The Clarion Journal of Marling School Law Society
A great irony; is planning law well planned? Winter 2013
•Intellectual Property; Why All the Legal Haggling? •Secret Courts: A Retrograde Step •Legal Aid reforms-Even the government’s lawyers hate it •The problems of joint enterprise liability
The Clarion-Autumn 2013
Contents 1-A GREAT IRONY; IS PLANNING LAW WELL PLANNED? 3-SECRET COURTS: A RETROGRADE STEP 4-BEHIND EVERY GREAT MAN 5-SO YOU WANT TO BE A SOLICITOR…? 7-LEGAL PROFILES 8-ODDITIES WITHIN BRITISH LAW 9-DEFINING THE ACTUS REUS 10-A NOT SO HOLY TRINITY 11-SUSTAINABILITY THROUGH SENTENCING? 13-LEGAL AID REFORMS-EVEN THE GOVERNMENT’S LAWYERS HATE IT 15-STATING A CASE 16-INTELLECTUAL PROPERTY:WHY ALL THE LEGAL HAGGLING? 17-RUMOUR HAS IT… 19-SPOTLIGHT 21-JARGON BUSTER The Clarion-Winter 2013
From the Editor Welcome to the inaugural issue of The Clarion â€“ journal of Marling School law society. It has been many months since I first proposed the idea of a journal to the law society. The team were very positive in their response and we felt that it would be a good idea to have an informative and discursive legal journal aimed at our fellow Sixth Form students. Out of this The Clarion was born. It has taken a great deal longer to get to a stage where we felt comfortable to publish than expected. I must thank my team not only for their patience but also their guidance and contributions. It goes without saying that without them this journal would simply not exist. The study of law is fascinatingly diverse; as such this issue aims to show you the widespread nature of legal topics but is by no means exhaustive. There is something in the law that can be of interest to all of us. This is noteworthy given the fact that the law affects us all and is such a fundamental idea that it is impossible to escape its significance. I hope you enjoy reading The Clarion and I look forward to bringing you subsequent issues in the not too distant future.
Joe Marshall, Editor-in-chief
The Clarion-Autumn 2013 The Clarion-Winter 2013
A GREAT IRONY - IS PLANNING LAW WELL PLANNED? Sam Porter The battle between encouraging development and encouraging democracy within our planning law. Planning law is an often forgotten, but crucially important, aspect of our legal system. It concerns change in land-use and development. It determines whether a high speed rail line or a new garage can be built, where new power plants and wind farms are located and where travellers can camp. If laws are too restrictive, industry and commerce will suffer, but if they are too ‘laissez-faire’, the British countryside could quickly assume ‘Dark Satanic Mill’ topography. In essence, nowhere is the balance of restriction and legal freedom more contentious than in planning law. Why do we have planning law? The fundamental concept of planning law is the control of development and the management of changing land use. It initially arose as far back as Benthamite public health legislation in the mid 19th Century, with the leading elite concerned by the sprawling of the slum settlements in UK cities. Yet planning law only began to materialise into what we recognise it as today following World War Two. With a dire need for new housing to repair war-torn Britain, the Town and Country Planning Act of 1947 introduced regulation to ensure that the detriment of development, in particularly in environmental and social terms, was minimised. Nowadays planning law is recognised as perhaps the most contentious aspect of our legal system, we regularly hear of protests, campaigns and debates at local, regional and national levels concerning development issues, all of which stem from planning law. In the past 10 years, the government has introduced two significant foci into the planning system – localism and a new national planning framework.
Nonetheless, this new policy will not make the planning system more democratic or exacerbate efficiency and speed of development. Primarily, the overriding issue for prospective developers, whose enterprise the government must encourage so as to overcome the looming housing crisis, is not the simplicity of our planning law, but rather its clarity. A developer wants the law to provide definitive answers as to whether a proposed housing estate, for example, will meet the demands of planners. The NPPF does little to aid this required clarity. By amalgamating 44 previous documents into one, much detail has been lost, and as before, there is still a tendency to use the wishy-washy phrase ‘sustainable development’ to bypass contention. In essence, as the planning system becomes simpler, it becomes harder to apply contextually, which makes developers more reluctant to build for fear of breaking the law and leads to misinterpretation from local authorities, both potentially disrupting the UK’s ability to meet development demands. There is significant evidence to support this claim. For example, in Soham, East Cambridgeshire, a large, out-of-town shopping centre has been given the go ahead by the local authority, despite the NPPF calling for the protection of town centres. This has aroused condemnation of the national framework; it now faces accusations that it may not have any teeth and that the government is unwilling to enforce it properly. Archaeological groups have expressed concern that the NPPF’s simplistic, deregulatory nature could compromise the protection of undiscovered sites of historic and archaeological interest. Some critics are even more scathing, claiming that planning lawyers will be the only beneficiaries. Furthermore, On BBC Radio 4’s ‘Unreliable Evidence’ host Clive Anderson even questioned whether the NPPF was merely ‘pious hopes’, ‘general principles’ and a failure to ‘accommodate’ clashing points of view. Crucially, the streamlining of the planning process through the NPPF, which serves to encourage development, could be undermined by another recent government venture into planning law – localism.
nowhere is the balance of restriction and legal freedom more contentious than in planning law
The National Planning Policy Framework In March 2012, the National Planning Policy Framework (NPPF) was introduced. Its purpose was to ascertain the general direction for future development and significantly reduce red tape. It has been referred to as the ‘greatest shake-up’ in 50 years in planning legislation and replaced a plethora of previous documents with one all-enshrining policy; this demonstrates, for some, a huge increase in efficiency. 1
Localism within the system
The Clarion-Winter 2013
Planning law is not simply a mechanism to confront or accelerate development as it arises. It is much more complex than that. Planning, itself, is planned. In the UK, a multi-tiered, ‘plan-led’ system is in place, where localism plays a crucial role. Local Development Plans mean that local authorities can determine general development strategy and specific areas for land-use change. Naturally, close attention must be paid to the national strategy when such local plans are drawn up. Stroud District Council’s plan, for example, follows the national emphasis on construction of housing by having declared that a minimum of 2,725 new homes will be built by 2031. As with all other districts, Stroud is expected to maintain a supply of land for the next 5 years’ development. Yet since the 2011 Localism Act residents have gained a much stronger voice in planning in their area. This act meant that Neighbourhood Development Plans can be created by residents. The Localism Act 2011 was passed so as to make planning more democratic, allowing local people to draw up their own neighbourhood strategies and submit them to local authority, if they stand up to inspection and are supported via local referendum, such neighbourhood schemes become part of the local authority plan. This increased community involvement eases the formation of Local Development Plans and certainly helps gauge the attitudes towards location and appearance of new developments. Supporters of this localised approach claim that neighbourhood involvement helps local authorities find most balanced solution to planning issues. After all, planning law cannot and will not please everyone, but must provide the most suitable solution to development issues taking all parties’ views into account. Localism via neighbourhood schemes seeks to bring all concerns, whether private, public, economic or environmental to the fore. Neighbourhood plans are decided by referendum, illustrating how localism makes planning law more representative. By encouraging further public involvement, neighbourhood planning schemes have made this area of law more democratic. Nevertheless, critics argue that the encouragement of local involvement will be less effective in urban areas than rural areas, where new development often receives more resolute opposition. In addition, some claim that locals’ views will always disfavour development, so will simply lead to councils having to overrule public consensus against development to fulfil the necessity to build new homes. In other words, the increased ease of development provided by the NPPF could be completely undermined by local opponents to development gaining a greater voice via localism. These so-called ‘NIMBYs’ (“Not-In-My-Back-Yard” opponents to development) also put in doubt the suitability of such democratic freedom within planning law – after all, a high degree of consistency between local and neighbourhood development plans must be present, else the system will
