The Inner Temple Yearbook 2014-2015 by The Inner Temple

THE INNER TEMPLE YEARBOOK ��–�� Treasurer: The Rt Hon Lord Justice Tomlinson

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FROM THE EDITOR’S DESK INNER TEMPLE YEARBOOK 2014–2015

From the Editor’s Desk

Inner Temple Yearbook 2014–2015 Treasurer:

The Rt Hon Lord Justice Tomlinson Reader:

The Rt Hon Lord Justice Moore-Bick Sub-Treasurer:

Patrick Maddams Treasury Office

Inner Temple London EC4Y 7HL 020 7797 8250 Yearbook@innertemple.org.uk www.innertemple.org.uk Maﬆer of the Yearbook:

Sally Smith QC Editor:

Minka Braun Assistant Editor:

Henrietta Amodio Yearbook Manager:

Edward Harper Desk Editor:

Emma Hynes

E&T Editorial Team:

Francesca Ellis, Fiona Fulton, Carys Nelkon Archivist

Celia Pilkington Photographs:

his edition of the Yearbook marks the centenary of the start of the First World War, a conflict in which many members of the Inn fought and sacrificed their lives, to advance the values we take for granted today. Commemorating this milestone has allowed us an opportunity to reflect on how the Inn has adapted over the last century, whilst continuing to play its vital role in nurturing our profession. A century ago, pupils paid their pupil masters and the prevailing orthodoxy was that advocates were born and not trained. Today, the Inn supports our students through the provision of scholarships, and the E&T team draws on the support of many of our members, to ensure that the Bar produces the great advocates of the future. The Inn of yesterday was predominately white, male and born

to privilege. Today’s Inn, all the while maintaining our commitment to excellence, more accurately reflects the community we serve, with women, ethnic and other minorities a sizeable proportion of our members. I hope that as you read this Yearbook, you too take pride in our Inn’s rich history and how the it is at the forefront of ensuring that our profession remains relevant, whilst preserving those defining characteristics and traditions that make us the envy of the world. My thanks, as ever, for the efforts of the extraordinarily hardworking and efficient team at the Inn and to the many members and staff who have contributed content, without whom this Yearbook could not have been produced. Minka Braun

Garlinda Birkbeck; MPP Image Creation; Abhimanyu Bose; de Laszlo Foundation and the Inn’s own Design:

Jon Ashby, David Jordan at Cantate Communications Advertising:

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Poppies in the Inner Temple Garden Photo: Paul Clark

The Yearbook Editorial Team

INNER TEMPLE

Contents From the Editor’s Desk

From the Treasurer

Bar Liaison Committee Update

36 38

Your Unknown Grave

Total Madness

Dame Elizabeth Lane: Fifty Years On

Minka Braun

Maﬆer Treasurer Bijan Omrani

The Great and the Good Maﬆer Shields

12 14

Sara Lawson

Maﬆer Lawrence

Maﬆer Martin

Maﬆer Graeme Williams Extracts from the Short Book of Bad Judges

Maﬆer Thorley

INNER TEMPLE CELEBRATE THE LIFE

Maﬆer Le Quesne

Maﬆer Kingsdown

INNER TEMPLE CELEBRATE THE LIFE

INNER TEMPLE LECTURE SERIES

Law Liberty and Morality in the Age of the Genome

INNER TEMPLE CELEBRATE THE LIFE

45 46

Maﬆer Graeme Williams

INNER TEMPLE LECTURE SERIES

Unjust Enrichment

“The Nearest Run Thing You Ever Saw in Your Life”

Professor Andrew Burrows QC

INNER TEMPLE CELEBRATE THE LIFE

Maﬆer Sumner

INNER TEMPLE EVENT

Summer Party: Singapore Sling

INNER TEMPLE LECTURE SERIES

The Common Law and the ECHR Maﬆer Reed

INNER TEMPLE EVENT

Tosca

Maﬆer Laws

INNER TEMPLE LECTURE SERIES

LIPS, LASPO and the State of Family Justice

Samuel Broome: “The Floral Oracle of the Working Classes”

Joanna Miles

Maﬆer Simon Brown

INNER TEMPLE LECTURE SERIES

Is Fairchild a Leading Case of the Common Law?

Nelson Goes to Law

Per Laleng

Maﬆer Orde

CONTENTS INNER TEMPLE YEARBOOK 2014–2015

INNER TEMPLE EDUCATION & TRAINING

Education and Training Section

The Legal Economy

128

The Murder of Julia Wallace

132

The Inner Temple Library

137 138

Maﬆer Beringer Maﬆer James

A Cauldron of Change: Ending Sexual Violence in War

Estelle Dehon

INNER TEMPLE PEGASUS SCHOLARSHIP

Pegasus Scholars Abroad

100

The Sub-Treasurer

INNER TEMPLE CELEBRATE THE LIFE

Maﬆer Topley The Art of Advocacy: The Work of the Advocacy Training Council

The Cardinal, The Law and The Smiling Elephant

109 110

Maﬆer Green

INNER TEMPLE LECTURE SERIES

Strasbourg and the National Courts

112

Timeline

116

Maﬆer Mahoney Celia Pilkington

INNER TEMPLE EVENT

Temple Family Picnic

118

Sermon for Choral Evensong in the Temple Church

140

HE Cardinal Vincent Nichols

INNER TEMPLE CELEBRATE THE LIFE

Maﬆer Hyland Malaysian Inner Temple Alumni Association Mary Lamb: Woman’s Work

144

Rachel Lawrence: An Appreciation

146

Weddings at the Temple Church

148 150

Helen Walton

Maﬆer de Wilde

Magna Carta, Religion and the Rule of Law

120

Magna Carta and the Temple

122

2014 International Legal Ethics Conference VI

Collegiality, Conviviality and Civility

124

New Benchers

Maﬆer of the Temple Maﬆer of the Temple Maﬆer Simon

INNER TEMPLE CELEBRATE THE LIFE

Maﬆer Dunn

126

142 143

Maﬆer Cryan, Maﬆer Laws, Professor Rhode

Maﬆers of the Bench People Finder Chairmen of Bench Committees

154 156 160 162

KEY INNER TEMPLE LECTURE SERIES

INNER TEMPLE EVENT

INNER TEMPLE CELEBRATE THE LIFE

INNER TEMPLE EDUCATION & TRAINING

INNER TEMPLE PEGASUS SCHOLARSHIP

INNER TEMPLE

From the Treasurer by Maﬆer Treasurer

he Inn has changed since I joined it as an undergraduate in 1971. The students of today look at me with incomprehension when I explain that in those days one had to ‘keep’ twelve dining terms before one could be called to the Bar and that this involved eating 36 dinners. If you wanted to be called the year after you had graduated, at the end of the one year Bar Final Course, assuming that you were a law graduate, that meant starting to keep your terms at the beginning of your second year at university. After I had kept two terms, the Inns obligingly changed the rules, a two-fold rule change as all of those of my generation will keenly remember. First, you could ‘double-dine’. This did not involve eating two dinners on the same night but rather it permitted you to eat six dinners in a single term which thereafter counted as two terms. Coupled with that rule change, Call to the Bar became permitted after keeping eight terms, provided that you undertook to keep however many terms remained outstanding on the Bar table during the ensuing year. So now you could eat all the dinners necessary for Call during the year when you were in London studying for the Bar Final. I mention this piece of history because it does, I think, demonstrate how far we have come since those rather austere days. The dinners were of very little value, nutritional or otherwise, since the Benchers sat at High Table and the barristers sat at their own table, and there was no opportunity to absorb anything about the profession or its ethos except perhaps by an obscure process of osmosis. Our qualifying sessions today offer, by contrast, I hope, a mixture of genuine learning experiences ranging from lectures and talks to advocacy training, and real opportunities to spend time with barristers and judges either in the Inn or elsewhere. And now the food is rather better too. As I have remarked more than once during the year, and the year is only half completed as I write, the Inn would be nothing if we did not educate and train our students and young practitioners. There is never any room for complacency and there is always room for improvement, but I think that our efforts in this regard are producing sessions as good as we have ever been able to offer. At this point I should like to express my gratitude to all those members of the Inn, by no means all Benchers, who give up so much of their time to contribute to these activities. Over the last year I have attended three student weekends, at Cumberland Lodge and Highgate House, as well as two advocacy training weekends for pupils and young practitioners at Wotton House. The level of commitment by our members is humbling, as is too the willingness of many outside our profession to give up their time to attend as speakers and to participate as expert witnesses, cheerfully

submitting to serial cross-examination in their disciplines. We have again enjoyed a stimulating series of Reader’s Lectures, the theme of which this year has been “Recent Landmarks in the Law”. Our speakers so far have been Per Laleng, of the University of Kent at Canterbury and also an Academic Fellow of the Inn, Professor Andrew Burrows QC, from Oxford, and Joanna Miles, Senior Lecturer at Cambridge and a Fellow of Trinity College. Still to come are Professor Robert Stevens, again from Oxford and our own Master Sedley. Although primarily aimed at our students, speakers of this quality inevitably attract a good audience from Bench and Bar too. Our students have been active in mooting and debating, scoring some notable successes in both national and international competitions. I have been particularly impressed by the resilience of our students, many of whom are determined to pursue a career at the independent Criminal Bar, notwithstanding the difficulties in that endeavour which have become all too obvious over the last two or three years. This is not the place to discuss those problems, still less to attempt to offer solutions, but I note that in this space, in the 2012-2013 Yearbook, my predecessor Jonathan Hirst offered his view that: “ …the publicly funded Bar is going to have to consider adopting some of the new business models which are now becoming available. The reason that the higher court advocates are providing such a challenge to the independent Bar is that they have direct access to the client and can pick and choose what work to keep and what to refer. The Bar has to take them on at their own game. This Inn believes passionately in a strong and independent Bar. We will do everything we can to support it.” That is a sentiment which holds as good now as it did then, and I am encouraged to hear reports that the Criminal Bar is in the process of considering the new business models of which Jonathan then spoke, assisted by the Bar Standards Board whose approval of such models is of course required. The Bar will this year lose a staunch ally and defender when Baroness Ruth Deech, Master Deech as we are pleased to be able to call her in the Inn, steps down from the chairmanship of the BSB, a role which she has filled with distinction for over five years. A theme which permeates these introductory pieces by the Treasurer of the day is an expression of gratitude for the extraordinary dedication and efficiency of our staff. This is no mere lip service. We are greatly blessed in our

FROM THE TREASURER INNER TEMPLE YEARBOOK 2014–2015

staff, many of whom have served the Inn for long periods of time. At the level of Heads of Department there has been very little change in recent years. Amongst their departmental staff too, long service is the order of the day. It would be invidious to identify any particular Head of Department, or member of staff, for each is doing a superb job. The work product of some is more visible than others, the garden being perhaps the most obvious example. A highlight of the year for me has been the singing of the Temple Church Choir. Frequently this year, Choral Evensong has preceded another of the Inn’s functions, most notably so far the dinner which we gave jointly with Middle Temple for the Lord Mayor, Alderman Fiona Woolf, a distinguished solicitor and Honorary Bencher of Middle Temple. The singing of the choir on these occasions under the directorship of Roger Sayer has been sublime. Their rendering on that occasion of Sir John Tavener’s mystical setting of the Magnificat was memorable. In Greg Morris we have an organist of rare quality, who now conducts the newly created Bar Choral Society. On 1 May, we were back in the Temple Church for a concert in honour of John Tavener, who died in 2013. Those present were privileged to hear Raphael Wallfisch give a spellbinding performance of The Protecting Veil, in company with the Britten Sinfonia conducted by Roger Sayer. The choir again performed with distinction and the concert was broadcast by Classic FM. On 7 July, we welcomed as our preacher at Evensong, Cardinal Vincent Nichols, Archbishop of Westminster, who we are honoured to be able within the Inn to call Master

Later in the year I shall be visiting Inner Temple alumni in Gibraltar as they establish an Inner Temple Association. Other Inner Temple associations are planned in Mauritius and in the Caribbean, the latter at the instigation of Sir Dennis Byron, Master Byron, President of the Caribbean Court of Justice. He perceives that legal students and practitioners in the Caribbean are disadvantaged because they have little or no access to judges and senior lawyers. He sees the Inns system as providing an institutional facility for open and transparent interaction between the judiciary, from the highest level, to the lawyers, from the time they begin the study of the law. It is hoped that once the Inner Temple Chapter gets off the ground it might be expanded to embrace all four Inns. In November, the Treasurer of Middle Temple and I will attend a reception at the Library of Congress in Washington to mark the temporary loan of the Lincoln Cathedral copy of Magna Carta, in preparation for the 800th anniversary celebrations next year. In recognition of the role played by the Temple Church as the venue for some of the negotiations which preceded the historic signature at Runnymede, the choir of the church has been invited to sing at this ceremony and at other locations in Washington. It is a trip to which I look forward with great anticipation. I could weary you with my account of yet more of the events of the year, such as the splendid performance of Tosca by Opera Brava in the garden in June. Sadly a glorious summer’s day turned into a cold and blustery evening, but it did not rain and the music and the singing took our minds off the cold. Very soon as I write there

“ The Inn is at one and the same time an educational institution and, I hope, a place of scholarship, a professional association dedicated to the maintenance of high standards within the profession and a property company running a complex and in parts ancient estate of diverse character.” Nichols. His sermon remembered and remarked upon Saint Thomas More, executed on 6 July 1535, and we were joined at the service by members of both the Thomas More Society and the American Inns of Court Foundation. The following evening we entertained our guests from the American Inns of Court Foundation at an Amity Dinner and later in the week we had our Summer Party, this year themed as ‘Singapore Sling’ in deference to the sculptures Angles of Incidence which have been displayed on the Broadwalk over the summer months. Over 540 people, including the High Commissioner for Singapore, His Excellency Thambynathan Jasudasen, enjoyed a wonderful evening. Other overseas visitors to the Inn this year have included Minister Joaquim Barsosa, Chief Justice of the Supreme Court of Brazil, Justice Dr Haji Hamid Sultan Bin Abu Backer, a Judge of the Court of Appeal in Malaysia, Tan Sri Ghani Patail, the Attorney General of Malaysia, Samuel Bulgin JP, Attorney General of the Cayman islands, and Hassan Jallow, Chief Prosecutor of the International Criminal Tribunal for Rwanda. I have written elsewhere of my trip to Bucharest earlier this year, in the company of Master Alison Saunders, the DPP, Master McCreath and Master Barry Rider, in order to attend a regional inter-governmental conference on fighting high-level corruption. I look forward to visiting Inner Temple members in Hong Kong, Singapore and Malaysia during my trip in August.

