

to

transfer.

Forensic Science Service Ltd, at that

(2)

time submitted for consideration for

as a result of transfer of DNA from some

Summary

publication in one of the forensic sci-

other source (i.e. not the vagina).

Expertise gained from the study of con-

ence journals. Dr Bader’s opinion was

The only safe conclusion in this case, af-

trolled scientific experiments is more

reasoned and logical, on the basis of the

ter reference to the controlled scientific

reliable than experience, even if some-

experiments performed by the FSS Ltd.

experiments, was that (2) is more likely

times more limited, and should carry

In the experiments, about 12 hours af-

than (1).

more weight with Courts. Perhaps this is

In this

the DNA profile was produced

ter digital penetration it was three times

why courts continue to be ‘utterly inef-

more likely that the major contributor

The Court, however, chose to value

fective’ in dealing with bad science; they

to a profile was from the woman. In the

more highly the Crown scientist’s ‘per-

simply do not recognise good science.

case at court there was roughly 5 to 10

sonal experience’ of matters (i.e. not

times more male than female DNA (i.e.

published and subject to wider peer re-

the opposite relationship) at about the

view). (A confusion of the importance

same time since alleged contact. There-

of expertise vs experience in the eyes

fore, although it is possible that the evi-

of the Court was perhaps also seen in

dence could be explained by the Crown

the appeal of R v Henderson[8].) Other

position, on the basis of the research

case-related experience adduced at R

data the evidence was more likely to be

v Weller was unpublished. It remains

explained otherwise.

unexplained how the examination on a day to day basis of items associated with

The Court summarised the data of the

alleged incidents is supposed to inform


30

the barrister

The long grass is a dangerous place By Ian Dodd and John Binks, ProcureCo

I

t’s some months since the

means of a structured competition.

announcement by the MoJ

prospect of rate rises.

What followed,

therefore, was a series of failed attempts,

about the postponement of the

There are those at the Bar who took the

over a period of 10 years, all aimed at

introduction

of

competitive

view the pressure was off, relaxed, and

creating a healthier market.

for

legally-aid

just put their head back in the sand (or

those commercially minded solicitor

criminal defence work and,

wherever). This complacency will turn

practitioners who welcomed proposals

by association, civil family work has

out to be ill-advised as the whole of

for fewer firms and bigger contracts

been postponed and this saw jubilation

the legal landscape is rapidly changing

invested in the first of many aborted

in many barristers’ chambers and we

and competitive tendering for legal aid

LSC schemes as ‘preferred suppliers’.

hear, from them, that the reforms have

contracts is only a small part of it.

Since that time we have seen the

been ‘kicked into the long grass’. Whilst

Snooze and you lose.

LSC’s cancelled BVT pilot for Greater

tendering

there may be those at the Bar who

In 2002

Manchester and the West Country in

are pleased the overwhelming emotion

Indeed, some of the smarter chambers

2009, the farce of the 2010 family bid

should, possibly, be one of a missed

have kept on preparing themselves

round, and now the last minute decision

opportunity.

tendering

for competitive tendering and, even if

of the MoJ to cancel the long promised

would have given the Bar the chance

it doesn’t come to pass for legal aid,

consultation on price competition.

to strike collaborative and cooperative

this work won’t have been wasted.

deals with solicitors jointly to bid

The infrastructure work required will

Although the LSC predictions as to

for contracts and prove the worth of

form the solid basis of the bids for

what would happen to the supplier

their advocacy skills. That opportunity

the big volume, long-term tenders and

base are certainly coming to pass,

has been lost until at least 2015 and,

contracts that are increasing daily as

both the LSC and MoJ now seem to

given the MoJ’s serial inability to get

clients seek to have more cost-effective,

conveniently overlook their justification

competitive tendering off the ground,

efficient and durable relationships with

for embarking on this failed process of

maybe forever.

forward-looking chambers.

change, or perhaps no one now knows,

Competitive

remembers, or most unpalatably ,cares In fact, it's the worst thing that could

Already we’re dealing with a range

why all this was done in the first place.

have happened for the long term

of clients who want to do ‘reverse

Some may see an irony in this short

viability of the Bar. Price competition

ProcureCos’ with advocacy suppliers by

history of ‘change’. Those providers

would

guaranteeing work levels over a contract

whom the LSC would doubtless once

period but on their terms.

have claimed to value the most, those

have

clearly

reduced

the

number of directly contracted legal aid providers, and, if properly managed, it

that invested and planned for the future

offered the opportunity for making the

It is worth considering how and why we

the LSC has mapped out, have been

provider base a healthier place and,

got where we are in the first place.

consistently disappointed. Those that

crucially, it would have allowed the

have simply ignored every word that

Bar to enter. The supplier base could

The LSC identified in 2002 that if nothing

has been said in the last 10 years are

have been refined to a smaller group of

was done to support the growth of

still here. That analysis would, however,

more efficient, modern and innovative

larger providers then the supplier base

be an over simplification. Things have

practitioners.