fail, which means that local authorities, not residents, need the final say. The government has not intervened appropriately in planning law over recent years. Localism may perhaps add democratic value to the system but, ultimately development issues cannot be won on popular consensus alone. It is a sad but accepted fact that the party with greater economic resources nearly always wins planning disputes due to better access to legal advice and representatives. Thus richer societal cohorts and larger businesses have more power than smaller, less affluent parties, rendering the overall system irreversibly undemocratic. In addition, it is worth noting too, that in terms of planning disputes, it is certainly true to say that one good argument is worth a thousand bad arguments, which makes the system undemocratic. If I and all my neighbours were to object to a new housing estate on our street on the grounds that it would be an eyesore, the local authority would surely sigh to itself and, although development may stall, would rather favour development, so as to meet targets from the plan-led system. However, if one man were to find a colony of Great Crested Newts dwelling in the area proposed for development, the council would be forced into submission. In this respect, contention within planning law is seldom settled by public consensus and weight of support, but rather by quality of argument, and hence, the system itself is not democratic. Thus, localism’s attempts to install democracy within UK planning law are rather futile. Considering all of the above and particularly the criticisms of recent developments in our planning law, the necessary equilibrium between popular involvement and ease of development has not been struck. I would argue that providing residents themselves the power to create or contest development is counter-productive. Would we introduce local referenda for unpopular employment or immigration law? The answer is no, and highlights, at best, a lack of necessity for such an approach, and at worst, double-standards within our legal system. The reality, although hard to take for many, is that we are in an age of housing crisis. Homes must be built. Providing more legal power to the NIMBYs only serves to obstruct development targets. Ultimately, we elect governments and local and national levels whose job it is to settle planning disputes; with the local and national interests at mind, these elected representatives should be allowed to settle such issues independently, without further intervention from the electorate. That’s what we voted them in for, isn’t it? If such unnecessary power-sharing was removed, the streamlining of the planning system within the NPPF would not have been required - the government were forced into this new policy to overcome protectionist localism– so the grievances (i.e. raised by archaeologists) would be nullified. Planning law, in its current state, is a ticking time bomb. Perhaps only the explosive HS2 project will cause it to detonate into necessary amendment?●
The Clarion-Winter 2013
SECRET COURTS: A RETROGRADE STEP
The Justice and Security Act 2013, and why it is a retrogression for British justice. On the 25th April 2013 the Justice and Security Act received Royal Assent, paving the way for a major change in long-standing British principles and undermining the country’s historically-renowned justice system in the process. The Act, which was advocated and pushed through Parliament by Cabinet Office Minister Kenneth Clarke, will see closed material procedures (CMP), otherwise referred to as secret courts, (which involve the permitting of secret intelligence to be effectively hidden in court from all except the judge and “special advocates”), being used in an attempt preserve the integrity of the UK’s secret intelligence in exchange with other nations. What this Act will not preserve, however, are British ideologies that go as far back as the Middle Ages. When Magna Carta was introduced in the United Kingdom in 1215, it promised “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled. Nor will we proceed with force against him, except by the lawful judgement of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice.” Yet the secret courts can be seen as very much denying justice, because if the claimant is not aware of all allegations against his or herself, the parties will no longer be on equal footing and the advantage will undoubtedly tilt in the government’s . Balanced justice between the citizen and the state,
the rule of law and the right to a fair and equal trial have been engrained in the British justice system not only through Magna Carta but also habeas corpus; the first recorded use in 1305 and the Habeas Corpus Act 1679 only further going to show what detrimental an effect the Justice and Security Act may have on lasting British values. It has to be said, though, that there is an argument that CMPs are nothing new to the courts. Employment Tribunals, Special Immigration Appeals Commission hearings and Investigatory Powers Tribunals have all been conducted behind closed doors in the past, and secret courts may simply be the last resort to ensure that other nations continue to share their secret intelligence with the UK. However, one door nearly always leads to the next, and who knows, secret courts could be extended to include undercover police officers, deaths of suspects in custody, even military deaths. Increased secrecy of information will only result in more instances of deprived justice and cover-ups, such as the Hillsborough cover-up of 1989 that only recently was exposed; on the 12th September of last year. In this day and age we must strive to preserve the legal morals that the UK represents and has represented over centuries yet, with the passing of this and other such Acts, there will increasingly be a struggle to do so. ●
We must strive to preserve the legal morals that the UK represents and has represented over centuries yet, with the passing of this and other such Acts, there will increasingly be a struggle to do so.
The Clarion-Winter 2013
BEHIND EVERY GREAT MAN Luke Walpole Ah yes the tenacity of hope; having won out against seemingly shortening odds, albeit against a candidate so restricted by Tea Party support, as well as his own religion that he managed to offend almost the entire Female/Hispanic/Afro-Caribbean electorate of America, as well as the rest of the world, bar Pakistan… apparently. So what could Obama do if he has fifteen minutes to spare? If the first four years were full of broken promises, then 100% of Americans, let alone the 51% that voted for him, will be hoping Obama will be the influential president he always threatened to be. Just this year he steered away from the ominous brink of a fiscal cliff, but instead there were a selection of spending cuts. Belts all around America will be considerably tighter following the President’s budget. Now, even with my primitive economics knowledge, I know that isn’t good; but perhaps just behind the finances, the President needs to support the women who helped place him in office or his calls for hope and equality will exude hypocrisy, when analysing his disdain for Romney’s, shall we say, more provocative views on women’s rights. Now women tended to favour Obama. Whether that was the fact he was tall and spoke well, or the fact he wasn’t an archaic sexist, no matter - looking back, the President has repealed laws, created laws and promised to continue the fight for gender equality. The ‘Affordable Care Act’ was passed as law in 2010, and despite being lambasted in the US for being a dangerous step towards socialism, it gained Obama international recognition, admittedly some good, and some derisory, but it was the ‘Lilly Ledbetter Fair Play’ act that seemed to capture the minds of the women of America. It gave women
the undeniable claim to equal pay. Sothat was his first term, more of the same for the second you should have thought? Well you’d be right, but even the messiah of politics can’t single-handedly change America’s legal system, a mesh of federal law and state law that leaves even the brightest sparks in the land slightly confused. But what Obama does have on his side is changing attitudes. Ledbetter stood up in a manner that even Rosa Parks would appreciate and America is evolving away from a society where the laws of the land put men on an uneven pedestal. Of course, all this is hypothetical. Should the president press for legal reform then he will be up there in the Pantheon of Democrats, in the eyes of women at least. One man can’t change the constitution, but with women rising up the legal agenda every day, maybe the ‘Land of the Equal Opportunity’ can truly start living up to its name.●
The Clarion-Winter 2013