will be the more serious business of the Trinity Term Call Night, and those which follow in the autumn. I have already mentioned the undiminished enthusiasm which I have encountered within our student cohort. Of course, not all of those who qualify wish to practise, but there are I regret to say too many for whom the opportunity to practise is simply a wholly unattainable aspiration. I hope that by the end of this year we may have moved closer to a system which reduces the number who are permitted to spend time and considerable sums of money in pursuing an unachievable goal. The Inn is at one and the same time an educational institution and, I hope, a place of scholarship, a professional association dedicated to the maintenance of high standards within the profession and a property company running a complex and in parts ancient estate of diverse character. It is also, as my predecessor Master Laws reminded us, a place of good fellowship. It has been an unalloyed pleasure to be Treasurer of the Inn, and thus nominally in charge of these varied activities, a task in which I have been assisted and supported at every turn by Benchers, members of Hall and staff alike. I thank you for the honour you have done me in entrusting me with the task. Maﬆer Treasurer

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INNER TEMPLE YEARBOOK 2014–2015

“ Your unknown grave” As curator of a new exhibition in the Temple Church, Bijan Omrani uncovers the contribution made by members of the Inner Temple to World War I.

ne of the many tributes paid to the men of the Inner Temple who fought in World War I came from the Inn’s Treasurer, Sir Charles Darling. Responsible for compiling a Roll of Honour to record their service, he also addressed a sonnet to them in praise of their sacrifice. The Inner Templars, he records, whose “laurels deck the tombs of those old Knights / Who Beauséant planted where ye kneel today” had “fallen Jordan or Aisne along”. Darling’s tribute, whilst stirring and generous, did not go far enough. Members of the Inner Temple certainly fell by the Aisne and Jordan, but their service was more extensive still. They fought by land, sea and air. They were engaged in or present across every theatre of conflict, not just in France and in Palestine, but in Mesopotamia, Africa, Serbia and Russia. Moreover, their service went beyond the simple bearing of arms, and included counter-espionage, verse-writing, and even the practice of law. This article tells just a few of their stories.

INNER TEMPLE

James David Gilkison

embers of the Inn were involved in battle from the very first engagements of the War. Lieutenant James David Gilkison had been educated at Rugby School and Trinity College Oxford, and was called to the Bar in 1906. At the same time he took a commission in the 1st Battalion Princess Louise’s Argyll and Sutherland Highlanders, seeing service in India and South Africa. At the outbreak of War, his unit was sent out as an original part of the British Expeditionary Force in the first days of August 1914. At the Battle of Le Cateau on 26 August, he was leading his men towards an enemy machine gun when he was shot down. Reported missing, his death was not confirmed until September, when news came that his elder brother had also been killed. A fellow officer wrote to his parents: “Jim met his death in most gallant manner. The Regiment lost one of its best liked officers, and I a very true and valued friend in Jim.” Amongst those Inner Templars who were not already active or territorial members of the forces, there was a strong urge to enlist at the start of the War. One of the primary routes of enlistment was through the Inns of Court Officers’ Training Corps (OTC). This unit, based in 10 Stone Buildings, Lincoln’s Inn, is one of the oldest in the British Army, tracing its origins to a defence force raised amongst members of the Bar to defend London against the Spanish Armada in 1588. By the beginning of the 20th Century, the unit was open to public school men and professionals, who would enlist and then pass on to commissions in other regiments. One Inner Templar to follow this route was Hubert Charles Meysey-Thompson. Born in 1883 into a legal family, his father was a QC, he practised on the North Eastern Circuit until the declaration of War in 1914 moved him to sign up. He recorded the experience of joining the OTC in his diary:

5 August British ultimatum to Germany expired at midnight and war certain. – Decide to try and join something, if possible “Inns of Court” O.T.C. Go up to London by morning train and go straight to Inns of Court armoury in Lincoln’s Inn. Find that adjutant has left for luncheon, so go and lunch at “Cock”, returning directly afterwards. Find a long string of would-be recruits, waiting to interview second in command. Finally my turn comes, and I go before an elderly gentleman disguised as a major, who, in spite of his uniform, boots and spurs, could be nothing other than a Chancery Barrister. My age, and the fact that it is twelve years since I performed any form of military duties makes him rather reluctant to accept me, but I impress upon him that I was a marksman at Marlborough, and carefully suppress the fact that I never attained the rank even of lance corporal, and am finally passed…

Meysey-Thompson eventually fought at the Somme, where he witnessed the first use of tanks in battle at Flers, and was later shot in the face at Passchendaele whilst looking at a map to navigate his way around the chaotic battlefield. However, he survived the War, later becoming one of the Lord Chancellor’s Visitors in Lunacy. Other ill-prepared newly recruited officers were not so lucky. Lieutenant Harold Pennington had originally read for the Bar and then joined the Colonial Civil Service, working in the Malay States. He joined the 9th Battalion Royal Sussex Regiment in January 1915, and was despatched to France on 31 August, shortly after his marriage to Veronica Warner-Lee. He wrote to his new wife almost daily, and the contents of the letters reveal the shortcomings in training and equipment. The gas masks were useless, weaponry kept breaking, there were appeals for new socks for himself and his men since “the Government socks are atrocious, shrink to nothing and are very thin.” One of the weaponry instructors came close to annihilating him with a live bomb, who then two weeks later was killed by a bomb he thought was a dummy. On 22 September, Pennington wrote to his wife that it wouldn’t be long “before we are in the thick of it… As far as I am concerned I am never likely to be able to peg out more usefully than for what we are now fighting for…” Three days later he was shot through the head and died in the attack on Loos.

6 August Parade at ten in Lincoln’s Inn gardens. About 100 recruits, all looking rather lost and most unmilitary in “Civvies” with every sort of hat. Several earnest and warm looking N.C.O.’s push us into some kind of formation, and we are then sorted out into squads, according to the freshness of our military experience. I find myself… in the last and oldest of these squads, who have done no soldiering for over ten years. An ardent Corporal takes us in hand and drills us vigorously, with an interval for luncheon, until 4 o’clock, when we are dismissed for the day, and I retire to my Club for a much needed drink, feeling as if I had never worked so hard in my life before.

YOUR UNKNOWN GRAVE INNER TEMPLE YEARBOOK 2014–2015

Christopher Bushell

lthough some men did not have the benefit of full training, there was no lack of gallantry. Many members of the Inner Temple won awards for bravery, including the VC. On 23 March 1918, at the beginning of the German Spring Offensive, Christopher Bushell of the Queen’s Royal West Sussex Regiment led his company in a counterattack near St Quentin against the German onslaught. His citation tells the story. Advancing in the face of very heavy machine-gun fire:

Nizamat Jung

ome Inner Templars whose age precluded them from the front, and who were not willing to conceal it, at least offered their literary support. Nawab Sir Nizamat Jung Bahadur was a both a High Court Judge in Hyderabad and a noted Muslim Sufi poet. As Indian soldiers joined the war effort, he wrote two poems published in The Times which gained wide popularity, lamenting that he was not able to be amongst their number at the front, but praising the Indian soldiers and also England:

“ …he was severely wounded in the head, but he continued to carry on, walking in front of both English and Allied troops, encouraging and re-organising them. He refused even to have his wound attended to until he had placed the whole line in a sound position and formed a defensive flank to meet a turning movement by the enemy. He then went to Brigade Headquarters and reported the situation, had his wound dressed and returned to the firing line, which had come back a short distance. He visited every portion of the line, both English and Allied, in face of terrific machine-gun and rifle fire, exhorting the troops to remain where they were and to kill the enemy. In spite of the wounds, this gallant officer refused to go to the rear, and eventually had to be removed to the dressing station in a fainting condition…”

Yet turn, O mighty Mother! turn Unto the million hearts that burn To be thy shield! Thine equal justice, mercy, grace, Have made a distant alien race A part of thee! ’Twas thine to bid their souls rejoice, When first they heard the living voice Of Liberty!

Photo by Topical Press Agency/Getty Images

(India to England, October 1914)

Raymond Asquith

Jasper Myres Richardson

he same action claimed the life of the oldest soldier to fall in the War, an Inner Templar. Jasper Myres Richardson was born in 1849. He practised on the North Eastern Circuit and in London, and also served for five years as a territorial. In 1914, he was determined to enlist, and misled the recruiters about his real age. In 1915, he was sent to France as an agricultural officer attached to the headquarters of the Fifth Corps, Third Army. On the first day of the 1918 German Spring Offensive, 21 March, he was struck by artillery fire near Bapaume and died nine days later; he was 68.

ome Inner Templars contributed to the war effort by the practice of law. Qualified barristers were in high demand to officiate at or assist with Courts Martial Tribunals. Raymond Asquith, the brilliant eldest son of the Prime Minister, Herbert Asquith, served with the Grenadier Guards in France, and was called several times to be an advocate on behalf of fellow soldiers, charged with disciplinary offences. On one occasion he defended a fellow Grenadier, Sir Iain Colquhoun, for permitting a truce on Christmas Day 1915, to allow the Germans to collect and bury their dead. On another, recorded in a letter home, he defended an officer on charges of committing homosexual acts in the trenches:

INNER TEMPLE

Asquith was one of the 17 Inner Templars to fall at the Somme, shot through the heart on 15 September 1916. Despite the horror of the battle, he still managed to make light of it in his letters home: “ Except for the banal booming and flashing of the guns one might be at one of those old-fashioned balls in Arthur Grenfell’s garden at Roehampton – the same tiresome noise of electricity being generated in the too near foreground, the same scraggy oaks, the same scramble for sandwiches, the same crowd… ”

dismemberment. Day and night are made hideous by the incessant crash and whistle and roar of every sort of projectile, by sinister columns of smoke and flame, by the cries of wounded men. Along this terrain of death stretch more or less parallel to each other lines of trenches, some 200, some 1,000 yards apart. In these trenches crouch lines of men in brown or grey or blue, coated with mud, unshaven, hollow-eyed with the continued strain, unable to reply to the everlasting rain of shells hurled at them from 3, 4 or 5 miles away and positively welcoming an infantry attack from one side or the other as a chance of meeting and matching themselves against human assailants and not against invisible, irresistible machines.” Another MP, Harold Thomas Cawley, who fought and died at Gallipoli, was directly critical of one of the commanders, Major-General Sir William Douglas, to whom he was Aide-de-Camp: “ He has a third-rate brain, no capacity to grasp the lie of the land, and no originality or ingenuity… He is not easily rattled, and quite callous in the face of casualties… He has been in the trenches three times since he landed, hurried visits on which he saw next to nothing… He is always thinking of himself, his food, his promotion, his health…”

Photo: Walter Stoneman. Negative, 1920 © National Portrait Gallery, London

“ I had two terribly strenuous days last week – 10 hours each before a Court Martial defending a brother officer upon 5 charges of ‘homosexualism’ unsuccessfully. It was terribly tiring but not entirely unenjoyable as it was easy to make fools of most of the witnesses (though not unfortunately as to the facts to which they testified) and I wound up by making a speech of considerable length in which I wavered between being a blunt soldier and a cynical barrister, plunging rather recklessly from one extreme of idiom to another. I can tell you it takes some nerve to say to a bevy of flint-faced brigadiers, ‘When one contemplates the picture of --- (chief witness for prosecution) padding down the duck-boards in the twilight with muffled feet and gimlet eyes to spy upon the privacy of a brother officer, one asks oneself whether even the missionary spirit has ever exhibited itself in a more repulsive and ridiculous guise’.”