Good and proficient

would perish by attrition in a market

undoubtedly become tougher for all

suppliers now won't have a chance to

populated by too many providers with

practitioners, harder than the LSC ever

show what they're worth through the

work spread too thinly, and with no

predicted and, as a result of static (and


the barrister

31

in some cases reducing) rates, profit

equally, do nothing. Such business will

The genie of competition is out of the

margins have become ever slimmer.

doubtless look for other opportunities

bottle, and even Ken Clarke is never

The core of firms who have changed

for expanding the volume of work they

going to get it back in.

are better suited to resist the current

carry

climate, and, as foreseen, some of those

reduction in the overall volumes of work

So, far from whooping with unrestrained

who have not have changed have, sadly,

flowing to the Bar. Chambers with a

joy, barristers might be well advised

withered on the vine. Even sadder, some

real eye on the future will seek out such

to redesign their chambers operating

excellent providers (both solicitors and

opportunities as well - and there are lots

system, come up with some iconoclastic

counsel) have simply lost faith and given

out there.

ideas for growth and design/implement

out,

which

inevitably

means

up on publicly funded work. However,

some fresh strategies based on new

we have yet to see if the MoJ will

There is a paradox in that whilst the

contract/commercial business models.

decouple the reduction of the supplier

Bar and the Law Society have focussed

It might mean some very hard thinking/

base from competitive tendering and

for almost six years on resisting price

talking to move away from the traditional

find another way to do it.

competition in legal aid, it has been

but, in the opinion of many, old-fashioned

quietly accepted in many other areas,

management structures, decision by

So where does this leave the Bar? If the

seemingly, without demur. A number

committee, universal democracy and

MoJ still pursues its long term target of

of local authorities and others are

lack of corporate endeavour. However,

£350-400m saving a year, and there’s

currently running price competitions

better that than joining the legal aid

no sign that they’ve been excused

for all manner of work, and more are

reforms in the long grass.

that by the Treasury, it's the worst

sure to follow. Local authorities have,

thing for a go-ahead chambers as the

of course, previously invited competitive

continuing cuts in legal aid will only

bids in discreet

make it harder for them as smaller/less

areas of law; and

proficient competitors will keep doing

they

the work and taking away volume (the

inviting

only way to make up for poor rates) just

cover the entirety

to survive. So, it'll be death by a million

of their advocacy

cuts in what will seem like a never-

requirement.

ending reduction in legal aid rates.

Some

are

now

bids

to

chambers

will participate in There will still be a new round of legal

these competitions

aid contracts for both family/crime

with more success

early in 2013 and the recent ministerial

than

statement was mute about that. Whilst

such

markets

BVT has been postponed it didn’t say

size,

capacity

anywhere that OCOF has.

and

others.

MoJ

decision

to

do

nothing

commercial

will

always

coincides neatly with the somewhat

carry

delayed acquisition by the SRA of its

advantages

power to licence ABS. It would be wrong

new

to expect that those firms that have

models

been quietly preparing for competition

doubtless arise to

will simply accept that their share of the

meet this demand.

crime market will now stay static, and

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

In

a w a r e n e s s The

Ian Dodd/John Binks

inherent and

business will

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32

the barrister

An Irish Blessing Andrew Otchie shares his reflections on the American Bar Association, Section of International Law Fall Meeting held in Dublin Bar

speakers, key thinkers and decision makers.

he American Bar Association has four institutional goals and since 1983, has sought to “promote the rule of law in the world”. Through its Section of International Law, the ABA also runs numerous “Rule of Law Initiatives”, which include, sponsoring international projects, advisory programs, and sending out task forces, working groups and delegations to cooperate with other Bar Associations. Furthermore, it is concerned with “carrying out research into international and comparative law and related areas; to further its development; to diffuse knowledge among members of the legal profession and others; to formulate professional opinion thereon; to promote professional relationships with lawyers similarly engaged in foreign countries”, and to this end, also hosts international conferences that attract high-level practitioners from around the world.