SO YOU WANT TO BE A SOLICITOR…? People always have questions about how to get a career in law, the qualifications you need and whether a career in law would suit them. Whilst the ‘answers’ to most of these questions can be found by a simple Google search the information online is often confusing and conflicting. Thus we sent our man, Joss Barton, to ask Juliet Workman, the Graduate Recruitment and Development Coordinator for Mayer Brown International LLP, what firms really look for. Do firms prefer prospective employees to have a degree in straight law or do they prefer conversion courses? Our trainee pool is wide and represents individuals of varying experiences and backgrounds. Last year we recruited from 28 different universities. Fifty-five percent of our trainee intake have studied non-law degrees, and some trainees have even had other careers prior to joining our firm. When getting into law do you look more for academics or personality? Are they both important? Both are important. We look for candidates who have not only a consistently strong academic record, including a minimum of a 2.1 degree (predicted or obtained) in any discipline, but also a wide range of interests and achievements outside their academic career. Additionally, we would like to see candidates who can demonstrate a drive for results, good verbal and written communication skills, an ability to analyse, good judgement, thoroughness, an understanding of client relationships and excellent interpersonal skills. Do you find law interesting? What most? Law is interesting and diverse. We service clients across a range of practice areas including Corporate, Finance, Insurance, Litigation and Dispute Resolution, Intellectual Property and Employment. Working together with our US, other European and Asian counterparts to serve many of the world’s largest companies, seeing different elements of law from across the world and how it affects our clients fascinates us. Our trainees are given high levels of responsibility, case management and client contact from an early stage and they're also offered secondments. So from day one, they can experience the most interesting parts of the law. How do people get into a law firm like yours? We recruit people from diverse backgrounds into a number of areas. If you’re interested in becoming a trainee solicitor, attend one of our open days which will give you a chance to meet some of our partners and talk to some our current trainees, or apply to join our vacation scheme and then finally, apply for a training contract. What would you suggest the best thing is students can do to prepare themselves for law at the age of 16/17 besides education? Try to get work experience, ideally in the field of law. This will not give you an insight into how law firms work but will help you decide if it's really for you and what path you 5
The Clarion-Winter 2013
want to take. Even if your work experience isn't at a law firm, you can still use the opportunity to develop relevant and valuable skills. Try to get involved in projects and activities outside of school/college. These all help to enhance your CV and will improve your chances of being successful when making an application. What happens after you pass a degree in law In-between university and being fully qualified? Once you have completed a law degree, to become a solicitor you then need to complete the Legal Practice Course (LPC). This usually lasts one academic year if studying full-time. If you received a training contract offer whilst at university, a law firm will typically provide you with financial assistance during the LPC. Upon completion of the LPC, you will then commence your two-year training contract with your law firm, as a trainee. At Mayer Brown a trainee undertakes four rotations during their training contract and these are known as 'seats'. Trainees at Mayer Brown must experience a transactional seat, a litigation seat and a client or international secondment. After the two-year training contract, trainees must apply for a role as a newly qualified solicitor. If successful, they become fully qualified and become an associate. How do you become a solicitor? Obtain a minimum of a 2.1 degree in any discipline. If this was a non-law degree, complete the Graduate Diploma in Law, followed by the Legal Practice Course. If this was a law degree, complete the Legal Practice Course. Join a law firm as a trainee on a two-year training contract. Qualify as an Associate. Briefly describe the work life of a solicitor, be honest though. This varies according to the level of a solicitor (Trainee-Associate-Senior associatePartner), but the primary focus for all, will be to ensure you deliver a standard and quality for your clients. What does the application process to firms consist of? If applying for a training contract at Mayer Brown: Online application form Online verbal reasoning test One-day assessment centre consisting of a group exercise, business analysis exercise, fact find exercise and an interview with two partners. If applying for a vacation scheme at Mayer Brown: Online application form Online verbal reasoning test Interview with Graduate Recruitment During the scheme, assessment for a training contract involves a business analysis exercise and an interview with two partners. How long does it take to make partner? Typically ten years, but it depends upon an individualâ€™s business case, experience and the opportunities available. How competitive is the profession of law? Very competitive so please make sure your application stands out and take every opportunity early on to get involved in different activities and interests and make sure you do well in your exams! The Clarion-Winter 2013
LEGAL PROFILES Luke Walpole
The Life and Times of Lord Alfred Denning; A Legal Titan “There are many things in life more worthwhile than money. One is to be brought up in this our England which is still the envy of less happy lands.” Shakespeare? Churchill? No on both accounts, as these are the rousing, patriotic words of a certain Alfred Denning. Known to the masses as the “People’s Judge”, Lord Denning lived 100 years before dying peacefully in March 1999. For the “common man”, Denning was a constant reminder that the law was there to protect, not to actively incarcerate. In a career that lasted from 1922 through to the 1980s, Denning held many of the key roles in the Judiciary and became a household name over the ‘Profumo Affair’ in the summer of 1963. His 70,000 word long report highlighted his dedication and insatiable desire to see that justice was always done, and deservedly earmarked him as one of the defining characters in the legal fraternity in the 20th century. Born in the serene settings of Whitchurch in Hampshire, Denning was the youngest of six and the son to Charles and Clara. After securing a scholarship to Andover Grammar School, the young Denning excelled academically and even surpassed the knowledge of his teachers in his first passion; maths. As the First World War began its blood-soaked course, Alfred was awarded a £30 a year bursary to study Mathematics at Magdalen College, Oxford. An achievement in itself, but what is even more impressive is that he achieved this aged 16. Even at a relatively young age, schoolmasters and friends alike recognised Denning’s undeniable genius. With the world as his proverbial oyster, the calls of King and Country became too great and Alfred found himself immersed in a war that he had actively chosen to become involved in, as a Doctor’s note was due to have kept him well clear of the fields of France and Belgium. Returning unscathed in 1919, continued excellence in Mathematics saw him take a job as a teacher at Winchester College, but the lure of teaching held no great weight for Denning, and, following a visit to a courts in 1921, his studies moved to Jurisprudence. Before finishing his examinations,
Denning was already employed in the humble surroundings of 4 Brick Court in Oxford. The following 17 years saw Denning rise up the ladder before eventually becoming a barrister and finally part of the King’s Counsel in 1938. Another war came, and by 1944, Denning had been knighted and was a fully established member of the High Court of Justice in the Probate, Admiralty and Divorce Division. A common theme for Denning was not to let sleeping dogs lie and be contented with where he was, and as a consequence, 1948 saw a new post for him; Lord Justice of Appeal. After 9, at times tumultuous years, Denning took on yet another new mantle as a Law Lord. A prolonged period of doubt had preceded this announcement, as he had felt that taking this role could deprive him of the chance to take over one of the two roles he truly desired; Master of the Rolls or Lord Chief Justice. In spite of these tentative steps, Denning’s ambitions were eventually realised and in 1962, the Lord took over the mantle as ‘Master of the Rolls’, a post that would come to arguably define him. 1963 saw Harold McMillan, Prime Minister of the time; request that Denning lead an inquest into the resignation of Secretary of State for War John Profumo. What followed was a report that fully explored every minutiae of Profumo’s affair with the showgirl Christine Keller and catapulted Denning into the public eye. The premise of the whole affair seems all too current; politicians involved in sordid affairs giving credence to tumult in the heart of Westminster. All of this perhaps indicates how Denning was a constant in the ever evolving political and legal landscape. Although retirement came in the 1980’s, he remained a constant voice of reason, and at times controversy, in the legal profession; his reaction to the ‘Birmingham Six’ in 1988 the most notable of reminders. Following an appeal by the ‘Six’, Denning point blank refused and stated with breathtaking aplomb that “If they won, it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and