Sir Basil Thomson

Valentine Fleming

ome Inner Templars were more outspoken in their letters home about the horrors of the conflict. A number of them were MPs, and their parliamentary privilege of free speech allowed them to avoid military censorship, making their correspondence especially vivid. Valentine Fleming MP DSO, was the father of James Bond author Ian Fleming and the explorer Peter Fleming, and despite his death on the battlefield in 1917 is often regarded as an inspiration behind the Bond character. Being amongst one of the earlier units to be sent to the front in 1914 (the Queen’s Own Oxfordshire Hussars), he was in a position to view the development of the trench system. He described it in a letter to his friend Winston Churchill, then First Lord of the Admiralty: “ (It) is positively littered with the bodies of men and scarified with their rude graves; in which farms, villages and cottages are shapeless heaps of blackened masonry; in which fields, roads and trees are pitted and torn by shells and disfigured by dead horses, cattle, sheep and goats scattered in every attitude of repulsive distortion and

f some Inner Templars were critical of the War’s conduct, others were also strongly of the establishment party. Sir Basil Thomson, who was called to the Bar in 1896, became a prison governor and a colonial administrator, and just before the outbreak of war the head of the Criminal Investigation Department (CID) at New Scotland Yard. As such, he was responsible for working with the Intelligence Services to arrest and interrogate suspected spies. He was involved in undermining a plot to assassinate Lord Kitchener, and also against Indian secessionist movements. He also interrogated some of the most high profile suspects of the war, including Sir Roger Casement and Mata Hari. Of the latter, he records in his memoires: “ I expected to see a lady who would bring the whole battery of her charms to bear upon the officers who were to question her. There walked into the room a severely practical person who was prepared to answer any question with a kind of reserved courtesy, who felt so sure of herself and of her innocence that all that remained in her was a desire to help her interrogators. The only thing graceful about her was her walk and the carriage of her head. She made no gestures and, to say truth, time had a little dimmed the charms of which we had heard so much, for at this time the lady must have been at least forty… ”

YOUR UNKNOWN GRAVE INNER TEMPLE YEARBOOK 2014–2015

nother Inner Templar who saw naval service was Hilton Young. His wartime operations included a mission to Serbia to disrupt communications between Germany and Turkey, a commando raid on Zeebrugge, in which he lost an arm, and also a later raid on Archangel. He went on to become editor of the Financial News and Minister for Health, as well as acting as a mentor to E M Forster as he wrote a Passage to India. Despite his life of activity he was also an accomplished poet, and in 1919 he wrote an elegy, Return, for his fallen friends. It is to him that the title of this article and the last word belongs:

Prince Albert's coat of arms appears in the stained glass of Inner Temple Hall

Even more a part of the establishment was the Inner Temple’s Royal Bencher, HRH Prince Albert, later King George VI. During the War he served at sea on HMS Collingwood, and saw action at the Battle of Jutland in 1916. The night before the battle he had been ill with a surfeit of soused herring. However, during the battle itself he was able to man one of the gun turrets and was mentioned in despatches. He recorded the battle in his diary:

The whole Fleet deployed at 5.00 and opened out. We opened fire at 5.37 p.m. on some German light cruisers. The Collingwood’s second salvo hit one of them which set her on fire, and sank after two more salvoes were fired into her… At the commencement I was sitting on the top of a turret and had a very good view of the proceedings. I was up there during a lull, when a German ship started firing at us, and one salvo “straddled” us. We at once returned the fire. I was distinctly startled and jumped down the hole in the top of the turret like a shot rabbit!! I didn’t try the experience again…

As much as they took part in the fighting, members of the Inner Temple were involved in making peace. General Jack Seely, who led one of the last cavalry charges of the war at the Battle of Moreuil Wood in March 1918 – an action which helped to impede the German Spring Offensive of that year – left the front after being gassed and joined the Cabinet as President of the Air Council. In this capacity he attended the post-War peace conference, and was present at the signing of the Treaty of Versailles in 1919. The moment gave him terrible misgivings:

“ This was the way that, when the war was over, we were to pass together. You, its lover, would make me love your land (you said no less) its shining levels and their loneliness, the reedy windings of the silent stream, your boyhood’s playmate, and your childhood’s dream. The war is over now; and we can pass this way together. Every blade of grass is you: you are the ripples on the river; you are the breeze in which they leap and quiver. I find you in the evening shadows falling athwart the fen, you in the wildfowl calling; and all the immanent vision cannot save my thoughts from wandering to your unknown grave”. This article brings together just a few of the stories about the contributions made by members of the Inner Temple during the First World War, accounts which have languished in archives and little remembered volumes. It is to be hoped that these stand as a tribute to all the other members of the Inn whose stories cannot be told in this article, and that time and other researchers will soon bring back to memory the untold sacrifices made by other members of the Inn. Bijan Omrani Bijan Omrani is the author of several books and is currently reading for the Bar. Winter of the World: an exhibition about Members of the Inner and Middle Temple in World War I can be viewed in the Temple Church throughout the coming months. For opening times, www.templechurch.com

“ It was a terrible document. Germany acknowledged herself, not only defeated, but guilty. Rolled in the mud, bereft of all her overseas possessions; her two richest provinces; her Army; her Fleet; her Air Force all gone; condemned to pay an indemnity so huge that it clearly meant, not only impoverishment, but bankruptcy…. I confess that, passionately as I had longed that we should win the war and thankful as I had been for our astonishing deliverance from almost certain defeat fourteen short months before, nevertheless, I shuddered as the deed was done. I think it was in the minds of all of us that, although we had obviously tried to do the best, the seeds of other and more desperate conflicts were to be found in the Treaty which had been signed.”

INNER TEMPLE

The Great and the Good Maﬆer Shields, Maﬆer of the Paintings, explores the triumph and despair of James Lowther and the man who painted his portrait, Philip Alexius de László.

Philip de László, Self-portrait, 1925. By courtesy of the de László archive trust

hen James Lowther, Master of the Bench of the Inner Temple, sat (or rather stood) to have his portrait painted in 1907, the artist entrusted with this prestigious commission could not have come from a more different background to his subject. Born in 1855 and educated at Eton and Trinity Cambridge, Lowther had been the Conservative Member of Parliament for Penrith since 1886 and had in 1905, after a successful but not exciting political career, been elected the 12th Speaker of the House of Commons. His rise had been as effortless as it was inevitable. By contrast Philip de László had only that year come to settle in England, having been born in humble circumstances in Budapest in 1869, the son of a struggling tailor and the third eldest of a family of nine, only five of whom were to survive childhood. De László, born Laub Fulop, left school aged 10 and went out to work to support his family. In 1884 he became apprenticed to the well-known photographer Strelisky Sándor. Although his early employment included theatre set painting and working for an architectural sculptor, his precocious and natural talent as an artist won him a scholarship to study at the National Academy of Arts in Budapest and later in Munich and Paris. His focus gradually switched to portrait painting and, having changed his name to László in 1891, he rapidly became one of Europe’s most sought after artists. His subjects during the next forty six years read like a Who’s Who of royalty, religion, politics and society. He painted the great and the good (although history might argue with that description in some cases) ranging from two Popes, Leo XIII and Pius XI, to crowned heads such as Kaiser Wilhelm and Franz Joseph, Emperor of Austria and

THE GREAT AND THE GOOD INNER TEMPLE YEARBOOK 2014–2015

King of Hungary (several times), King Edward VII and Queen Alexandra. His fame crossed the Atlantic and commissions even came from four Presidents, Theodore Roosevelt, Warren Harding, Calvin Coolidge, and Herbert Hoover, and in each case their wives as well. Later in life he was to paint the Duke and Duchess of York, before the abdication of his elder brother, and Prince George, Duke of Kent, a figure who was to play a tragic role in Lowther’s later life. By 1907, László (as he was by that time known) himself was becoming confident in society, having earned admiration and friendship in the princely courts of Europe and whilst living in Vienna, where he received many important commissions. In 1900 he had married Lucy Guinness of the eponymous banking family, by whom he was to have six children, the second, their only daughter, dying in infancy. As he gazed at the stately and secure figure of the Speaker, László, soon to be ennobled by Franz Joseph, could well regard him as his equal. Both men had their share of triumph and despair after this portrait was completed. Lowther continued as Speaker until 1921 when, on his retirement, he was made Viscount Ullswater. His exhortation to members to, “Stand up, speak up and shut up”, is surely timeless in its wisdom. Tragically, his eldest son and his grandson were killed in 1942 on board the plane carrying the Duke of Kent, to whom his son was acting as private secretary. It is one of the rare occasions when a peerage has been inherited by a great grandson. The second Viscount Ullswater has himself enjoyed a distinguished political career. De László flourished until the First World War when, for two years, 1917-19, he suffered the pain of imprisonment and indignity of internment, even though he had been awarded a MVO by Edward VII in 1909 and had become a British citizen in 1914. He was totally exonerated in 1919 and the demand for his talent re-emerged and continued unabated. He liked to work with poppyseed oil as a medium because it dried slowly and suited his alla prima technique. Unusually, he generally liked to have the blank canvas already framed before he started painting. For certain important commissions he would make full sized preliminary oil sketches and many drawings but this portrait of Lowther is a fine example of the ‘study portrait’ that, to a great extent, became de László’s hallmark. From the de László Archive:

“ The particularity of these works was that they were generally painted on unprimed millboard, or artist’s board and deliberately left unfinished, that is with the composition finely but freely painted but apparently floating upon a plain background. They exemplified de László’s fluid technique and vigorous brushwork and are unique to his oeuvre”.

James Lowther, The Rt Hon Viscount Ullswater By Philip Alexius de László, 1907

This technique had another advantage – the work could be completed in one or two sittings and sometimes within a couple of hours – achieving a truly vivid likeness to the sitter. There is no doubt that in his glittering array of subjects de László can be considered in the same breath as Sargent and Boldini. His works may lack the swagger and boldness of those two, but the slightly dismissive reference in the Dictionary of National Biography that, “he had a pleasing, courteous and exuberant manner and was very popular in society” fails to do justice to his talent. Although his reputation suffered a decline after the Second World War, the efforts of the de László Catalogue Raisonné project, founded and led by the Hon Mrs Sandra de Laszlo, to rehabilitate him are justifiably producing dividends. Perhaps the highest testament to his craft is that he was commissioned by Lord Lee of Fareham, the co-founder and inspiration of the Courtauld Institute, to paint some sixteen portraits of him, his wife and her wider family, several of which remain at Chequers today. That, and the fact that examples of his works are to be found in the National Portrait Gallery, Tate Britain and other notable museums and many distinguished private collections around the world. Maﬆer Shields Readers who would like to know more about de László and read the developing Catalogue Raisonné online should visit www.delaszloarchivetrust.com. The author is indebted to the archive and to Sandra de Laszlo for much of the information in this article.

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Law, Liberty and Morality in the Age of the Genome

In an abridged lecture, Maﬆer Thorley reflects on morality, scientific research and the legal status of human embryos

“ Where is the balance to be drawn between the need to safeguard the dignity and integrity of the person on the one hand and encouraging and rewarding stem cell research with a view to developing valuable methods of treatment on the other?”

LAW LIBERTY AND MORALITY IN THE AGE OF THE GENOME INNER TEMPLE YEARBOOK 2014–2015

hen I was studying law in the late 1960s, there was an on going debate between two eminent lawyers, Lord Scarman, a Lord of Appeal in the UK Supreme Court, and Professor Hart, an academic lawyer at Oxford University. It resulted in a series of essays by Professor Hart entitled “Law, Liberty and Morality”. The stimulus for the debate was the proposal that homosexual acts between consenting adults in private should no longer be a criminal offence. Lord Scarman held the view that it was justifiable to use the criminal law to punish deviations from a society’s shared morality. Professor Hart, in very broad terms, was a supporter of John Stuart Mill’s famous statement that the only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others. The debate raged over many issues: conspiracy to corrupt public morals as in The Lady Chatterley case, advertisements for prostitution, abortion and so on. But to the best of my recollection, no consideration was given to the morality of scientific research. As a student who had been offered a traineeship in what was then called Patent law, the debate seemed to me to be far removed from anything that was going to impact upon my career. The development of biochemistry and, in particular, the mapping of the genome, led to the realisation that human embryonic stem cells could be used as building blocks in research. Scientists still hope that stem cells can be used to find treatments for disabilities as diverse as spinal cord injuries, diabetes and Alzheimer’s disease. But there is a moral dilemma; the principal source of such stem cells is from excess embryos donated by fertility clinics.

The stems cells in question are obtained from supernumerary embryos. In vitro fertilisation produces a number of fertilised eggs of which only two are reintroduced into the mother. The remainder can be frozen, but under UK law they can only be kept for a maximum period of five years. The cells could be the source of human life but were unlikely to be so and were going to be destroyed in due course. Stem cell lines are known as pluripotent stem cells, derived from an eight-day old embryo (a blastocyst). By this stage, the cells could not be the source of human life but can differentiate into all other cells in the human body. It is the use of those cells that raises the issue of morality that has troubled the courts. The debate can be simply stated: where is the balance to be drawn between the need to safeguard the dignity and integrity of the person on the one hand and encouraging and rewarding stem cell research with a view to developing valuable methods of treatment on the other? There are two aspects to this. Should such research be permitted at all? If so, to what extent should the fruits of that research be patentable?

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“ Research into this field is inherently uncertain, speculative and expensive. It will only progress with extensive funding.” Underlying all this is that research into this field is inherently uncertain, speculative and expensive. It will only progress with extensive funding, which in the current financial environment means governmental, institutional or venture capital funding. The sole justification for investing is to gain rewards from commercialisation under the protection of a patent monopoly. Moral concerns have impacted both on the ability to carry out the research and on the patentability of the fruits of that research. The freedom to do the research has been the subject of vigorous debate in the United States. In 1993, President Clinton gave the National Institutes of Health authority to fund human embryo research. Limitations on such research was incorporated in a Bill passed by the US Congress known as the Dickey-Wicker Amendment which provided that: None of the funds made available in this Act may be used for – … (2) research in which a human embryo or embryos are destroyed … In 1988, James Thompson created the first human stem cell line using private funding. The view was taken that human stem cell lines did not fall under the definition, so that National Institutes of Health (NIH) funding for subsequent research was permissible. The pressures on the Bush administration were such that in 2001 a limit was placed on the number of preexisting embryonic cell lines that could be used for research which enjoyed federal funding. This led to a conflict with Congress. In 2005, the House of Representatives voted to allow research based on frozen embryos surplus to IVF needs and this was approved by the Senate in 2006, but President Bush vetoed the legislation under pressure from the right wing of the Republican Party and Right to Life campaigners. In 2009, President Obama used the Executive Order procedure to remove the restrictions on funding by the NIH for research involving new embryonic cell lines. But that was not an end of the debate. In Sherley v Sebelius it was alleged that funding authorised by the Executive Order was contrary to the Dickey-Wicker Amendment. A District Court injunction was overturned by a majority in the appeal court on the basis that it was arguable that the research was not contrary

to the Amendment; that whilst the initial derivation process requires the destruction of a human embryo, the particular research projects using the earlier derived stem cells did not involve the destruction of any further embryos and was therefore permissible. This led to the action being dismissed, a decision that was upheld by the Court of Appeal in 2012. Earlier this year the Supreme Court declined to hear an appeal. The position in the US now appears to be that, provided the research does not involve the destruction of human embryos, NIH funding is allowable. That the research is to be based on stem cell lines that had previously been derived from a human embryo is irrelevant. It is clear from the judgments of the Appeal Court that the morality aspect of the research weighed heavily in the background to their decision. Judge Brown stated: “ There are aspects of this case that… should trouble the heart. Even Dr James Thompson, the researcher credited with being the first to successfully derive human embryonic stem cells, has admitted: ‘If human embryonic stem cell research does not make you at least a bit uncomfortable, you have not thought about it enough’.” He concluded: “ The challenging – and constantly evolving – issues presented by bioethics are critical and complex. Striking the right balance is not easy and not, in the first instance, a task for judges. What must be defended is the integrity of science, the legitimacy of government, and the continuing vitality of concepts like human dignity.” The court felt that the legislation was sufficiently ambiguous to enable it to strike the right balance between research and morality – in favour of research. But that does not answer the second question: to what extent should the results of research involving the use of stem cell lines derived from human embryos be patentable? Here, the European Patent Office and the Court of Justice of the European Communities have been far more troubled than, apparently, has the USPTO.