Opening session According to an Irish proverb, time is a great story teller, and “he is bad that will not take advice, but a thousand times worse that takes every advice”. To open the conference, there was much wisdom shared from her life experience, and a clear message spoken by Mary McAleese, the President of Ireland, herself a member of the Northern Irish Bar since 1974 and Reid Professor of Criminal law and Penology at Trinity College Dublin. Her Excellency spoke of her passion for international law in campaigning for human rights and the need for “legal literacy” in Ireland and the world. Throughout her career, she had drawn inspiration from Daniel O’Connell, a fighter for Catholic emancipation in 19th Century Ireland, and although the face of injustices in our day are quite different, they must yet be overcome by ensuring we have proper access to legal systems that work.

The work of Association

the

American

T

The 2011 Fall Meeting was held in Dublin, which proved a very popular destination with the Americans, many of whom proudly trace their roots back to Ireland and take an active interest in its politics and economics. There were representatives attending from large and respected global law firms, prominent regional and national firms, US-based small-firm and solo practitioners with significant international practices, corporate and in-house counsel, lawyers serving in government or with non-governmental organisations, and academics. The ABA International Section has 23,000 members, from 90 countries, and boasts of 60 committees that meet to consider legal issues arising from all regions of the world. With such a critical mass of lawyers for its membership, the International Section is able to put together a very well-organised conference, lasting for an entire week, with over 70 individuals programs, and hosting leading expert

The President’s address also reminded conference that the world must “cherish” human rights in its civic discourse, and legal systems that work must be fought for and pursued by joined up thinking. This was the case in respect of free second tier education in Ireland, which was not fully established until the 1960’s. The move toward higher rates of literacy was a journey, from which there was no turning back, and ensured that the Irish were aware of their rights, and not diminished as human beings. Today, with a more diverse population, and still overcoming the scandal of child abuse in the Catholic Church, legal literacy means ensuring that citizens are confident in their rights and responsibilities from a young age, have the knowledge that their consent is needed for decisions made on their behalf, and aware that they are always entitled to the full protection of the law, no matter who they are. Human rights issues A strong human rights theme was

prevalent throughout the conference, as a luncheon was hosted by Mary Robinson, the former President of Ireland, and former UN High Commissioner for Human Rights. A panel also considered “Elections and the Rule of Law in Developing Nations: Guidelines for Understanding, Adjudicating, and Resolving Disputes in Elections”, whereby they discussed the prominent role of the Afghanistan Election Complaints Commission following the 2009/2010 election, and the 2010 protests in Thailand. These incidents have drawn attention to the importance of Election Dispute Resolution (“EDR”) and systems that are effective, competent and responsive, protecting political rights of citizens, yet establishing and maintaining the legitimacy of a system of government and preventing post election violence. There are seven key international law standards that apply to electoral complaint adjudication, and lawyers are increasingly becoming involved in EDR as a growing area of legal practice. Furthermore, the moral and ethical dilemmas that are present in the “Privatization of Military and Security Functions” were also addressed. The outsourcing of military functions that were traditionally only the domain of States raises novel transnational regulatory and human rights challenges, as the distinction is blurred between regular forces (who are responsible to the State and must abide by military law) and private security companies, whose operatives are merely subject to contracts of employment, and have been to known to cause severe strains in relations with the nations within which they operate, when exercising the use of force. The panel, including Ambassador Zameer Akram of the Government of Pakistan, analysed the issues, discussed challenges and solutions, such as payments of reparations, strong national legislation, self-regulation of stakeholders, and international humanitarian law observance, through the ratification of the international convention known as the “Montreux document”.