dedication and insatiable desire to see that justice was always done
The Clarion-Winter 2013
that the convictions were erroneous.” This became all the more provocative when the men were later acquitted of all crimes. Although his body began to deteriorate, his brilliant mind remained and so, in 1984, Denning returned to the place where it all began; Whitchurch. Forthright, opinionated, and at times provocative, Denning was never too far from the eye of the storm. However, he arguably encapsulated all that is good about the British. A fierce advocate of the law and the rights of the common man, Alfred Denning combined unquestionable intellectuality with a burning desire to always make decisions based upon
sound moral reasoning; “Without morality there is no law” he remarked. Having lived a life with two happy marriages, Denning died at the age of 100 at Hampshire County Hospital, and as tributes poured in from judges and politicians alike, the “People’s Judge” was fêted for one last time. Put simply, without question, his legacy will forever be that he helped to shape the legal fraternity we see today.●
ODDITIES WITHIN BRITISH LAW Sam Porter Have you ever carried a plank along a pavement? Shaken a rug or slid on ice or snow in the street? If so, you could be charged with a crime! Despite the efforts of a statute law revision team since, who have abolished 2,000 obsolete laws since 1965, there are still several anomalous laws forming part of our constitution. In this article we look at some of the seemingly more absurd ones. “All whales and sturgeon caught on the British coast are property of the crown” Unlike some other seemingly absurd laws, this piece of legislation has proven relevant to recent events, as in the case of Robert Davies, a fisherman from Llanelli, who was left in a bizarre situation after catching a 120kg sturgeon in Swansea Bay in 2004. Mr. Davies promptly sent a fax the royal household to offer the sturgeon to Her Majesty the Queen, but was pardoned and told to ‘dispose of it as he saw it’; the fisherman decided to offer the ‘catch of his life’ up for auction when he landed in Plymouth. Yet Mr. Davies was flabbergasted when the £700 sale of the fish was halted by police and DEFRA officials; unbeknown to Mr. Davies, the sale of sturgeon is in
fact illegal, as they are listed as endangered species. This ultimately meant that Mr. Davies had contravened UK law, despite abiding by the seldom known royal ownership decree placed upon sturgeon with the Prerogativa Regis of 1324. Eventually though, and quite fairly, no charges were brought upon the unfortunate Mr. Davies. “It is illegal to handle salmon in suspicious circumstances” This law was passed in 1986 as part of the Salmon Act, to regulate Salmon dealing in Scotland, England and Wales. To our knowledge the three month prison sentence this crime carries has not been used. The Section 54 of the Metropolitan Police Act of 1849 gave rise to laws which nowadays seem very bizarre. The purpose of such laws was to eradicate what were seen as ‘nuisances in thoroughfares’ in the early 19th century. Examples include: “It is illegal to beat or shake a carpet or rug in any street. But it is legal to beat or shake a doormat in the street providing you do so before 8am” “It is illegal to carry a plank along a pavement”●
The Clarion-Winter 2013
DEFINING THE ACTUS REUS Jafar Saeed The actus reus is a staple element of criminal law, being inextricably linked with the mens rea, together comprising the backbone of what constitutes a crime. Having been derived from Sir Edward Coke’s famous Seventeenth Century statement: ‘actus non facit reum nisi mens sit rea’, actus reus attempts to define the physical action of a crime, literally translating as ‘guilty act’ from Latin. Contrasting with the mens rea, which comprises the mental element of a crime (look out for the defining the mens rea article next issue). However, it would be a mistake to delineate the actus reus as simply an action taken by the accused that forms the practical side of the crime. Sometimes, the actus reus includes ‘states of being’ rather than actual actions, e.g. being in a state of drunkenness in a car (as in Duck v Peacock 1949), particularly in state-of-affairs crimes. Similarly, the actus reus includes possession (of an illegal substance/item). Although it could be argued that being in a certain state or being in possession of something is as a result of a physical action taken by the accused, and therefore the actus reus as an act, is still present (a conclusion reached in the 1843 American Regina v Dugdale case). Also, on one hand, involuntary actions (e.g. spasms or forced actions) are excluded from the definition of actus reus whereas omissions (i.e. failure to act) are included.
This is a serious deficiency in how the omission aspect of the actus reus is defined. It contradicts the very moral foundations upon which the criminal law is based; the entire justice system is based on the protection of society and the obviation of acts deemed to be objectively morally contemptible. Also, it discourages members of society from taking actions to help others and prevent criminal acts. If the duty-to-act principle is extended to all of those who are able, and under some form of moral responsibility to take action to prevent a crime; then it will stimulate individuals to do so, under fear of prosecution. (This is similar to the role of strict liability offences in encouraging individuals to take precautions to prevent a possible consequence of an unintended crime.) Defining a culpable action may not be an as laborious process as attempting to prescribe a definition to the enigmatic mens rea, yet the disparity between its simplistic literal definition and its true meaning is somewhat surprising. Unforeseeably, the signifance of Sir Coke’s statement on not only English Law, but legal systems around the world is immeasurable; as is the importance of placing precise definitions around arguably the most crucial aspect of Criminal Law, the actus reus. ●
Omissions In effect, the actus reus encompasses all of the components of a crime with the exception of the mens rea. This broader definition allows room for ‘omissions’ to be included within the actus reus title. Rather than constituting an action that directly results in a crime; an omission is rather the lack of an action that, by its inactivity, has caused a crime to be committed. It is worth noting here that an omission only becomes an actus reus if the defendant has a duty to act. Where an individual fails to act but is not in a position whereby he is duty-bound to act he may not be criminally liable, even if the failure to act was morally indispensable; in other words even if by moral standards an individual should act in a certain situation but is not required to act under law, then his failure to act will not cause him to be liable.
The Clarion-Winter 2013
A NOT SO HOLY TRINITY Luke Walpole
How does an ever-evolving Judiciary fit into the British Constitution? There’s something decidedly British about being different. Whether that’s a fascination with the weather, the love of an underdog or in this case, the structure of our Constitution, there is certainly a common theme. To strip the issue down, it must first be made clear how most ‘Democracies’ (used loosely in some cases) operate. Three houses of power, the executive/government, the legislature and finally the judiciary all perform their own functions. Across the Atlantic, they have a separation of powers, all three stand alone, whereas here, back in Britain, the executive and legislature are fused, leaving the Judiciary out on its own. Whilst other governmental organisations, notably the Civil Service, have been accused of inexorable politicisation, it is apparent that the judiciary has taken major strides in the opposite direction. A loss of power? ‘Surely not!’ I hear the bob-wigged community cry, but the facts do not lie; following on from the 2005 Constitutional Reform Act it is highly arguable that the judiciary’s prominence has been severely compromised. The Law Lords? Gone. The Lord Chancellor? Given a new title – Lord Chief Justice – and shifted to a more logistical post. A newly created Supreme Court and Judicial Appointments Commission are both independent, and thus have seemingly broken a long-standing tie between the legislature, notably the Lords, and the Judiciary. However, one thing still keeps the three houses of power indubitably linked; Judicial Review. As long as the appeal is based upon grounds of, as Lord Diplock described, ‘Illegality’, ‘Irrationality’ or ‘Procedural