LAW LIBERTY AND MORALITY IN THE AGE OF THE GENOME INNER TEMPLE YEARBOOK 2014–2015

Ever since 1973, Article 53 of the European Patent Convention has provided: European patents shall not be granted in respect of: inventions the commercial exploitation of which would be contrary to ‘ordre public’ or morality; such exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation in some or all of the Contracting States; The European Parliament picked up on this when it enacted the Biotech Directive in 1998. Article 6 repeated EPC Article 53, but went on to specify certain specific matters which were considered to be contrary to morality: ARTICLE 6 2. … the following in particular be considered unpatentable: … (c) uses of human embryos for industrial or commercial purposes; The problem: in order to obtain a patent, the invention must be capable of industrial application and therefore the sole question was what constituted “use” of human embryos. It was the Enlarged Board of Appeals of the EPO that first had to wrestle with the scope of Article 6.2(c) in Case G02/06 in 2008. The patent application in question arose from James Thompson’s original disclosure and was applied for by his University, Wisconsin Alumni Research Foundation. Not surprisingly the same factors were in play: morality as against scientific benefit, with the need to reward the expense of research by patents. The Enlarged Board came down in favour of morality and held that no patent should be granted. However, the EPO softened the potential blow by indicating informally that stem cell patents would be granted if they were applied for after 2002. The ostensible reason was that researchers no longer had to kill an embryo, since established cell lines could be purchased over the internet. Investment in future research was thus to be protected by the grant of patents for the fruits of that research – or was it? The German Patent Office granted a stem cell patent to Oliver Brüstle, which was opposed by

Greenpeace. The Federal Court of Justice referred a question relating to the interpretation of Article 6.2(c) to the Court of Justice of the European Community. Advocate General Bot made it clear that he was aware of the sensitivity of the questions that were asked, but he considered that his task was purely legal. This, with respect, would seem to ignore reality. He eventually concluded that since obtaining the pluripotent stem cell from the blastocyst necessarily involved the destruction of what he had held to be an embryo, this would “exploit the human body in the initial stages of its development”. He drew an analogy with the alleged killing of prisoners in the former Yugoslavia for the removal of organs for trafficking, which highly emotional reasoning belies his pretence at merely interpreting the words used. The court went further in holding that it was for national courts to decide whether pluripotent cells were human embryos, but otherwise endorsed the Advocate General’s opinion by concluding: Article 6(2)(c) of Directive 98/44 excludes an invention from patentability where the technical teaching which is the subject matter of the patent application requires the prior destruction of human embryos or their use as base material, whatever the stage at which that takes place and even if the description of the technical teaching claimed does not refer to the use of human embryos. However one looks at this conclusion it represents a pan-European view on where the line should be drawn between morality and research. It is no use suggesting that it only relates to patenting and does not prohibit the carrying out of research, since the inability to obtain a patent is bound to affect funding for research. It never crossed my mind when studying the jurisprudence of Lord Scarman and Professor Hart that their debate would impact on my professional life. But it has and I do not suppose we have seen the end of it. The pressure groups are still seeking to exert their influence. Maﬆer Thorley

“ It never crossed my mind when studying the jurisprudence of Lord Scarman and Professor Hart that their debate would impact on my professional life. But it has and I do not suppose we have seen the end of it.”

INNER TEMPLE CELEBRATE THE LIFE

Maﬆer Le Quesne by Sir George Newman

first met Godfray nearly 50 years ago. I have never met anybody else like him. It has been a great privilege to have enjoyed an unbroken friendship with him ever since. But then his life is marked by unbroken continuity of service in the things he did. He retired in 2007, 60 years after his Call to the Bar. He has been the much-loved inspiration to chambers and all its members for decades. We never lost him and he never failed to contribute to what went on. Even when he went to be Chairman of the Monopolies Commission for 12 years between 1975 and 1987, he was not out of contact. Then to our immense good fortune he came back as more than just a distinguished figure of the past with his name up. He resumed his practice in the Privy Council and grew to be an even more towering figure. He married Susan in 1963 and thereafter placed his love of the family before everything else. This included his deep love of music, orchestral and chamber concerts, music at the Wigmore Hall, music abroad, in particular at Bayreuth. Twenty years ago, he joined a choir and for 10 years he got particular pleasure from signing in all the great choral works. He became Treasurer of the Inner Temple in 1988. I know how much he valued being a Bencher of his Inn, let alone being elected Treasurer. When I was elected a Bencher of the Middle in 1989, he gave me a book, the memoirs of Sir John Rolt prepared by his father, C T Le Quesne, and printed by order of the Members of the Bench of the Inner Temple in 1939. He inscribed it to me as, “A memento of your election to the ‘only honour in the law worth having’”. He placed the phrase in quotation marks because, as he told me, he was quoting his father. The quality of Godfray’s life, his immense achievements and his quite exceptional character were borne of clear principled choices he made about what mattered. His father’s influence can be traced by looking at Godfray’s early life. Like his father he went up to Exeter College Oxford. Like his father he read Greats and again, following in the footsteps of his father, he became President of the Union before the Bar and the Inner Temple, where he was called in 1947. He became a pupil to Frank Gahan, who had an immense practice in the Privy Council, in the chambers founded by Sir Frank Soskice at 1 Harcourt Buildings.

In 1948, Godfray’s first appearance in the Privy Council is recorded in 1948 Appeal Cases. He was the junior to Frank Gahan, who in turn was being led by Godfray’s father. What pleasure it must have given Godfray to enjoy such rewarding continuity with his father within a year of being called. The case exemplifies the excitement and special quality of work of a Privy Council practitioner. It involved the seizure, on the high seas, of a vessel taking part in the illegal importation of immigrants into Palestine. Like his father, Godfray was a devout Baptist. He worshipped and was secretary at the church in Hampstead where his father had been secretary. He was, as has been pointed out by others, a very catholic Baptist. He worked with the World Council of Churches as well as the Baptist Church. All this gave rise to a voluminous amount of correspondence. I know this because the reverse side of the correspondence was used to record his submissions and to take notes in the course of hearings. I have to say that he did not seem to take many notes; he just listened. He wrote with a pencil for much of the time and he also subjected these pencils to a concept of longevity and unbroken service, shortening each one down until it became a stump, just capable of being grasped between his fingers. He never used notebooks and he kept a sharp eye out for any profligate use by us. If you did not write on both sides of the page, there could be trouble. Once Godfray made a decision, he remained loyal to it. This was not borne of obstinacy but was a product of the depth and tenacity of thought he applied in advance of the decision. This quality shaped the brilliance of his arguments in court and all the advice he tendered. In the professional context it made him probably the finest appellate advocate over more than half a century. He made an unusual and important career decision shortly after becoming a tenant in 1 Harcourt Buildings. Probably shortly after being led by his father, he decided that he would only practise in the Privy Council. The senior clerk was Frederick Nicholson – Freddie to everyone but Godfray. To mark his disapproval of the custom of shortening names, throughout the whole of the time I was there, he called him “Fredericks”. Physically, in stark contrast to the towering, slim Godfrey, he was a short rotund figure with a legendary ability to get the best work. They shared

“ One would see Godfray with his eyes closed waiting to make his response and Lord Wilberforce also with his eyes closed. Godfray would then go the lectern and the two of them would then demonstrate their complete command and recall of all the argument.”

a sense of humour but Fredericks was a bit taken aback by the decision to practise only in the Privy Council. The decision had the predictable result of generating a huge volume of work in the Privy Council for the benefit of all, but an unpredictable consequence on the shape chambers was to take, when in 1962 Godfray took silk and the Lord Chancellor took a decision, never before made and nor since, to order chambers to split. Apparently two silks in chambers were thought enough (probably because Godfray was one of them) and he ordered a split. Members had to decide whether to join with Godfray or Anthony Cripps. In the result, Godfray became Head of Chambers and our half retained all the Privy Council goodwill. Not even Godfray could have predicted this. The lasting consequence is the legacy represented by the chambers he formed and supported throughout his life. He had a profound impact on us all and enhanced our lives. Even the briefest encounter was an improving experience. He was kind and considerate but above all he listened. Having listened, he took time for thought, applied his powers of analysis and delivered a short, clear and authoritative response. Sometimes the silent thought process could be unnerving as he had an idiosyncratic habit of repetition, perhaps to allow more time for thought. He never diminished you. He could convey his disagreement or doubt by a phrase such as, “Well I think you might find assistance by taking another approach such as…” There have been a number of references since his death to his uncanny ability to listen whilst appearing to be asleep. It regularly occurred in the Privy Council, frequently as part of a double act with Lord Wilberforce who liked to close his eyes after lunch. One would see Godfray with his eyes closed waiting to make his response and Lord Wilberforce also with his eyes closed. Godfray would then go the lectern and the two of them would then demonstrate their complete command and recall of all the argument. Some people may have thought that the rarefied nature of his practice made him aloof and out of touch. They could not have been more wrong. He loved gossip. He talked to everyone in chambers to find out where they had been and what they were doing. Certainly he did not change his habits so as to reflect any current trend, as for years after others had given up doing so, he wore a black jacket, waistcoat, striped trousers, all topped with a black homberg hat. The bowler hat never received recognition. In summer he wore a boater. He travelled on the tube from Hampstead to the Temple, standing much of the way and reading a book. Someone has recently recalled him reading Decline and Fall with obvious pleasure. He was a man of habit. His route from 1 Crown Office Row to Downing Street began with a walk through Inner Temple Gardens to the gate at the bottom right. When we moved to 3 Hare Court, the Inner Temple Gardens option was not so obvious, but he always took it,

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weaving out of the back of Hare Court down to the Gardens. His strength as Head of Chambers was that he cared. He was, however, a dictator but a benevolent one. He decided on each member’s monthly contribution on the basis of what he considered fair and would send a personal note recording his decision. He loved to hear about your day in court at Balham or wherever. If there was any humour in it, he saw it and if he found it particularly amusing, he would utter one of his engaging guffaws. These are likely to have been enjoyed by members of the Inner Temple, after dinner, when he indulged in smoking a huge cigar. He relished life and acted so as to improve the lives of others. He played snooker in the crypt of the church in Hampstead every Sunday evening with the homeless and poor who came for contact night. While some may think the Judicial Committee of the Privy Council should, in essence, be the place where argument in complex cases should take place, Godfray saw it differently. He realised, probably as long ago as 1947, that it served a much greater social and legal purpose. Fascinating as so many of the cases were, its power to determine small land disputes, landlord and tenant cases and to set right injustice and unfairness in the lower courts has proved vital and is a continuing responsibility. I must recount to you a reminiscence about note taking. Not long before he retired, he was in the Committee Room in Downing Street with a junior from chambers. A sheet of Baptist Church correspondence, duly reversed, was ready for note taking. A short stubby pencil, seeing out its last days of use was on the table. Opposing counsel had been at the lectern for some time, when for no apparent reason because of the content of the argument, Godfray took up the pencil and made a note. Most of their Lordships were kick started by his action and followed suit. When the junior had a chance, he looked across to see what had been noted. There was only one word “milk”. On the way back to the Temple, the junior asked why he had written down “milk”. He replied, “Well, Susan asked me to bring home some milk and I thought I had better make a note.” At an address given by Professor. Fiddes at the funeral in Hampstead, an instance of Godfray’s relish for life was given. A colleague saw Godfray leaving the National Archives. He followed but before he was able to catch him up, Godfray paused, pulled a small branch of a tree towards his face and sniffed at the blossom, he then stopped to stroke a cat on a wall. He took pleasure from the little things that make up a day. In summary, we have a commitment to the family, to long and loyal service, consistency, a witness to truth and justice, a generosity of spirit, humour, a love of community and the gift of listening. If one could keep faith with but some of the principles, his legacy will be sustained. Sir George Newman

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Unjust Enrichment

Notes from a lecture by Professor Andrew Burrows QC Professor of the Law of England, University of Oxford and Fellow of All Souls College

The Restatement of Unjust Enrichment Project

t seemed to me that the position had been reached when it would help everyone with an interest to try to state as clearly and succinctly as possible what the present law is on unjust enrichment; hence the idea of a Restatement of Unjust Enrichment Project. The project was novel in two senses. First, while restatements – non-binding but statute-like formulations of the law – are commonplace in the USA, they have never had a role to play in England and Wales. This is a lacuna in our system. My hope is that the Restatement will be persuasive in the courts, supplementing and enhancing our understanding of the common law. Secondly, I put together an advisory group of academics, judges and practitioners. My own view is that this collaboration worked extremely well and it was a rich and rewarding exercise. What has been aimed for is the best interpretation of the present law. On some matters, the Restatement takes a principled interpretation of the law that may be regarded as going further than the existing cases. It may help to think of this as a ‘principled’ or ‘progressive’ Restatement. This is not a purported European codification of unjust enrichment. I make no point about whether European legal harmonisation is a desirable or feasible goal. But it is essential that the subtleties of English law are properly understood before there is consideration of whether they should be abandoned in favour of a European approach. The finished product comprises a 36 section restatement and commentary, which makes extensive use of hypothetical or real examples in the belief that this is commonly the best way of understanding the law.

The substantive content of the Restatement

he Restatement is underpinned by the fourfold conceptual structure for unjust enrichment that has come to be recognised by the English courts. According to this, every unjust enrichment claim involves asking four distinct questions: 1) Has the defendant been enriched? 2) Was the enrichment at the claimant’s expense? 3) Was the enrichment at the claimant’s expense unjust? 4) Are there any defences?