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the barrister Commercial & corporate topics The conference also addressed many commercial topics, including a review of Ireland’s Arbitration Act 2010 and the work of Arbitration Ireland. The Act aligned Ireland’s rules and procedures with international standards, including the UNCITRAL (United Nations Commission on International Trade Law) Model Law. Thus, under the Act, arbitrators are required to give written, reasoned awards, unless the parties agree otherwise, it is not possible to appeal awards and awards are set aside on very specific, limited grounds only. The Act was intended to create a more streamlined, cost-effective and user-friendly arbitral system, and Arbitration Ireland, a body of leading members from the Irish Bar and law firms, was established to coincide with the passing of the Act, and promote the attractiveness as Dublin as a destination for high-level international arbitration. Also considered was “A New Era of Anti-Corruption Enforcement” and with the UK Bribery Act coming into force

in 2011, specifically how companies and individuals who conduct business internationally face a broad new set of anti-corruption standards. The experts compared and contrasted the Bribery Act and the U.S. Foreign Corrupt Practices Act. Many are weary that enforcement agencies are becoming increasingly aggressive and unsure how resources are to be employed, and documents preserved, as the two regimes evolve. In particular, attention was paid as to how the jurisdictional reach of the two laws differs, whether the Bribery Act and its “adequate procedures” defence will require a substantial revamping of existing compliance programs, and what will likely be best practice, when defending an anti-corruption enforcement action. It was interesting to note how many lawyers from around the world are paying such close attention to the UK Bribery Act.

Section Leadership, local and other international lawyers. Exchanging business cards, participants had the opportunity to engage and learn about other members and create future business opportunities, networks, and make friendships that will last a long time. Andrew Otchie is a tenant at 12 Old Square Chambers This article is taken from his report to the International Committee of the Bar Council and the London Common Law & Commercial Bar Association

Networking The conference also provided “Speed Networking” sessions, where there was an opportunity to meet with the ABA

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Brain research could play growing role in the criminal justice system but must be used with caution By Professor Nicholas Mackintosh FRS, Department of Experimental Psychology at the University of Cambridge

N

euroscientists seek to

on a retributivist theory of punishment

cortex and the connections between

understand how the

– but less so if punishment is justified

the two, but it needs to be stressed that

brain underpins our

on utilitarian or deterrent grounds.

these are average differences only – here

behaviour, thoughts

Nevertheless, in the US there has been a

as elsewhere differences within groups

and

The

steady increase over the past few years

are often greater than any average

law is also, of course,

feelings.

in the number of cases where defense

difference between groups. Behavioural

concerned with human behaviour, albeit

attorneys have sought to introduce

genetic studies have shown that men

for rather different reasons, so have the

neuroscientific (or genetic) evidence. Is

with the L allele of the MAOA gene and

remarkable advances in neuroscientific

‘My brain (or my genes) made me do it’

a history of childhood abuse are more

research in the past 25 years made

a legitimate defense in a criminal trial?

likely to behave violently when adult.

neuroscience increasingly relevant to

Does this really mean that the findings

the law? Legal interest in neuroscience

One

neuroscientific

of a brain scan or of genetic screening

is evident from several special issues of

evidence might be relevant is the age

should serve to reduce a convicted

law reviews, and from the publication of

of criminal responsibility. In England

criminal’s sentence on the grounds that

such books as Michael Freeman’s Law

and Wales it is 10 – significantly lower

he could not help doing what he did?

and Neuroscience (OUP). In the US, a

than in most other European countries

If psychopaths think, feel and behave

number of universities teach courses on

or than in many states of the US. Brain

differently from others, then of course

the interface between neuroscience and

imaging studies have shown that the

these differences will be reflected in

the law, and the McArthur Foundation

brain continues to develop throughout

their brains. That is hardly sufficient to

has invested several million dollars to

adolescence, with the prefrontal cortex,

establish that the atypical nature of their

fund research in this area. In the UK, the

implicated in cognition, decision making

brain was the inevitable cause of their

Royal Society has just published a report

and

reaching

criminal behavior. Not all men with the

entitled Neuroscience and the Law as

maturity until the age of 20 or so. Such

MAOA-L gene and a history of childhood

part of its ‘Brain Waves’ project.

studies have also shown that there are

abuse end up as violent criminals: in

issue

impulse

where

control,

not

huge individual differences in the rate of

one large study, fewer than one third

Much of this interest has focused on

maturation of the brain. Does this imply

of such men had been convicted of a

the criminal justice system – and the

that 10-year-olds should not be held fully

violent crime by the age of 26.