impropriety’, then a claim can be made against the government, as long as it is not regarding primary legislation. In spite of the convoluted description, the reality is simple; judicial review is arguably stagnating the executive’s legislative power. In 1975, there were 160 cases of Judicial Review, whereas in 2013 it totalled a gargantuan 11,400. All this has put strain on relations between Whitehall and Westminster, as the ominous premonition of ‘Judicial Review’ makes policy creation come under enormous scrutiny. So what’s the answer for the Tories? In November 2012, at the CBI, David Cameron bullishly stated "If Christopher Columbus had an advisory committee he would probably still be stuck in the dock." It appears that someone’s not happy. Moreover, if Cameron is able to get his way then the Conservatives will be able to get out those trusty metaphorical scissors and cut to their heart’s content. But the reality is that the red tape is becoming too thick, so, in spite of calls from Cameron to “crack down” on “time wasting”, the truth is that it will be near impossible. The executive, judiciary and legislature will always be linked, but in the current day and age, the executive is undoubtedly exacting dominance over its ubiquitous counterparts, although the Judiciary is seemingly having the last laugh. ●
The Clarion-Winter 2013
SUSTAINABILITY THROUGH SENTENCING? Sam Porter Between March and June 2013, consultations were under way for a revolutionary change in the way environmental crime is treated in this country. Potentially, these consultations could form the foundations of a future of green economic growth, where British boardrooms no longer forsake the environment for commercial gain. The Sentencing Council began considering draft guidelines for the restructuring of sentences of environmental crimes, aiming to ensure that punishment is more severe (particularly financially) and acts as a better deterrent, and to provide clarity and hence consistency in courts across England and Wales. Katharine Rainsford, magistrate and Sentencing Council member, said: “We're improving guidance for courts to help ensure consistent and appropriate sentences for offenders, particularly for corporate offenders who can be guilty of the worst offences. These offences are normally motivated by making or saving money at the expense of the taxpayer. Our proposals aim to ensure that sentences hit offenders in their pocket.” The Basics So is this another case of wishful thinking? Or could these new guidelines truly foster improved environmental compliance from companies and individuals alike? I am pleased to so say that, on paper, the latter seems more likely. Most significantly, fines for environmental offences will be increased to previously unparalleled heights, should the proposals materialise. For the most serious offences, fines of £2 million could be imposed. As if to send out a clear message over the severity with which environmental crime is now viewed, some fines will even exceed health and safety offences involving human fatalities. In addition, the Sentencing Council is encouraging magistrates to more often administer the highest levels of fines for serious
offenders, likely affecting corporate bodies most. Simon Colvin, an environmental law expert from Pinsent Masons, claimed that “the pre-text for this fundamental shift is the currently limited availability of any guidance for the sentencing of environmental offences, the fact that the current levels of fines are seen as not being high enough, and also that there is too much inconsistency in fines for similar offences”. In fact, insufficient guidance has meant that, in the past, courts had to rely on case law to set appropriate fines for such crimes. By issuing these new guidelines the Sentencing Council is hence overcoming two endemic issues within our judicial system – the lack of clarity and the lack of severity for sentencing environmental offences. The Nitty-Gritty The denouement of the consultation phase was a proposal for a tariff based system including 9 steps, of which the first, second and third are most informative to any nonexpert in the complexities of environmental sentencing. Step one requires the categorisation of the offence, by evaluating both the harm caused and the culpability of the offending body. Enter the Environment Agency, everyone’s favourite quango. The EA’s Common Incident Classification Scheme is used to assess harm as deliberate, reckless, negligent or low/no culpability. This means that the new guidelines place increased reliance on the EA, which has been met with the requirement that greater transparency is needed in the harm-classification process. The guidelines mean that the Agency must be able to give clear reasons for its decisions; this is particularly crucial when there is no physical harm in a case, but rather a ‘risk of harm’, which, naturally, must be classified in a more subjective way.
these consultations could form the foundations of a future of green economic growth, where British boardrooms no longer forsake the environment for commercial gain.
The Clarion-Winter 2013
In Step two, the size of the company is assessed, so that the starting point for fine magnitude can be determined. Using the Companies Act 2006, businesses are categorised as large (turnover of more than £25.9m), medium (£6.5m - £25.9m) and small (less than £6.5m). This raises an immediate question over the indicator used to assess size; companies can have high turnover but low profit, and although this can be taken into account when the case goes to court, this remediation is unlikely to make up for a high size classification. In fact, step two is rather contentious, as will been show later. Step three simply allows for the magnitude of fines to be increased or decreased due to aggravating or mitigating circumstances, respectively.
much reduced fines due to their public-service function, quasi-publicly functioning businesses, such as utility companies, face no reductions. This could threaten the efficacy of the guidelines as public services are put under threat. Last of all, although the Sentencing Council hopes that higher fines will make businesses take environmental issues more seriously, but it is worth considering that for lesser offences, fine levels will barely change, nor will there be an alteration to the proportions of offenders receiving community or prison sentences. So is the Sentencing Council being as aggressive as possible, I ask? The toughest approach would certainly be to send more offenders to prison.
Potential Flaws Now, it’s fair to say that up to now, the new guidelines appear promising – even exciting – as catalysts for a new age of environmental sustainability within our courts. Yet, as ever, there are certain flaws that must be highlighted. Above all, it only applies to sections 33 and 34 of the Environmental Protection Act 1990, regulation 12 of the Environmental Permitting (England & Wales) Regulations 2010 and section 1 of the Control of Pollutions Act 1989. This is a narrow field and if these new guidelines are to be the foundations of future sustainability, then surely they must be applied more widely. Furthermore, the guidelines cannot simply be used as a benchmark for the sentencing of other similar offences without further consultation. The Justice Committee has reported that its single greatest concern with the Sentencing Council’s proposals is that this “leakage” could take place without specific guidance being given, causing inconsistency within the sentencing process. Step two has raised many eyebrows, particularly within the Justice Committee. As aforementioned, the determination of company size and hence fine level via turnover analysis is rather divisive. The JC has labelled this as “simplistic”, and have voiced concerns that magistrates will require financial training so that commercial finance data can be interpreted. Doubts have been raised over the guidelines’ clarity in explaining whether size-classification takes into account whether the company is part of a larger group, or considers the offending body alone. Simon Colvin also points out that although charities and local authorities are likely to face
For me, this is a noble step in the right direction. Without a doubt, companies and individuals will pay greater heed to the environment now that they know they could face fines of up to £2 million. Yet, to foster a greener future, we need a ‘carrot and stick’ approach that is more sureof-itself, more severe on those who do wrong. I believe we should elevate all fines, not only those for the most serious offences, and send more environmental criminals to prison. This is the stick. Couple this with further incentive for greener approaches to business and the home, such as more financial reward for using or generating green energy, and perhaps the balance can be struck, and Britain may sustain its green and pleasant status, both in mind and form.●
perhaps the balance can be
struck, and Britain may sustain its green and pleasant status, both in mind and form
The Clarion-Winter 2013
LEGAL AID REFORM