The most important theoretical question is the third, the unjust question. The Restatement adopts the standard English approach to that question, whereby the claimant must identify an unjust factor, for example, mistake, failure of consideration, duress, undue influence, or the unlawful obtaining of a benefit by a public authority, the so-called Woolwich principle. The Restatement accepts that the restitution that responds to an unjust enrichment may be personal or, in certain circumstances, proprietary. The standard restitutionary response is a personal right to a monetary restitutionary award measured by the value of the enrichment received by the defendant. In contrast to personal restitution, the major practical importance of proprietary restitution is that it gives priority to the claimant on the defendant’s insolvency. Finally, the law of unjust enrichment comprises aspects of both common law and equity. It is a myth to think that equity is more discretionary and less principled than the common law. The Restatement presents an integrated view.

“ My hope is that the Restatement will be persuasive in the courts, supplementing and enhancing our understanding of the common law.”

UNJUST ENRICHMENT INNER TEMPLE YEARBOOK 2014–2015

Recent cases

wo important cases on the law of unjust enrichment in the Supreme Court in 2013 cited my Restatement, although not necessarily with approval: Pitt v Holt and Benedetti v Sawiris.

Pitt v Holt

Pitt v Holt raised the long debated question as to what the test for mistake should be, in relation to the restitution of gifts and other voluntary dispositions. The law on the restitution of mistaken payments has been expanded over the last 35 years. The courts have moved to a general ‘but for’ causation test departing from the old, more restrictive, ‘supposed liability’ test. Prima facie, one is entitled to restitution of a mistake. The second development, expanding recovery for mistaken payments, was that the old general law, that one could not recover for mistakes of law as opposed to fact, was departed from in Kleinwort Benson v Lincoln CC. The Restatement explicitly left open whether the test of mistake for gifts should be more restrictive

being applied. It suggests that something more serious than a mere ‘but for’ test is required to rescind gifts and voluntary dispositions, but it does not explain what that more serious test is other than by a resort to the justice of the case on the facts. It did not offer even tentative answers to the problems posed in the Restatement. The second criticism is that the judgment does not place the issue at stake in its full legal context. Lord Walker confined himself to talking of rescission in equity and trusts law. He said nothing about the restitution of gifts at common law. If a claimant brings an action for money had and received for a mistakenly paid gift of money, does the Pitt v Holt test apply, or are we to apply a wider ‘but for’ test? If so, how can such a distinction be justified? It has been suggested that the narrower test in Pitt v Holt is best rationalised as applying only where the restitution is proprietary. On the facts, here they were reversing, or pulling back, a trust. It is inapplicable to a standard personal claim for restitution. For example Sir Terence Etherton in his 2013 lecture to the Association of Contentious Trust and Probate Specialists. But there is not a

“ Pitt v Holt has raised as many questions as it has answered.” than a ‘but for’ causation test. We hoped that this would be decided in Pitt v Holt. Unfortunately, the uncertainty on this question was not resolved. Pitt v Holt involved a mistake of law in relation to tax in the domestic context of a voluntary disposition following a tragic accident. Mrs Pitt was initially the receiver for her husband and, on taking professional investment advice, the damages she received on behalf of her husband were used in 1994 to create a discretionary special needs trust. But Mrs Pitt, through those advising her, failed to think through the inheritance tax implications, which could have been entirely avoided by simple amendments to the terms of the trust. Mr Pitt died in 2007 and Mrs Pitt, as his personal representative, sought to rescind the trust. The claim for rescission for mistake succeeded. Lord Walker gave the sole judgment with whom the other six Supreme Court justices agreed. On the central issue of what the test for mistake in gifts and voluntary dispositions should be; is more than ‘but for’ causation needed, Lord Walker reasoned that there needs to be a causative mistake of sufficient gravity that, on the facts, it would be unjust or unconscionable to leave the mistake uncorrected. He rejected as too narrow the idea that only a mistake as to the effect of a disposition, not its consequences, should trigger rescission. In deciding whether the mistake was of sufficient gravity there should be a close examination of the facts, as it also needed to be decided objectively whether it would be unjust or unconscionable to leave the mistake uncorrected. As regards the examples given in the Restatement to try to tease out the answer, Lord Walker commented that, “It's impossible, in my view, to give more than the most tentative answer to the problems posed by Professor Andrew Burrows in his Restatement of the English Law of Unjust Enrichment: we simply do not know enough about the facts.” Although a very elegant and learned judgment, I would make two criticisms. First, it lacks clarity on the test

hint of that rationalisation in Lord Walker’s reasoning and we simply do not know what the Supreme Court’s view on this is. The conclusion is that Pitt v Holt has raised as many questions as it has answered.

Benedetti v Sawiris

Benedetti v Sawiris was concerned with the valuation of enrichment, namely services. Mr Benedetti worked in, and owned companies that operated in, the telecommunications business. He performed services, loosely describable as brokerage services, which led to the defendant purchasing an Italian communications company. Benedetti performed services in the expectation that a contract for payment in the form of shares would be concluded, but no such contract was concluded. The case was therefore argued in the Supreme Court on the assumption that the claimant’s only possible entitlement to payment was in the law of unjust enrichment for restitution of the value of the requested services performed. Mr Benedetti had already been paid €67 million, but he said that that the defendant valued his services at far higher. The Supreme Court decided that, as the market value of the services Mr Benedetti had performed had been established to be €36.3 million, he had already been paid more than he was entitled to in the law of unjust enrichment. In reaching that conclusion, the Supreme Court embarked on the most careful analysis of the concept of enrichment and its valuation in the law of unjust enrichment that we have seen in this, or any other, jurisdiction. The leading judgment was given by Lord Clarke. It is a superb judgment. He explained that the starting point is to take an objective view of the benefit. But, in order to respect the freedom of choice of the defendant, that objective starting point must give way to the recognition of so-called “subjective devaluation”. That is,

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“ The rationality and clarity of judicial decisionmaking in this area has improved from those dark days of quasi-contract.” one must recognise, that what might be a benefit to a reasonable person may not be a benefit to the particular defendant; and that the price which a reasonable person would pay, as reflected in the market value, may not be the price the particular defendant would pay. The recognition of subjective devaluation was not in dispute but the claimant was using it as a launch-pad for his arguments in respect of subjective revaluation or overvaluation. However, Lord Clarke made clear that this converse idea of subjective revaluation or overvaluation ought to have no place, subject perhaps to exceptional circumstances, in the law of unjust enrichment, because recognising subjective revaluation is unnecessary in order to protect the defendant’s freedom of choice and autonomy. To go above the market rate, a claimant would need to establish a contractual entitlement; and Lord Clarke cited with approval the rejection of subjective revaluation in two hypothetical situations set out in my Restatement. Mr Benedetti’s attempts to argue that he was entitled to more than the market rate because of the defendant’s subjective revaluation of his services therefore failed as a matter of principle.

In any event, Lord Clarke went on to say that, on the facts, there was no evidence that could be used to establish subjective revaluation: the agreement for the shares had not been concluded, and dealt with different circumstances; and a sum agreed to be paid in settlement of the dispute did not reflect the price the defendant would have paid for the services, it was designed to remove the hassle and cost of litigation, not valuing the services in any real sense. I will not go into minor quibbles on Lord Clarke’s judgment, nor will I go through Lord Reed’s judgment, which does repay careful examination, differing in reasoning from Lord Clarke, but ultimately not in result. Unjust enrichment has transformed over the last 50 years. The rationality and clarity of judicial decision-making in this area has improved from those dark days of quasi-contract. It has represented something of a triumph for a close working relationship between judges, the Bar and academia. Professor Andrew Burrows �� (�on), �� 17 February 2014

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INNER TEMPLE YEARBOOK 2014–2015

“ The Nearest Run Thing You Ever Saw in Your Life”

Just a day after the Battle of Waterloo, Inner Temple member and diarist Thomas Creevey was the first to interview the Duke of Wellington and first to hear the now immortal, though oft misquoted, phrase. Introduction by Celia Pilkington

homas Creevey (1768–1838) was a Whig politician, diarist and letter writer. He was also a member of the Inner Temple and was called to the Bar in 1794. After a very short period at the Bar, he became MP for Thetford in 1802. His greatest legacies were his copious, amusing letters and journals written throughout his life. These preserve the fascinating adventures and observations of a man who purely through his hugely entertaining personality was welcomed with open arms into every great Whig house in the land. Accounts of the decoration and meals he received were recorded in great detail. Amidst rooms covered with the brightest yellow satin or genoa velvet, and gilding worth a fortune on the roofs of all the rooms and the doors. Lytton Strachey wrote that, for Creevey, “life passed amid a succession of juicy chops, gigantic sirloins, plump fowls, pheasants stuffed with pâté de foie gras, gorgeous Madeiras, ancient Ports”. Only once did he appear ruffled and that was when the House of Commons introduced an Act to authorise the building of the first railway. He attempted to garner support in Parliament against this but, luckily for us, lost his fight and so found himself invited to the opening ceremony of the Liverpool to Manchester Railway on 15 September 1830, about which he wrote in his journal: “Lady Wilton sent over yesterday from Knowsley to say that the locomotive machine was to be upon the railway at 12 o’clock. I had the satisfaction, for I can’t call it pleasure, of taking a trip of five miles on it, which we did in just a quarter of an hour – that is 20 miles an hour. The machine was really flying, and it is impossible to divest yourself of the notion of instant death to all upon the least accident happening. It gave me a headache which has not left me yet.”

He lived most of his life almost penniless. His friend Greville remarked of him in 1829 that, “old Creevey is a living proof that a man may be perfectly happy and exceedingly poor. I think he is the only man I know in society who possesses nothing.” One of his greatest accounts was recorded when he interviewed the Duke of Wellington following the Battle of Waterloo. He was living in Brussels at the time of Waterloo and is perhaps best remembered for his description of life there during Napoleon’s ‘Hundred Days’. As Lytton Strachey commented, Creevey, “throughout his life, had a trick of being ‘in at the death’ on every important occasion; in the House, at Brooks’s, at the Pavilion, he invariably popped up at the critical moment; and so one is not surprised to find him at Brussels during Waterloo.” The following is Thomas Creevey’s account of his meeting with the Duke of Wellington on 19 June, the day after the Battle of Waterloo, which was originally published in The Creevey Papers, Volume I (1909): “At about 11 o’clock, upon going out again, I heard a report that the Duke (of Wellington) was in Brussels; and I went from curiosity to see whether there was any appearance of him or any of his staff at his residence in the Park. As I approached, I saw people collected in the street about the house; and when I got amongst them, the first thing I saw was the Duke upstairs alone at his window. Upon his recognising me, he immediately beckoned to me with his finger to come up.”

The Duke of Wellington at Waterloo by Robert Alexander Hillingford

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It may seem improbable that the Duke should have made himself so accessible to a mere civilian on such a momentous morning, but there is ample confirmation of Thomas Creevey’s narrative from the Duke’s own lips. In 1836, he described the meeting to Lady Salisbury, who would later go on to note it in her own, unpublished, journal. “I met Lord Arthur Hill in the ante-room below, who, after shaking hands and congratulation, told me I could not go up to the Duke, as he was then occupied in writing his dispatch; but as I had been invited, I of course proceeded. The first thing I did, of course, was to put out my hand and congratulate him [the Duke] upon his victory. He made a variety of observations in his short, natural, blunt way, but with the greatest gravity all the time, and without the least approach to anything like triumph or joy. ‘It has been a damned serious business,’ he said. ‘Blucher and I have lost 30,000 men. It has been a damned nice thing – the nearest run thing you ever saw in your life. Blucher lost 14,000 on Friday night, and got so damnably licked I could not find him on Saturday morning; so I was obliged to fall back to keep up my communications with him. Then, as he walked about, he praised greatly those Guards who kept the farm (meaning Hugomont) against the repeated attacks of the French; and then he praised all our

troops, uttering repeated expressions of astonishment at our men’s courage. He repeated so often it being so nice a thing – so nearly run a thing, that I asked him if the French had fought better than he had ever seen them do before. ‘No,’ he said, ‘they have always fought the same since I first saw them at Vimeira.’ Then he said: ‘By God! I don’t think it would have done if I had not been there. When I left the Duke, I went instantly home and wrote to England by the same courier who carried his dispatch. I sent the very conversation I have just related to Bennet. I think, however, I omitted the Duke’s observation that he did not think the battle would have been won had he not been there, and I remember my reason for omitting this sentence. It did not seem fair to the Duke to state it without full explanation. There was nothing like vanity in the observation in the way he made it. I considered it only as meaning that the battle was so hardly and equally fought that nothing but confidence of our army in himself as their general could have brought them thro’. Now that seven years have elapsed since that battle, and tho’ the Duke has become very foolishly, in my opinion, a politician, and has done many wrong and foolish things since that time, yet I think of his conversation and whole conduct on the l9th – the day after the battle – exactly the same as I did then: namely that nothing could do a conqueror more honour than his gravity and

“ Nothing could do a conqueror more honour than his gravity and seriousness at the loss of lives he had sustained, his admission of his great danger, and the justice he did his enemy.”

1881 painting by Lady Butler depicting the start of the cavalry charge of the Royal Scots Greys who charged alongside the British heavy cavalry at the Battle of Waterloo in 1815.