Royal Society’s report also emphasized

responsible for their actions when they

criminal law. But neuroscience may also

break the law? At the very least, it lends

Rather than such evidence serving to

prove relevant to civil law – for example

weight to the argument that English

reduce a convicted criminal’s sentence,

to issues of capacity and disability.

lawmakers need to show just why the

one could argue that if neuroscientific

It is not impossible that advances in

age of criminal responsibility should be

or genetic evidence has established

functional brain imaging may, in the not

lower here than in other countries.

that certain people are more likely than

too distant future, help to determine the

others to commit crimes, then it might

level of pain someone is experiencing as

It is essential, however, to sound a note

be used to increase their sentence – or

a result of an injury.

of caution. Brain imaging studies have

in decisions about release from prison

shown, for example, that there are often

or parole. Such decisions inevitably

Within the criminal justice system,

differences between the brains of people

involve assessing the risk of reoffending,

some have argued that neuroscientific

categorized as psychopaths or with

and risk assessment is a notoriously

research has already cast doubt on the

anti-social personality disorder (who

imprecise enterprise. It is simply not

idea of free will, and must therefore

are disproportionately likely to commit

possible to predict with perfect accuracy

raise questions about the legitimacy of

violent crimes) and the more law abiding

that one prisoner will reoffend within

punishing people for actions over which

majority.

Such differences have been

a year of release from prison, and

they had no control. This might impact

found in the amygdala and orbitofrontal

another will not. Unsurprisingly, those


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35

who have to make these decisions err

another who deliberately lies. But there

neuroscience is used in court to the

on the side of caution: the 2003 Criminal

is good experimental evidence to suggest

benefit of all involved.

Justice

concept

that it will not distinguish between a

of indeterminate sentence for public

reliable witness and one who is honestly

Professor Nicholas Mackintosh FRS is

protection, which allowed a judge not

mistaken. By the same token it seems

professor emeritus in the Department

only to set a minimum prison sentence

probable that a defendant who, under

of

but also to require defendants to satisfy

persistent questioning, has repeatedly

University of Cambridge and chair of

the authorities that they would not pose

protested his innocence might end up

the working group that wrote the Royal

any threat if released at the end of this

believing he is telling the truth even if he

Society’s report Brain Waves Module 4:

sentence. These measures were initially

is not. Conversely, there is also evidence

Neuroscience and the Law.

designed to detain a very small number

that if people are instructed to use

of exceptionally dangerous criminals,

countermeasures they can fool the brain

but by March 2011 there were 6,550

imaging machine when lying.

people in prison under the terms of these

The law has a good record of taking

provisions. Even if, as Ken Clarke has

science on board – the most obvious

recently announced, these indeterminate

recent example being the use of DNA

sentences are abolished, the problem of

testing. There is no reason to doubt that

risk assessment (in for example parole

it will do the same with neuroscientific

decisions) will not go away. It seems at

evidence, and equally good reason to

least possible that neuroscientific or

believe that neuroscience will provide

genetic evidence might be able to reduce

some important revelations about human

the risk of getting these decisions wrong.

behaviour within the foreseeable future.

Act

introduced

the

Experimental

Psychology

at

But it is sensible, if boring, to end on a The

law

is

concerned

to

establish

note of caution.

whether people are telling the truth.

It is all too easy

Is the witness who claims to have seen

to

the defendant at the scene of the crime

the

telling the truth? Is the defendant who

coloured

protests his innocence in fact guilty? The

of

the

brain

polygraph, it is widely recognized, is not

produced

by

reliable enough to be used in a court of

fMRI

us

law. Might functional magnetic resonance

the

imaging (fMRI), which can detect local

of

changes in brain activity when people

thoughts. They do

perform a particular task, do a better job?

not, and at present

• Timely service

Several experiments have indeed shown

there

are

strict

• Monthly newsletter

differences in activity in certain regions

limits

to

what

of the brain, associated with cognitive

neuroscience can

effort and deciding between alternative

tell the law. That

responses, when students are asked to

may change, but

answer some questions truthfully and

at this point, our

others with a lie. Emboldened by this

priority needs to

success, two American scientists have

be to make sure

set up commercial fMRI lie detector

that advances that

companies,

NoLieMRI.

may affect the law

Neither has yet succeeded in persuading

are communicated

a court to accept their evidence – and

properly to legal

there

professionals

are

Cephos

good

and

reasons

to

remain

believe

that

beautifully images

show

secrets someone’s

skeptical. At best, fMRI might sometimes

so

be able to detect a difference between

it

a witness who is telling the truth and

appropriate,

that

when becomes

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