GOVERNMENT’S LAW Joss Barton Government Justice Secretary Chris Grayling has set out plans recently to cut the yearly legal aid budget by £220 million; as it stands the cost of legal aid in criminal proceedings is £1.1 billion. Under the reforms, individuals with an annual disposable income of £37,500 or more will no longer be automatically entitled to legal aid. Further to this the Justice Secretary is proposing competitive tendering among solicitors firms for contracts to represent defendants in police stations and magistrates courts. With these cuts proposed to come into effect soon, it’s easy to see why everyone is up in arms at this continually eroded right to a fair trial. However without wishing to belittle the importance of legal aid, a bit of perspective is needed, as the headlines don’t tell the full story. Despite common perception, the UK’s legal aid system is one of the most sophisticated and well-funded in the whole world. As of September 2012, within Europe the UK tops the legal aid charts. Northern Ireland, more specifically, comes in 1st with a highest total spend on legal aid of €53.5 per inhabitant. England and Wales follow closely in 2nd with €45.7 spent per person. This may not seem much to many, but compare it with the EU average of a mere €7.7 and we seem rather well off, so for some it may be hard to see what all the fuss is about. However we must not lose sight of what is at stake here and become complacent. Just because we have the most generous system in Europe doesn’t mean that it is sufficient. The proposed cuts to the legal aid system are said by many to be disastrous. Numerous changes look, at least, as if the judicial system will be newly pointed in the direction of state control and eroded justice. One of the foremost issues is the reduction in legal aid for, and opportunities for, judicial review, the main way in which the lay person may challenge the decisions of the executive. The number of applications for judicial review rose from 160 in 1974 to 4,250 in 2000, before almost tripling to 11,000 by 2011. So clearly there is the
demand the challenge the government. Whilst it is true that many of these are just time wasters that are ‘hating’ on the government, (of the 7,200 applications for immigration and asylum review considered by the courts in 2011, only 1,200 were granted as having legitimate disputes) greatly reducing the opportunity to challenge government decisions looks at least like the state taking control. The second grievance of opponents to the cuts (most people) is the loss of good quality legal representation for suspects in criminal cases. By setting the legal aid exclusion bar at a minimum disposable income of £37,500, many are worried that the tighter meanstested system will result in only the wealthy being able to afford representation in the Crown Court. If you want representation and you, or now, if your partner earns more than £37,500 you must either face court alone or pay for a lawyer privately. If found guilty you will not be able to recover any legal fees but if a jury finds you innocent the government will reimburse you as if you had legal aid, but there’s a catch. Because you had to go private there are certain legal overheads that are unrecoverable from the state, inflicted by the state. So as you’re sitting in court don’t forget that you also need to worry about the vast sums of money riding on the jury, quite apart from whether you potentially go to prison…no pressure. Thirdly, better value for money is trying to be achieved by the government by offering out competitive tendering contracts to large legal firms. It is estimated that this will cut the cost of legal representation by 17.5%. Whilst economical, this will destroy the smaller practices that rely on publically funded work. These ‘aid lawyers’ are by no means well paid but it is generally regarded that they didn’t go that route for the money; they supposedly care about the people they represent and often work unpaid overtime. By effectively privatising and commodifying legal representation, the government will have successfully removed the
The Clarion-Winter 2013
MS - EVEN THE
WYERS HATE IT
The European Commission for the Efficiency of Justice
willingness of lawyers to achieve a desirable outcome for their client, when their only motivation is a salary and group profits. Finally and this is almost unbelievable, Grayling proposes to re-jig the whole system so that clients who plead guilty fetch bigger fees than those who insist on taking their case further. Now if there was ever motivation for a lawyer to act in his own interests, there it is. It seems then that the
government doesn’t want what’s best for the people, now your lawyer doesn’t want what’s best for you and you can’t be blamed for not knowing yourself. All in all, a suitably disturbing set of consequences, all for £220 million, which in terms of cuts is not even that much anymore. Just to put it in perspective for you that is 1/8 of the yearly revenue of the top legal firms in the UK. ●
The Clarion-Winter 2013
STATING A CASE Luke Walpole
In a saturated Televisual market, does ITV’s ‘Law and Order: UK’ make compelling viewing, whilst still being accurate?
“In the criminal justice system, the people are represented by two separate yet equally important groups: the police who investigate crime and the Crown Prosecutors who prosecute the offenders. These are their stories." Wonderful start. Solid. Bravo to the silver screen for putting forth a legal production based upon fact. These are of course the opening lines to every episode of ‘Law and Order UK’. Although not Shakespearean in tone these words do accurately portray the justice system, but how do the ensuing 55 minutes of television fair? Well let’s start with the positives: A crime? Check. A Killer? Check. All seems well. In fact it’s incredibly refreshing to not have an outwardly nefarious villain; instead, we have real people with perfectly plausible stories. If any ‘criticism’ could be levied at legally themed programs in the past, it’s that hyperbole is overused; more ‘Hammer of Thor’ than a ‘Deft touch’. However, herein lays the conundrum with legal shows, the tussle between reality and viewer enjoyment. The protracted nature of court cases is simply impossible to replicate, but the alternative can sometimes be to over-rely upon extravagant speeches and dastardly pariahs. Fortunately ITV’s latest ditty is safely negotiating the tightrope; balance has been achieved. ‘Law and Order’ is therefore ‘watchable’, enjoyable even, and the crux of the matter is that it is reliable. Liaison between the police and junior solicitor is faultless, and you could also argue that the sheer work that the junior takes on is just as accurate. The wrangling of charges between defence and prosecution is equally believable, as well as the negotiation over pleas. Moreover, the emotional aspect is pitched just right. Guilty parties are given time for retribution and justification, without wandering into sanctimonious territory and the detachment of the barristers and solicitors from the emotional side of the case is admirable and overall an accurate reflection. Seemingly, there are a plethora of big ticks going next to this program, and the viewers seem to agree. Viewing figures have hovered around the 5 million mark for the past
4 years – no mean feat for a Sunday night slot in a digital age where the latest American blockbuster is only a click away. This success must be partly down to the use of present-day, real ethical and moral issues; the whole ‘grabbed from the headlines’ approach certainly makes the show all the more accessible. Although the show’s main characters have changed, you may even say that Peter Davidson’s introduction was a ‘regeneration’, the core writing and production team has mercifully stayed the same. This program is indeed formulaic, as is its American predecessor, but perhaps that proliferates more truth than any of the above positives. A crime is committed, the police gather evidence, they arrest a suspect and pass over the baton of justice to the legal fraternity; nothing really deviates from this narrative. But for all these positives there must be some negatives lurking in the cracks. Once again the main stickler is time; but this, as aforementioned, is an unsolvable problem. However, for all those aspiring lawyers who look upon these programs for inspiration then don’t be fooled. The life of a lawyer isn’t all pub lunches, the Old Bailey and consistently having to deal with dramatic twists and turns. Although long nights are sometimes highlighted with a cursory yawn and a turning off of a desk-lamp, these often feel like a token gesture, when the reality is that it is the status quo. These issues in the show however, are seldom, if ever, a niggling pain. Therefore, ‘Law and Order UK’ is a brisk and breezy tour of a timeline of a case. As far as these shows go, it is near the pinnacle; whether that’s due to the amicable cast, figure headed by the charismatic Bradley Walsh, the gripping plots or the accurate picture it paints of the synergy between police and chambers. So rather than committing casual felonies on your days off, why not watch a few of these stories, you may just learn a thing or two. ●
The conundrum with legal shows is the tussle between reality and viewer enjoyment.