“ T HE NEAREST RUN THING YOU EVER SAW IN YOUR LIFE” INNER TEMPLE YEARBOOK 2014–2015

“ My great surprise was at not being more horrified at the sight of such a mass of dead bodies. On the left of the road going from Waterloo to Mont St Jean, and just close up to within a yard or two of a small ragged hedge which was our own line, the French lay as if they had been mowed down in a row without any interval.” seriousness at the loss of lives he had sustained, his admission of his great danger, and the justice he did his enemy. I may add that, before I left him, I asked whether he thought the French would be able to take the field again; and he said he thought certainly not, giving as his reason that every corps of France, but one, had been in the battle, and that the whole army had gone off in such perfect rout and confusion he thought it quite impossible for them to give battle again before the Allies reached Paris. On Tuesday the 20th, the day after this conversation with the Duke, Barnes and Hamilton would make me ride over to see the field of battle, which I would willingly have declined, understanding all the French dead were still on the field unburied, and having no one to instruct me in detail as to what had passed I mean as to the relative positions of the armies. However, I was mounted, and as I was riding along with Hamilton’s groom behind me about a mile and a half on the Brussells (sic) side of the village of Waterloo, who should overtake me but the Duke of Wellington in his curricle, in his plain clothes and Harvey by his side in his

regimentals. So we went on together, and he said as he was to stop at Waterloo to see Frederick Ponsonby and de Lancey, Harvey should go with me and show me the field of battle, and all about it. When we got to Waterloo village, we found others of his staff there, and it ended in Lord Arthur Hill being my guide over every part of the ground. My great surprise was at not being more horrified at the sight of such a mass of dead bodies. On the left of the road going from Waterloo to Mont St Jean, and just close up to within a yard or two of a small ragged hedge which was our own line, the French lay as if they had been mowed down in a row without any interval. It was a distressing sight, no doubt, to see every now and then a man alive amongst them, calling out to Lord Arthur to give them something to drink. It so happened that Lord Arthur had some weak brandy and water in his holster, and he dismounted to give some to the wounded soldiers. It was a curious thing to see on each occasion the moderation with which the soldier drank, and his marked good manners. They all ended by saying to Lord Arthur: ‘Mon general, vous êtes bien honnête’.”

INNER TEMPLE CELEBRATE THE LIFE

Maﬆer Sumner by Maﬆer Thorley

hristopher was in all respects the perfect gentleman. He was called to the Bar in 1961 and practised from 12 King’s Bench Walk until his appointment to the Circuit Bench in 1987. His integrity, fair-mindedness, and dedication shone through his practice. The father of a very great friend of Christopher who practised at the New Zealand Bar said to his son, “If your pal Sumner is representative of 12 KBW and the English Bar, then its reputation for skill and conduct must be in very safe hands”. Indeed Christopher was representative of the very best of the English Bar; total integrity, complete fairness, hard work, utter commitment, and never sailing the wrong side of the wind. In a notable case, the County Court Judge sitting at Canterbury refused to make a possession order in favour of one of two joint landlords. Christopher, who had not been instructed at the trial, was consulted on behalf of the unsuccessful landlord. He advised an appeal to the Court of Appeal. He lost, but, it might be said, not quite. For he had persuaded one of the three judges that his argument was correct and that judge dissented. Christopher advised an appeal to the House of Lords. He won, their Lordships adopting the judgment of the dissenting judge. You will find that case, Tilling v Whiteman, deservedly reported in the 1980 Appeal Cases. But Christopher’s victory has another distinction, possibly unique, in that he had overturned the decision of his own father, HH Judge Donald Sumner QC, the trial judge. In 1987, Christopher was appointed to the Circuit Bench, and at a time when his father was still a full time judge. His appointment was welcomed on all sides. Nobody had any doubts that he would be a success. However, matters got off to an inauspicious start on his very first day of sitting in court. This is how he himself described it in a speech he later gave and which illustrates his acute sense of humour. “My first time as a full-time judge was memorable. I had not allowed quite enough time to drive to court. I had picked up a pencil case in rather a frenzy. Having briefly looked at the papers, I carried on into court. It was packed. Amongst the serried ranks of barristers and solicitors was one I knew particularly well. He had that look about him which suggested that there was something not quite right about my apparel. I looked down and saw that the pencil case which I had picked up was one of my children’s and had on it Paddington Bear. I tried to keep a straight face, not too pompous, not too frivolous, as I climbed up the three steps to my chair. Whether it was the pencil case or something else, I tripped over the top step and hurtled out of control towards my chair. I had the presence of mind to turn round so that I would hit the chair the right way round. All might have been well had the chair not had wheels on it. It took off, with me clutching the arms, until it was brought to an abrupt halt by the wall behind. At that moment my wig fell across my face.

If you can retain control after that with most of the spectators doubled up with mirth, then you are very fortunate”. But Christopher did quickly take control of his court, then, and on every subsequent day as a judge. He pioneered a new approach to the daily work of a judge. Instead of slavishly following the order of cases in his list as devised by the court officials, he would have all the litigants and lawyers into court, sort out the batting order, thus leading to a brisk and fair dispatch of business. It was thus no surprise when in 1996, he was elevated to the High Court Bench and sat in the Family Division. Here, at a judicial level where the most serious cases are tried, Christopher proved himself again. That sense of calm, good order, courtesy and wise judgment, which he had displayed in the County Court carried into his work in the High Court. One of his best qualities as a judge was his humanity, in particular to the losing party, to whom he delivered the bad news as considerately as possible – an art so necessary in family disputes yet so difficult to achieve. He was, too, so considerate to his judicial colleagues. One Monday morning Christopher learned that a QC, sitting as deputy High Court Judge in the RCJ, had that weekend suffered the loss of a very close friend and professional colleague. Christopher went to his room and accurately assessed the situation. He gave the deputy judge a direct and very firm order (with the threat of an injunction if he disobeyed) to leave the building immediately and not to give any thought to the consequences either for the cases listed or for his duty to the court. Christopher took over his list and disposed of it on top of his own. Whilst on the bench Christopher took on an extra burden – how typical of him – of serving two spells with the Judicial Studies Board between 1991 and 1996 and again between 1999 and 2005, becoming Director of Studies and Chairman of Family Law. His contribution to the full-time and part-time judges, who were fortunate to be on courses on his watch, was incalculable. He also was much concerned with judicial welfare, assisting the judiciary at all levels to lead less stressful professional lives. Just before he went into hospital a year ago he wrote in an email to his children that his family was his proudest achievement. Carole and he were married in 1970 in Chelsea Old Church. Their marriage was one of enormous happiness and was the bedrock upon which he built his professional and private life. He used to encourage his children to look around their world, whether it was art, culture, music or wine, and say, “you do not need to know anything about them, you just need to have a view”. At the dinner table, when the children were older, Christopher would pour, for each child, two glasses of wine each from a different bottle and ask them to choose the one they preferred. It was a little while before Christopher rumbled their tactics of choosing the

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less good wine so that they had more of it to themselves. Christopher called his family, “his legacy”. Nothing could illustrate that better than when in August of this year [2013] he came from hospital to the wedding of Will and Sarah. He was, as always, immaculately dressed. His face was lit up with intense pleasure, his hands conducting Mozart’s music which he so loved. He was supremely happy surrounded by his family who meant so much to him. He returned to hospital and two days later he died. Whether with his family or friends or in his professional life, Christopher was indeed the quintessential gentleman – a man of infinite courtesy, of genuine concern for the welfare of his fellow human beings, and with a deep,

deep love of his family. It is a remarkable testimony to Christopher and his unfailing good humour, humility and kindness that one never heard a bad word spoken of him. As one person wrote to the family “Oh, that we might all aspire to live such a brilliantly successful life with such grace and decency”. Or, as another wrote, invoking the words of Chaucer, Christopher was the epitome of a “very parfait, gentle knight”. Maﬆer Thorley

“ That sense of calm, good order, courtesy and wise judgment, which he had displayed in the County Court carried into his work in the High Court. One of his best qualities as a judge was his humanity, in particular to the losing party, to whom he delivered the bad news as considerately as possible – an art so necessary in family disputes yet so difficult to achieve. ” Magna Carta Uncovered by

Anthony Arlidge and Igor Judge 2015 marks the 800th anniversary of the grant at Runnymede of Magna Carta.The story of how Magna Carta came into being, and has been interpreted since, and its impact on individual rights and constitutional developments has more twists and turns than any soap opera. The authors bring their legal experience and interpretative skills to uncover the original meaning of the liberties enshrined in Magna Carta, and to trace their development in later centuries up to the drafting of the Constitution of the United States of America. By providing that the powers of the King were not unlimited, the Charter was groundbreaking, yet it was also a conservative document, following the form of Anglo-Saxon charters and seeking to return government to the ways of the Norman kings. This book tells the enthralling, ultimately inspirational, story of Magna Carta in a concise and readable fashion and will captivate laymen and lawyers alike. Anthony Arlidge has been a Queen's Counsel for over 30 years. In 1990 he was called upon during a case to argue the meaning of clause 40 of Magna Carta. Igor Judge was a judge for 25 years and retired as Lord Chief Justice of England and Wales in 2013. Nov 2014 204pp Hbk 9781849465564 RSP: £30 20% Discount: £24

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Singapore Sling: The Inner Temple Summer Party

THE INNER TEMPLE SUMMER PARTY INNER TEMPLE YEARBOOK 2014–2015

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The Common Law and the ECHR From a lecture by Maﬆer Reed

oes the common law still have a meaningful role to play in the era of Convention rights? Are the judgments of the Strasbourg Court ‘authorities’ as we understand that term? Some years ago, I spent a few weeks with the criminal chamber of the Cour de Cassation in Paris, which is the highest criminal appeal court in France. The President of the Court made the sign of a cross when he first met me, jocularly warding off the evil influence of the Strasbourg Court, on which he knew I had recently been sitting. During my time with the French court, the Convention was rarely referred to, and I cannot recollect any occasion when reference was made to a judgment of the Strasbourg Court. The French judges did not appear to regard it as their function to attempt to anticipate how the Strasbourg Court might view French law or practice. Other contracting states do not construct domestic jurisprudence on the articles of the Convention, based on the case law of the Strasbourg Court. Further, ways in which contracting states comply with the Convention vary greatly from one system to another, and this country has a high reputation as an upholder of

human rights and democratic values, based on domestic traditions, which are much older than the ECHR. There is a striking contrast between the approach taken to human rights in law in France and the approach taken in this country. If you watch a hearing in our higher courts, you are likely to be struck by the amount of time counsel spend citing judgments of the Strasbourg Court, which are analysed usually in much the same way as if they were judgments of our own courts. You may also be struck by a comparative lack of attention to our domestic legal tradition, or to the judgments of courts in other common law jurisdictions. Indeed, cases are sometimes argued entirely on the basis of Strasbourg authorities. As counsel once assured me, it is quicker just to look at the Strasbourg cases. Either the domestic law is in conformity with the Convention, in which case it adds nothing to the Strasbourg cases, or it is not, in which case it is equally pointless to examine it. That approach is said to follow from the effect given to the Convention and to the case law of the Strasbourg Court by the Human Rights Act of 1998. In a number of recent judgments however, the Supreme Court has adopted a different approach.

THE COMMON LAW AND THE ECHR INNER TEMPLE YEARBOOK 2014–2015

“ The domestic law of the UK has protected human rights more consistently, and over a longer period of time, than any other legal system.”

First, S v L, a family law appeal, was concerned with legislation under which the court can dispense with parental consent to adoption. The Supreme Court was referred to numerous Strasbourg cases concerned with Article 8 of the Convention, which guarantees the right to respect for family life. We were asked to interpret the legislation in accordance with those cases, as required by Section 3 of the Human Rights Act. In the majority judgment, which I delivered, I found it unnecessary to use Section 3, emphasising that common law principles of statutory interpretation require legislation to be interpreted in accordance with the fundamental values of our society, values that include respect for the rights of parents. The result arrived at, under our domestic law, was also in conformity with Convention rights. The second appeal I want to mention is R (Sturnham) v Parole Board. That case was concerned with applications for damages under Section 8 of the Human Rights Act, against the Parole Board, which had failed to hear applications speedily, as required by Article 5(4) of the Convention. We were again referred to an enormous number of Strasbourg judgments, about 80. In the majority judgment, which I delivered, I described the ordinary approach as

being one where the courts endeavour to apply and, if need be, develop the common law, and interpret and apply statutory provisions, so as to arrive at a result which is in compliance with the UK’s international obligations, the starting point being our own legal principles, rather than the judgments of an international court. I said that while it would remain necessary to check that our law did not fall short of Convention standards, we should have confidence in our own case law under Section 8 once it had developed, and not be perpetually looking to the case law of an international court as our primary source. The third appeal I want to mention is Bank Mellat v HM Treasury (No 2), which was concerned with the proportionality of an order preventing the UK financial sector from doing business with an Iranian bank, which had been involved in arrangements for the financing of the Iranian nuclear missile programme. I wrote a dissenting judgment in that case, but my colleagues agreed with what I said about the principle of proportionality. In applying this principle, the Strasbourg Court recognises that it is less well placed than a national court to decide whether an appropriate balance

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has been struck in the national context. It recognises that many questions of proportionality turn on an assessment of the social conditions, the culture and the values of a particular society, which is best carried out by institutions operating within that society. For that reason, in the Convention case law, the principle of proportionality is linked to the margin of appreciation. That concept does not apply in the same way at the national level, where the degree of restraint practised by courts in applying the principle of proportionality and the extent to which they will respect the judgment of the primary decision maker will not only depend on the context, but may reflect national traditions and national culture. The last appeal I want to mention is Osborn v Parole Board, concerned with the right to a fair hearing. The submissions in that case focused on Article 5(4) of the Convention and paid comparatively little attention to domestic, administrative law. The approach that counsel had adopted did not properly reflect the relationship between domestic law and Convention rights. The guarantees set out in the Convention are mostly expressed at a very high level of generality. They have to be implemented at national level through a substantial body of much more specific domestic law.

fundamental reasons for our courts to take our domestic law as a starting point and to check compliance with Convention rights at a later stage in the analysis. One factor is the reputation of a common law. The domestic law of the UK has protected human rights more consistently, and over a longer period of time, than any other legal system I know. For example, habeas corpus has existed in its modern form since the 16th Century. The independence of the judiciary has been protected by statute since the end of the 17th Century. Freedom from legal searches of premises or correspondence has been protected under the common law since the 18th Century case of Entick v Carrington. Slavery was held to be unlawful at common law at about the same time, in the case of Somerset. Many, many more examples could be given. One would expect that the requirements of a Convention can usually be met by our domestic law without having to rely specifically on the Human Rights Act. For example, as the Supreme Court explained in S v L, the special interpretative duty imposed by Section 3 of the Act arises only where legislation would result in a breach of the Convention rights. Drawing together the threads, the Strasbourg Court’s aim is not to construct a code to be adopted by the 47 contracting states. It is developing a body