The Clarion-Winter 2013
INTELLECTUAL PROPERTY: WHY ALL THE LEGAL HAGGLING? Joe Clarke Intellectual property disputes are becoming rather trademark... No sooner does a day go by than a new trademark dispute involving a large, well-known company presents itself, with usually protracted if not disastrous consequences for one or both of the companies. The aforementioned companies, more often than not, become embroiled in lengthy disputes that last for many months, some having to resort to throwing very large sums of money about to settle the argument. This was shown as recently as last year when Apple had to shell out $60 million (£38m) to resolve the dispute with Chinese firm Proview regarding rights to the name “iPad” – something so trivial yet so increasingly common in modern times. So why are there day-to-day trademark battles? For a start, intellectual property law can be fairly confusing, especially given the ambiguity surrounding when a name can and can’t be used in different contexts. Take a large company, for example Coca Cola. If another, smaller company started making a model of pen called the Coca Cola, the sheer magnitude of the Coca Cola company would dictate the public to think the actual Coca Cola company was branching out into stationery, rather than another company using the same name. As a result, the Coca Cola company would certainly win a lawsuit against the pen model makers need there be one and thus the name would not be allowed. However, if Coca Cola started making a drink called the Linc (hypothetically) the general consensus would not be that Linc Pen and Plastics Limited were branching out into drinks, and the name would more likely remain. The choice of words in the trademark can also lead to confusion regarding whether it would be permitted, which ultimately would lead to a dispute down the line. The trademark name cannot include a location if it is to be branched nation or worldwide (hence why Kentucky Fried
Chicken’s trademark is shortened to KFC) and more often than not, cannot contain a word that would potentially describe the product to which the trademark is applied (for example a ruler company could not trademark its name as ‘Bendy’ as the public would naturally interpret the name as relating to the bendiness of the ruler; but a drinks company perhaps could, as there is no obvious affiliation between drinks and bendiness). Finally, a trademark could not use a word so common that it would definitely need to be used by other companies sometime in the future. Such specifications can lead to disputes as there can be many different interpretations of all the above; what constitutes a common word, whether a word actually is describing the product, and so-on. Aside from ambiguity, another reason for wave upon wave of disputes is without doubt financial. Smaller companies can benefit handsomely from such disputes, with many critics accusing Proview of deliberately trying to cash in on the success of the iPad before the agreed $60m settlement. Though, as all the moral stalwarts breathe a sigh of relief, this is not always the case. Only this year, renowned whiskey company Jack Daniel’s reacted to the news that their famous whiskey label was being used on the cover of a book (Patrick Wensink’s Broken Piano for President) by sending a gentle and polite letter, only asking that the cover be redesigned when reprinted (even offering to pay a reasonable amount towards the cost of doing this). With all the many hostile intellectual property disputes flying around the globe at present, class shown in the field such as that demonstrated by Jack Daniel’s is refreshing; and maybe with more of it, trademark disputes would not be so trademark.●
Data from the Intellectual Property Office shows the increase in trademark applications over the last 7 years
The Clarion-Winter 2013
RUMOUR HAS IT… Joss Barton and Joe Marshall Coming from our own personal experience, the road to deciding whether to pursue a legal career is riddled with rumours, some good and some fantastically bad. However you need not fear, many are unfounded and in most cases what you see is what you get in legal employment. Having spent several weeks between us in large city firms and chambers as well as small rural practices we can cut through the myth and show you what your day to day life as a solicitor or barrister would really be like.
Solicitors Of course the way things work will vary wherever you go within the law, but people generally seem less worried about entering small rural practice than they do heading for the legal factories in London. So, let us start with perhaps the most concerning aspect of all, the hours. There’s no getting away from it, if you want to work a normal 9-5 job, DO NOT become a solicitor, you will struggle to leave at any time before 7-8 at best in most city firms. There is no uniform guide to potential hours and a selection of factors will likely determine your fate, first among which is your level of seniority. Your hours will probably be most structured when you are a trainee. There will be a set time, normally 8.30-9ish that you will need to be in, and then depending on your supervisor, your leaving times may be set at around 8pm or whenever workload dictates. During your training contract you can also change your hours by going on client secondments, often to a bank. This will normally be for 6 months and more often than not gives you some interesting work and some set hours that are more humane. Once qualified as an associate, hours go up. You will probably be taking a more instrumental role in deals and will thus need to lead and organise everyone else. Most associates have firmwide target hours that can range from 1200 in some smaller National firms to 1800/2000 in some large American firms. The average for London city firms seems to level out at about 1600. Only when and if you become a partner will hours change. Having achieved the holy grail of partnership, you are under less scrutiny and may not have any immediate supervisor. The type of work undertaken by partners also allows for a more realistic day. You will take a more managerial role on deals, proof reading work of trainees and staying in touch with the client which rarely requires all-nighters. Having carefully
observed the movements of partners, most rarely arrive in before 9 in the morning and often in quiet periods they leave in the middle of the day or early afternoon. It is worth mentioning that as a partner, working on weekends is a rare occurrence. On the whole the stories you may hear about night after night at the office are not untrue, it can happen, most firms provide overnight accommodation for those that don’t make it home. But do not despair, it is not a regular occurrence and you may use the accommodation once or twice in your time at a firm and whatever you hear the hours, though tough, are more manageable than they sound, for the determined individual. Apart from seniority, your practice group is a major factor in the hours you work. It’s pretty simple, if you want regular hours, Litigation or Real Estate is the department for you. Departments like this will give you more consistency in your day, litigation works to the ticking clock of the sometimes unbearably slow court system, and it is rare that Real Estate deals will be completing across time zones and at unsociable hours. If you, like most, want to specialise in corporate work, hours will be mainly deal driven. Thus if you have a deal completing at 8 in the morning, you will be up all night-no exceptions! The international aspects of law, especially commercial work, mean time differences have an effect on which hours you work. Despite this obvious sacrifice, in quiet periods such as the summer, hours can be particularly favourable in this deal driven sector. Working hours, then vary hugely and if you are clued up (which hopefully you now are) you can make choices that will give you a good work/life balance in the long run. Pay, is one of the more popular aspects of the law, yet again however, many people are misinformed on this topic. It really is hard to know, unless you work at the firm
The Clarion-Winter 2013
however some firms clearly pay more than others. Typically the Magic circle firms are the highest payers in the UK, with Slaughter & May topping the tables for years now. There, full equity partners can earn in excess of £1.9 million. On the other side of the pond, some American firms like Sullivan & Cromwell pay their equity partners the equivalent of over £2.5 million. So, if its pay in the long term you are looking for, you now know where to go. Other firms’ pay peaks earlier rather than later; smaller firms can often offer great surprises early on. Bingham McCutchen, one of the smaller (still large) American firms, pays its newly qualified solicitors £100,000, which is pretty much as high as you will find anywhere. Unfortunately, pay can’t get anywhere near that during your training contract as it is capped universally at £40,000 in the UK. Despite that, a starting salary out of university of £40,000 is nothing to turn your nose at, not to mention the city firm’s generous grants for the GDL and LPC. So, pay is generally good in most places you go in the city, if it’s rural practice you’re looking for, don’t expect anywhere near this amount. You will be comfortable but not rich if you work in a high street solicitors. To finish on some good news, trainee retention rates are generally going up. This year the average across city firms was 83% of trainees being kept on after their contracts. The previously mentioned Slaughter and May surprisingly posted the highest rates of them all, keeping 90% from their last February intake. So it seems things are starting to look up for the legal world.