“ The protection of human rights is not a discreet area of the law based on the case law of the Strasbourg Court, but permeates our legal system.” For example, the guarantee of a fair trial under Article 6 is fulfilled primarily through detailed rules and principles to be found in several areas of our law, including a law of evidence and procedure, administrative law, and the law relating to legal aid. The guarantee of a right to respect for private and family life under Article 8 is fulfilled primarily through rules and principles found in the law of tort, family law and constitutional law. Article 5 is implemented through several areas of the law, including criminal procedure, the law relating to sentencing, mental health law and administrative law. Indeed, Article 5(4), an issue in Osborn, is said to be inspired by the English law of habeas corpus. As these examples indicate, the protection of human rights is not a discreet area of the law based on the case law of the Strasbourg Court, but permeates our legal system. The Convention taken by itself is simply too unspecific to provide the guidance necessary in a state governed by the rule of law. As the Strasbourg Court itself has said: “A norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct.” The Convention cannot be treated as if it were a legal code. It has also long been the practice of the courts to take account of those obligations in the development of a common law and in the interpretation of legislation. The Human Rights Act is an important piece of legislation, but it does not supersede the protection of human rights under the common law or statute. Human rights continue to be protected principally by our domestic law, interpreted and developed in accordance with the Act when appropriate. As the judgments in these four recent appeals make clear, we should not neglect the development of our own legal tradition of human rights protection. There are

of high-level principles, which can be taken to be applicable across different legal traditions. Bearing that in mind, we need to identify the principles underlying the authorities on a particular topic. We can then develop our law by finding the best way, faithful to our own legal tradition, of giving expression to those principles. If we do so, our domestic legal tradition can continue to develop. Viewed in this way, the Human Rights Act and the Convention rights to which it gives effect need not be regarded as exotic interlopers sitting apart from the common law, but rather as guaranteeing standards which have deep roots in the common law and in our parliamentary tradition. The protection of human rights is not something alien to us. It is deeply embedded in our legal and political culture. The Convention system is a particular way of institutionalising respect for human rights at the international level. It is of practical importance at that level, because internationally agreed and enforced standards of human rights protection can facilitate international co-operation in many fields. This country has regarded it as being in its best interests to take part in international arrangements incorporating the Convention, such as the EU. If the UK is to comply with the obligations which are undertaken at the international level, its domestic law has to meet those internationally agreed standards. The Human Rights Act is one means by which Parliament has sought to achieve that objective. Properly understood, it does so not by supplanting the common law, but primarily by supporting its continuing development in step with this country’s international obligations. Maﬆer Reed 11 November 2013

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INNER TEMPLE EVENT

Tosca

Maﬆer Laws reviews Opera Brava’s production of Tosca in the Inner Temple Garden

y tabby cat was named Tosca, after my favourite opera. I first saw the Zeffirelli production in the 1970s – too late for Callas, but still it was wonderful. And Opera Brava’s performance in the Inn’s Garden on 19 June was a delight. It had to be small scale and with a simple set. (In Act 3 Tosca had to shoot herself rather than jump over the battlements of the Castel Sant’Angelo.) The singing had real quality, though I thought Tosca (Katrina Sheppeard), while very powerful, was slightly shrill, with perhaps a little too much vibrato. I much admired Cavaradossi (Cameron Rolls) and Scarpia (Francis Church); though my experience of their performance had a surreal quality because Cavaradossi bore a striking similarity to my friend Mark Stephens (of Messrs Stephens Innocent), and Scarpia an even closer resemblance to Sir David Calvert-Smith; though the latter concordance was strangely apt, given Sir David’s sometime role as Director of Public Prosecutions. What specially marked out this production, I think, was that it featured a young Scarpia, and so gave an erotic energy to Act 2 which was utterly watchable – except for the chap putting his head round the door from time to time to report on the progress of Cavaradossi’s torture, which lent a humdrum air to the proceedings. I wondered whether Tosca’s laying a crucifix on the breast of the dead Scarpia at the end of the act was meant as an acknowledgement of the Zeffirelli production, in which she placed candlesticks at his head and feet; but the performance was entirely distinctive in its own terms. In Act 3, Cavaradossi got better and better; “O dolci mani” was wonderful. The opera was sung in English – “O dolci mani” became “Hands So Tender” – and I wondered at the beginning how that would come over. I had only ever heard it in Italian. But Edmund Tracey’s translation was simple and unforced; if anything, it added to the pleasure of the evening. The whole thing was a delightful experience, and I hope we shall see Opera Brava in the Inner Temple Garden again. I see they’re doing Carmen next year… I had one small gripe: I couldn’t see the point of setting the story in fascist Italy. My cat Tosca has long since gone to sleep with her fathers; I now have a cat called Lysistrata, and am looking forward to an opera named after her. Maﬆer Laws

TOSCA INNER TEMPLE YEARBOOK 2014–2015

“ The whole thing was a delightful experience, and I hope we shall see Opera Brava in the Inner Temple Garden again. I see they’re doing Carmen next year…” 35

INNER TEMPLE CELEBRATE THE LIFE

Maﬆer Kingsdown L

ord Kingsdown, formerly Robin Leigh-Pemberton, who died aged 86, was Governor of the Bank of England during a decade scarred by banking collapses, market turbulence and vigorous disagreements over monetary policy. Both Leigh-Pemberton’s appointment in 1983 and his handling of crucial incidents of his governorship were much criticised. But an urbane manner, transparent integrity and skill as a chairman – rather than as a technocrat – saw him through. He enjoyed good relations with the Treasury, was well regarded by fellow central bankers abroad and was notably popular within the Bank itself. Margaret Thatcher’s choice of Leigh-Pemberton to succeed Gordon Richardson as Governor caused some astonishment. His City experience was brief, with nine years at the National Westminster Bank, six as chairman. And his intellectual credentials were modest beside those of better fancied candidates, including Sir Jeremy Morse of Lloyds and the Deputy Governor, Sir Kit McMahon. As Governor, Leigh-Pemberton repeatedly defended Britain’s membership of the Exchange Rate Mechanism (ERM), which lasted from October 1990 until ‘Black Wednesday’ in September 1992. He claimed (as did all loyal spokesmen for government policy at the time) that recovery from recession was not significantly hindered by the high interest rates needed to secure sterling’s position in the system. It was a view which hindsight held to be completely wrong, when lower interest rates and a competitive pound outside the ERM were recognised in 1993 as unequivocal contributors to recovery. On Black Wednesday itself, massive intervention by the Bank of England in the foreign exchanges proved totally ineffective, and some £1.5 billion was thought to have been lost as sterling was devalued by 15 per cent. The brunt of the blame for the debacle attached to the Chancellor of the Exchequer, Norman Lamont, while the Bank was seen as having little choice but to hold its line until the decision to suspend membership became inevitable. Despite the many ructions of his governorship, LeighPemberton was admired as a man of stature and unforced grandeur of style. He could be hesitant when cross-examined and was particularly uncomfortable when dealing with abstract economic concepts, but he was practical, resilient and sustained by an inner confidence, which communicated itself to those around him. It was a tribute to his authority that two of the Chancellors who worked most closely with him (Lawson and Lamont) subsequently paid him the compliment of arguing for an independent Bank of England. Leigh-Pemberton was appointed to the Privy Council in 1987 and created a life peer on his retirement from the Bank in 1993. Robert (‘Robin’) Leigh-Pemberton was born on 5 January 1927. His father, RD Leigh-Pemberton, MC, farmed Torrey Hill, a 2,500 acre estate near Sittingbourne in Kent. The family had been landowners in the area since the 19th Century.

Robin was educated at Eton, where he showed promise in mathematics and Classics, and won a scholarship to read Greats at Trinity College, Oxford. After service with the Grenadier Guards from 1945 to 1948, Leigh-Pemberton embarked on legal studies. He was called to the Bar of the Inner Temple in 1954 and practised in London and on the South-Eastern circuit until 1960, when he took over the management of the family estate. Leigh-Pemberton seemed set for the congenial life of a country gentleman and local dignitary. He became a magistrate and a Kent county councillor in 1961, and was Conservative chairman of the council from 1972 to 1975. A talented cricketer, he was a committee member of Kent CCC. He was Pro-Chancellor of the University of Kent, Seneschal of Canterbury Cathedral, Honorary Colonel of the Kent and Sharpshooters Yeomanry Squadron and, from 1982 to 2002, Lord Lieutenant of the county. His business career, meanwhile, began late and on a much humbler scale, but it quickly accelerated. In 1966, at the instigation of his stepfather-in-law, the 7th Marquess of Exeter, he joined the board of Birmid Qualcast, a maker of lawnmowers, of which he was chairman from 1975 to 1977. He was also invited on to the local board of the National Westminster Bank, where his real potential was noticed. He became a non-executive director in 1972 and an executive deputy chairman in 1974. Three years later, he succeeded Sir John Prideaux as chairman of NatWest. Leigh-Pemberton’s tenure coincided with a period of sustained recovery and expansion after the traumas of the secondary banking crisis in 1974 –1975. By 1983, NatWest was ready to overtake its main rival, Barclays, as the leading British commercial bank. Leigh-Pemberton’s other directorships included the Equitable Life Assurance Society and Redland, the building materials company. He served on public committees inquiring into teachers’ and police pay, and local government rules of conduct. He was a member of the National Economic Development Council, a governor of the Ditchley Foundation and a trustee of both Glyndebourne and the Royal Academy. Firm-jawed and strongly built, Leigh-Pemberton bore a striking resemblance to the actor Kenneth More. He embodied similar qualities of understated Englishness and, despite the pressures of his later career, maintained a relaxed squirarchical style. As Lord Lieutenant of Kent, he flew the Union flag over a comfortable mansion (rebuilt in Queen Anne style in the 1950s), which overlooked its own cricket pitch and model railway. His recreation was simply ‘country life’. Robin Leigh-Pemberton married, in 1953, Rosemary, daughter of Lt-Col DWAD Forbes, MC, and stepdaughter of Lord Exeter, the former Olympic hurdler. She survives him with their four sons, including James Leigh-Pemberton, who is executive chairman of UKFI, the entity which holds the Government’s stakes in RBS and Lloyds. Another son predeceased him. Courtesy of The Daily Telegraph

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INNER TEMPLE

The Bar Liaison Committee

Chairman, Sara Lawson, outlines the work of the Bar Liaison Committee and the timetable for the forthcoming elections in November 2014.

very three years elections take place for members of the Inner Temple Bar Liaison Committee (BLC), whose purpose it is to pass on the views of members of Hall to the governing body of Benchers and vice versa. On behalf of members of Hall, we consider plans and workings of the Inn, respond to consultation papers affecting the Bar and play a major part in the administration and formulation of policies of the Inn. Most recently, we have responded to the Ministry of Justice’s consultations on the Reform of Legal Aid, the Bar Standards Board’s consultations on Changes to the Guidelines on Returning Instructions and Entity Regulation Rule Changes and Insurance. As I step down after nearly two decades on the committee I can say that it has been a fascinating experience. I have met many Benchers who I would not normally have met (except in the Court of Appeal). I have led delegations to various select committees in Parliament and drafted, with others, many responses to Government and BSB consultations. This can be hard work but also enlightening and sometimes empowering. I have learned about the history of the Inn and, as assistant to the Master of Silver, I have helped count the silver in the vault. Representatives from the BLC sit on all the Bench committees within the Inn to represent the views of the Bar, including the Executive Committee and Finance Committee. We help with scholarships and with advocacy training (an essential and expanding function of the Inn), with marshalling and with the Students’ Societies. Important links with the circuits are also maintained by representatives on the committee. We also assist the Master of the House, the Master of the Cellar, the Master of Silver and the Master of the Car Park. We have recently set up with the other Inns an

Inter-Inn Amity Group with the chairmen and vice chairmen of each committee so that we can learn from each other and enjoy drinks, whilst exchanging information and support. The main committee meets ten times a year. Attendance can be in person or by telephone. Our next elections are this autumn. Once new members of the BLC have been elected, various other members can be co-opted, depending on need, and a chairman and vice chairman are elected by the committee. Sara Lawson Chairman Inner Temple Bar Liaison Committee

The timetable for the election is: Action

Deadline

Online Nominations start

Monday 27 October 2014

Nomination forms to be completed

By 5pm on Monday 17 November 2014

Online Voting Commences

Monday 24 November 2014

Online Voting Ceases

By 5pm on Wednesday 3 December 2014

We hope that many members of Hall will be tempted to stand for election.

THE BAR LIAISON COMMITTEE INNER TEMPLE YEARBOOK 2014–2015

The current members and their roles are: Elected

Committee/Activity

Aidan Briggs Nicholas Griffin QC Simon Murray Clifford Payton Faisel Sadiq

Library Committee Education & Training Committee; Mentoring House; Moots Estates Committee; Silver Scholarships Committee

Co-opted

Committee/Activity

Rehana Azib Simon Baker

Scholarships Committee Executive Committee; (Vice-Chairman) Students Debating Society Christopher Bond Qualifying Sessions Sub-Committee Zachary Bredemear Education & Training Committee; Cellar Saoirse Cowley Employed Bar Anneliese Day QC LSB (Board Member); Pegasus Scholarship Trust Jocelin Gale Qualifying Sessions Sub-Committee; Magna Carta Open Weekend Sub-Committee Charlotte Hadfield Remuneration; thankQ Steering Group Paul Infield Marshalling; Education & Training Committee Alice Jarratt Student Societies Sara Lawson Executive Committee; (Chairman) Car Park Sarah Martin Temple Women’s Forum Steering Group Tom Mitcheson QC Advocacy Training Committee Timothy Penny Library Committee; Outreach Sub-Committee

Co-opted

Committee/Activity

Timothy Petts Hefin Rees QC Saira Kabir Sheikh QC Turlough Stone Jason Sugarman Andrew Warnock QC

Archives Committee; Qualifying Sessions Sub-Committee Scholarships Committee; Inner Temple Rep on Bar Council; Executive Committee Scholarships Committee Library Committee Car park and Garden Advocacy Training Committee; Magna Carta Steering Group

Circuit Representatives Keiron Beal QC Alex Foster Richard Wheeler Jason Hadden Vacant Simon Gurney David Elias

European Circuit; Student Societies North Eastern Circuit Western Circuit Midland Circuit South Eastern Circuit Northern Circuit Wales and Chester

Ex-Officio Members Natalie Foster Sonia Nolten Junior Bar Auditor Minka Braun Maﬆer of the Temple Sub-Treasurer

President of the Junior Bar Executive Committee Finance Sub-Committee Yearbook Editor

Secretary Henrietta Amodio

Head of Treasury Office

If you have any issue which you wish to be raised please contact the relevant committee member via the Treasury Office.