Barristers When you think of barristers you think of people in robes and wigs standing in court. Whilst this does happen the biggest myth is that this is all or even most of what a barrister does. Modern barristers spend very little time in court and this is the first thing you need to realise before deciding on a career at the bar. You will inevitably spend time fighting for your side inside the courts however you will do so much more besides. A lot of the work a barrister does is solitary, whilst they often ‘team up’ for big cases much time is spent alone in your office pouring through files, reading up on case law, corresponding with clients or the opposition and writing submissions. If you think that by becoming a barrister you will only be in court you are sadly and greatly mistaken. Many people expect barristers to have regular hours dictated by court opening times and during a trial this is the case. However as the majority of barristers-some 85%- are self employed they have no set hours and can at times work when they like. Whilst this may sound easy
the hours are often unpredictable and long however you have a choice as to how much work you take on. The hours also very often centre on what needs to be done. This means in busy periods like the weeks precluding a trial it would not be unusual to work through the nights and also at weekends but when you are less busy many barristers arrive at their chambers at 9:00 and are gone by the early afternoon. This level of spontaneity is especially prevalent in areas of international law where time zones may dictate conferences in the early hours of the morning or you may need to plan a trip abroad a short notice, thankfully larger chambers usually have clerks to help with this. Most people think that all barristers earn a lot of money and this is what attracts them to the job. However, whilst many barristers do have high salaries just like with solicitors your pay depends upon where you are working and what type of work you take on. If you work in the Crown Prosecution Service or Government Legal Service you can expect to be paid anywhere between £30,000 and £90,000 depending upon your experience and success rate. As we have already seen though, most barristers are self employed and work in chambers. This means that they often have no guaranteed earnings and thus limited financial security. Whilst you are studying for your pupillage the minimum that you can be given guaranteed earnings of, as set out by the Bar Standards Board, is £12,000 per annum, however some larger chambers like Brick Court will offer up to £60,000. After you have qualified your earnings potential drastically increases depending on your willingness to take on cases. Some newly qualified barristers do not take much work on or take on less profitable work and earn only £25,000 whilst others, especially in commercial litigation where fees are highest can earn up to £300,000 if they take on a lot of cases and are at a high profile chambers in the city. With experience, especially if you become an appointed Queens Council you can make millions. Finally there is a lot of confusion and rumour surrounding the issue of the Inns of Court. There is the old adage ‘Inner for the rich, Middle for the poor, Lincoln's for the scholar, Gray's for the bore’ but how true is this? In short-not very. It may be the case that the inns historically attracted different types of people but today they are all very similar. The only advice we have been given is to visit them all and join whichever one you prefer. There are no disadvantages to gain from being at any of them just different experiences. Some have larger gardens or libraries and others have a more adventurous social calendar so pick the Inn you would feel most comfortable at. That said the roast beef at Inner Temple is fairly special and certainly worth bearing bea in mind.●
The Clarion-Winter 2013
SPOTLIGHT Joe Marshall The law is an ever changing phenomenon; be that through case law and precedents set by judges at trials or new laws being brought in as the advance of society dictates. As such it is not perfect, yet without questioning the very laws that we take for granted we undermine the very nature of our legal system. One area of law that isn’t perfect is the doctrine of joint enterprise liability. It has always been controversial and many scholars have called for limited and cautious application of a principle that could lead to guilt by association.
principal offender during the crime), counselling (encouraging the principal offender in advance of the crime) or procuring (enforcing the actions of the principal offender) the actions of a principal offender. One crucial point of note is that an accessory to a crime is liable as a principle offender due to the principle of derivative liability.
As well as the aforementioned actions, known as the actus reus (see defining the actus reus article-page 9), they must also have the requisite state of mind to commit the crime known as the mens rea. The mens rea for Firstly it is important to understand that there standard accomplice liability dictates that a are three ways in which a person can help a person must intend the action that they agree crime to take place. The first and most obvious to, they must thus intend to aid, abet, counsel is as the principal offender, this is somebody or procure the actions of the principal and they who contributes directly to the materiality of a must foresee that their actions may aid, abet, crime. This person knowingly and actively counsel or procure the actions of the principal. commits a crime and is known as the principle Under Joint enterprise however the second mens rea stipulation is dropped. Modes of participation: This means that an accomplice needs only to • Principle offender (contributes to materiality of the crime) foresee that their actions may lead to a crime by the • Innocent agent (somebody who does not know that they principle to be liable for are helping commit a crime) said crime. Thus if in the process of committing a • Accessory (helping the crime take place indirectly) crime X by A and B if A also commits the crime Y without consent or even knowledge by B of crime Y they are both liable for crimes X and Y. offender. The second mode of participation is as an innocent agent. An innocent agent unknowingly or unwittingly helps a principal If helps if we give this a ‘real- world’ example. offender to commit a crime. Finally and for this Say that two people agree to subject most vitally, you can be an accessory to a crime. This is somebody who indirectly causes commit a burglary on a house. It is decided that a crime through aiding (directly helping the one person will go inside and the other will principal offender), abetting (encouraging the
Clarion-Winter The The Clarion-Winter 20132013
The problems of joint enterprise liability stand guard outside the property. Now it is not unreasonable for the person outside of the property to foresee that the principal offender (inside the house) may cause more damage than simply the burglary. Indeed if we imaging that the burglar finds the family in the house and shoots and kills all of them without the person outside knowing. Now, even though the person, who agreed only to stand guard, did not want to commit murder or even know he was involved he is liable to be prosecut ed for murder. Whilst many, argue that in the cases of Yugoslav war criminals and Nazis joint enterprise allowed prosecutors to punish many more criminals than they otherwise would of it is dangerously close to a simple guilt by association. Indeed others state that at the end of the day you
must be involved in illicit activities for this to have any effect and thus it is a personâ€™s own fault. This is would lead us to conclude there is nothing to be distinguished between crimes. This doctrine is unjust and clearly something needs to be done about it. So what can we learn from this apparent injustice? Firstly, that law and justice are not the same thing and that there are still clearly injustices in the law. Secondly, and similarly, the law can also not be confused with morality. The law on occasions is not just or moral. Finally, the importance of conceptuali sation on all of our parts. The law is not perfect however that is what makes its study so exciting and more importantly so necessary, seeing as the effects of law are so wide reaching and affect us all.â—?
The Clarion-Winter 2013
JARGON BUSTER Joe Clarke
The legal terms you don’t know, explained.
Ad Damnum Ad damnum refers to the parts or sections of a legal complaint that specifies the damages that were suffered and claimed by the plaintiff. The ad damnum clause will usually set forth a specific amount in money that the plaintiff asks the court to award. Affidavit An affidavit is a written document containing evidence for the court. An affidavit is signed in front of an authorised person (for example a lawyer or magistrate) and sworn to be true. Chattel In court cases, the chattel refers to an article of personal property involved in the case. However, the chattel has to be a movable item that is not permanently attached to land, so it is distinguishable from real property such as houses, trees and land. Codicil A codicil is a written amendment to a person’s will, which must be dated, signed and witnessed as a will would be, and must make some reference to the will it amends. The codicil subsequently effectuates a change in the will, without the entire will having to be rewritten. Docket A docket is an official court record book that tracks every case and acts as the ‘minutes’ of court proceedings. The court clerk is in charge of the docket, which should contain the name of the parties, the case and an entry of every proceeding in the case. Ex Parte Ex parte refers to a motion, petition or hearing for the benefit of one party only. The opposing party is absent or unrepresented and the court makes a decision despite the absence of the opposing party. Examples of ex parte are usually temporary orders, such as a restraining order or temporary custody. Expungement In law, expungement is the authorised act of physically destroying information, whether it be in files, computers or other depositories. This may be used if a first time offender of a prior criminal conviction seeks that the records of that earlier process be sealed, thereby making the records unavailable through the state. Fiduciary A fiduciary is someone who is trusted to manage money and property for another, and who must exercise a standard of care in such management activity imposed by law or contract. A fiduciary must avoid instances in which the potential benefit to the fiduciary is in conflict with what is best for the person who trusts him or her. Habeas Corpus Habeas corpus means ‘you have the body’ in Latin and it is the law that anyone that is arrested has to be charged with an offence and be brought before a court. This way, the court can decide whether the detention of the person in question is lawful or not. Informant An informant is someone who covertly provides information about criminal activity to law enforcement officers. Most informants are usually people caught engaging in criminal activity; however, they can be also be paid to provide information, such as government officials and ticket inspectors. Look out for part two of the glossary in the next issue…
The Clarion-Winter 2013
MEET THE TEAM
Joe Marshall, Editor-in-chief
Sam Porter, Deputy Editor
Jafar Saeed The The Clarion-Winter Clarion-Winter 20132013
All images courtesy of www.freepixels.com and morguefile.com. The views expressed are those of the individual authors, not The Clarion, Marling School or any affiliated groups. Where possible The Clarion has sighted itâ€™s sources and the list can be found at : issuu.com/theclarionlaw/docs/source_booklet If we have failed to declare a source please email email@example.com and we will
The Clarion-Winter 2013