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INNER TEMPLE

Total Madness

Speaking to members of the Tory Reform Group, the former Conservative MP, Maﬆer Lawrence, attacked what he called the “total madness” of the Government’s legal aid policy.

I “

never thought the day would come when I would be calling for strike action, but that day has indeed now sadly arrived” former Conservative MP and Home Affairs Select Committee Chairman Master Lawrence told the thousand lawyers gathered in a demonstration outside the Houses of Parliament on 7th March. Amongst the many other speakers was a recently retired Lord Justice of Appeal. Three months later, on 7th June, in a speech to the Tory Reform Group, Master Lawrence again attacked what he called the “total madness” of the government’s policy on legal aid. He said that it was “fatuous” to pretend that any good could come from the slashing of legal aid fees for the umpteenth time, so that few publicly-funded barristers could earn a living and fewer would be prepared to take the prosecution or defence of a criminal case. Furthermore, it was “utterly incredible” that the party that stood for the rule of law should be deliberately undermining that precious and historic concept to no financial purpose. The required cut of £220 million was a fraction of what the NHS cost per day, and more than that would be dissipated in court time, wasted by incompetent and half-trained solicitor advocates trying to do the work, and the massively increased costs and fees involved in setting up a working Criminal Defence Service. He asked why any young graduate leaving university, with a loan to repay of £40,000, would want to join the publicly-funded Criminal Bar, when barristers who had been at the Bar for 20 years were only earning £42, or perhaps £100 a day for 200 days a year – if they were lucky – before those sums were halved after payment of clerks fees, chambers rent, hotel and travel costs, insurance, pension contributions, computer equipment, books and four weeks statutory holiday.

He rejected the myth of fat-cattery. “If you are in court earning £100 every single sitting day, you cannot get beyond £22,200 before your expenses halve that amount. The truth is that fees have been slashed by 37% in the past 7 years, and that half the criminal Bar does not even earn a living!” As for experienced Queen’s Counsel, Master Lawrence asked where was the compulsion for anyone to take criminal cases when they were not paid at all for much of the work they were expected to do – such as long conferences in prison and hours spent reading evidence that the prosecution had to disclose to the defence because it might undermine their case. And what was the point of working to earn less than half the fee for murder trials and long fraud cases that they would have been earning 20 years ago for comparable cases? Master Lawrence said that when he had complained to the Prime Minister two years earlier that the latest proposed cut of 13.5% – since followed by further cuts – would savage the Criminal Bar, he was told that there was a “good supply” of suitably qualified barristers and solicitor advocates willing to work at the legal aid rates currently paid, that they would make up any shortfall if barristers moved away from criminal work, and that furthermore, the Crown Prosecution Service was reporting no current problems. “That was, of course, before the Government announced, last year, that it was cutting the number of legal aid solicitors from 1,800 to 550, so that many county rural towns and villages would be offering the public no access to justice through solicitor-advocates or any others.” It was also before judges all round the country started reporting the distress being caused to victims, and the expense of court time-wasting, caused by incompetent solicitor-advocates. Then the government had started paying silks employed by the Criminal Defence Service double what they were paying

Master Lawrence (above) at the Fight for Legal Aid demonstration 7 March 2014 Photo by Chris Beckett

self-employed criminal silks. “How are you making savings if you are having to double the cost of employed silks?” he asked. Master Lawrence said that the information being fed to the Prime Minister by his advisers was as much nonsense as their assessment last year that the average earnings for a full-time criminal barrister were £84,000 per annum. This had been rubbished by the head of the independent UK Statistics Authority, Sir Andrew Dilnot, who pointed out that you could only arrive at that figure by excluding the fee income of anyone earning less than £10,000, by including VAT payments that had to be repaid, by including expenses such as travel costs, and by muddling the “mean” with the “median” figure, which resulted in a higher estimate of fees because the calculation is influenced by a small number of large payments! Journalists sometimes asked why such a well-organised profession of skilful advocates was so bad in advocating its own cause and had allowed the relentless dragging-down of publicly funded barrister’s fees to take place. “The answer” said Master Lawrence, “was simple. We have never gone on strike.” This meant that although governments always lived in fear of strikes from tube drivers, teachers, local government and NHS workers, they had never had to worry about lawyers. And whenever busy government ministers had no cause for concern, they tended to leave more decision making to the civil service. The trouble with that was that the British civil service had for many years had an agenda to fuse the solicitor and barrister professions so that there would be one publicly funded employed lawyer, as existed in the rest of Europe. “Our great civil service must have thought it was Christmas time when they were given a free hand to reorganise the legal professions to their liking!” At long last, he reported to the meeting, those who understood and truly valued the independent, self-employed, legally aided barrister, not just because he had a place in history, but because he or she was a highly-trained specialist in advocacy, obliged by professional rules to take on cases they did not necessarily like doing and thereby keeping the system running smoothly and, in a highly competitive market, giving the public the right to chooses their trial lawyer, had stood and fought their ground. They had been driven to take strike action. This had been widespread and had reaped its reward.

TOTAL MADNESS INNER TEMPLE YEARBOOK 2014–2015

“ The fear that the criminal justice system might well be crippled by striking barristers, that there were simply not enough highly qualified solicitor-advocates available to take over the work, that the public would see criminals having to be released to walk the streets again for lack of court representation, and that the tabloids would go to town against them for their incompetence in the run up to a general election, has been too much for the Government. Belatedly, they have put a stop to their proposed cuts for this year.” But merely putting a hold on the projected cuts until after next year’s general election would not cure the illness, Master Lawrence warned. Too much damage had already been done, and any restoration of the drive towards a fused and badly paid profession would just revive the horror. Much more has to be done to make sure that this situation did not recur. The leaders of the profession needed to sit down with government and find a sensible way to permanently halt the harm being done. Master Lawrence said that the help of enthusiastic Conservatives of all ages in the Tory Reform Group, whether or not they were lawyers, would also be of considerable importance.

“ You must help to spearhead the activity against any government that seeks to cripple, whether by ignorance or malice, the finest criminal justice system in the world. And you, as Conservative activists must help to make sure that that we win back perhaps our proudest claim, that we are the party of law and order and of respect for the rule of law and the vital necessity of safeguarding the institutions that guarantee it.”

INNER TEMPLE

Dame Elizabeth Lane Fifty Years On: 1965–2015 Maﬆer Martin recounts the extraordinary history of Dame Elizabeth Lane, the country’s first female High Court Judge.

Dame Elizabeth Kathleen Lane, 1965 © National Portrait Gallery, London

DAME ELIZABETH LANE INNER TEMPLE YEARBOOK 2014–2015

t is a sobering thought that there will be those reading this who will not be familiar with the name or its significance. In brief, she was the first woman High Court Judge, having been the first woman County Court Judge, the first woman Bencher (apart from Queen Mary) and the first woman to argue an appeal in the House of Lords. She was not the first in everything. Following the Sex Disqualification (Removal) Act 1919 abolishing the prohibition on women becoming barristers, Ivy Williams of this Inn was the first woman to be called to the Bar in May 1922. She did not practice, but taught law at Oxford University. Ivy Williams was swiftly followed by Helena Normanton, who was called to the Bar by Middle Temple in November 1922 and followed this with great success in practice, becoming, with Rose Heilbron, the first women to be appointed King’s Counsel in 1949. But back to our heroine. Born in Edwardian times, she was not yet ten years old at the start of the First World War. She married Randall Lane in 1926, a marriage which was to be devotedly happy. Their only child, John, was born in 1928 but, to their devastation, died at the age of 14 as the ultimate consequence of an earlier infection with meningitis. Randall, at the age of 38, began his long-deferred wish to read for the Bar. In 1937, by then 32 years old, Elizabeth joined him at his insistence and they studied together. She was called by the Inn in 1940. A period of war work followed, until the Bencher who had sponsored her entry as a student and proposed her Call persuaded her that she Elizabeth Lane in 1945

“ She was wise, warm and exceptionally shrewd. Cigarettes and a gin and tonic were among her best bits of the day.” could be of better use to the war effort by starting practice and doing the ‘dirty work’, such as poor prisoners’ defences, service divorces, and other small and badly paid cases that were being neglected whilst most young barristers were away in the forces. On beginning her pupillage in chambers at 1KBW (to become 36 Bedford Row), Elizabeth was told that she would have to leave at the end of it, as the senior clerk and others would not want to have a woman member. They must have come to see what we later saw, for she remained in those chambers for the rest of her time at the Bar. Elizabeth practised on the (then) Midland Circuit, which, it is said, she was not allowed to join, nor any of the Bar Messes, in what was then the usual mixture of Assizes and Quarter Sessions crime, divorce and county court civil work. She did a lot of work for the Derbyshire branch of the National Union of Mineworkers. In 1953, her Bencher ‘guardian angel’ sprang into action again and persuaded a dubious Lord Chancellor to allow her to sit as assistant Recorder of Birmingham, a role that no woman had previously been appointed to. In 1960, she followed Helena Normanton and Rose Heilbron in taking silk. This was followed by becoming Chairman of the new Tribunals under the Mental Health Act 1959. In addition to sitting in Birmingham Quarter Sessions and chairing Mental Health Tribunals, she was appointed Commissioner of the Crown at Manchester. This title later became the rather more prosaic Deputy High Court Judge. In 1961,

she was appointed Recorder of Derby. Elizabeth was not the first woman recorder: this achievement belongs to Rose Heilbron as Recorder of Burnley in 1956. Pausing for a moment, one can possibly see in the above a careful testing of a hitherto preposterous idea that a woman could not merit a judicial appointment. Following her appointment to the County Court Bench in 1962, it is reasonable to suppose that her tenure was carefully scrutinised for, on the 30 September 1965, she was sworn in as the first woman High Court Judge. This presented the Benchers of the Inner Temple with a decision. High Court Judges are made Benchers of their Inn as a matter of course if they are not Benchers already. The story endures that the reason given for the absence of women Benchers was that there was no provision for a woman Bencher’s lavatory. Given the choice between ignoring or yielding to centuries of tradition, the Inn proceeded with building one and, in 1965, she was elected. To say that Elizabeth was the first woman Bencher of any Inn is true, save in the absolute strictest sense. Queen Mary was elected an Honorary Bencher of Lincoln’s Inn in 1943. In this regard, Lincoln’s managed to be both first and last when they elected their first practising female member, Mary McMurray QC, in 1986. Gray’s Inn was the second with Rose Heilbron QC in 1968, and Middle Temple third with Margaret Booth QC in 1979, on her appointment to the High Court Bench.

INNER TEMPLE

Portrait of Dame Elizabeth Lane by John Whitall

Elizabeth’s beloved Randall died in 1975. She found consolation in her work until she retired in 1978 to live in Winchester. For the next couple of years, she was invited to sit as an additional member of the Court of Appeal. Elizabeth Lane died in 1988. This, then, is who she was but, given that the course of her career was no different from most men at the time, what is her significance? It is hard now to recall attitudes towards women who entered the professions and other echelons of civil society. I have heard with my own ears such assertions as, “Women’s voices are too high and squeaky to be pleasant for a jury to listen to” and “How will a woman have the stamina to stand all day cross-examining” or (in answer to my question as to whether my colleague’s chambers had any women) “But we are a commercial set”. An anecdote of Elizabeth’s was that of a Treasurer at Call Night at Gray’s Inn, who said, “The only time when the male intellect descends to that of the female is when the male is drunk.” Of course, we had no track record to show whether we were trustworthy as to our temperament, intellect, or our reliability generally. The significance of Elizabeth to my mind is that she did everything so well, so reliably, so dependably, that the hostile or the merely nervous had nothing to complain of. This did not stop some ad feminem remarks, which rankle with me even now. Particular upset was felt by some of her brother judges when they were merely raised to the

rank of Knight Bachelor but she was made a Dame of the British Empire, there being no lower rank of Damehood. It was simply in bitterness that some thought it amusing to claim that one could not tell whether she was male or female when robed. Wearing lipstick and earrings was clearly not enough to help the confused and, as we all recall, those male HCJs were such macho hunks, weren’t they? Some complained that she was quite strict in court. Dear me. Compared to her male brethren? Really? What did they expect? “Ooh! Those papers must have taken you so long to prepare. I hope you weren’t working all night you poor thing.” I was her Marshall in 1969 where I spent six weeks in Liverpool, living in the Judges’ lodgings with her, Danny Brabin and Bill Mars-Jones. These were six of the most marvellous weeks of my life. She was wise, warm and exceptionally shrewd. Cigarettes and a gin and tonic were among her best bits of the day. That she and her female contemporaries conducted themselves professionally in such a magnificent way allowed doubts and prejudices to vanish like snowflakes in the sun and gave us women their shoulders to stand on. If you pause to reflect on Magna Carta next year on its 2015 anniversary, please spare a thought for another anniversary 50 years ago. Maﬆer Martin

CELEBRATE THE LIFE INNER TEMPLE

Maﬆer Graeme Wılliams by Olivia Williams To follow…

y father always began by thanking all his guests for coming – to weddings, christenings, Christmases and first nights – so first, I would like to thank all those who came to the Temple Church on 4 December to remember him and raise a glass or two of Inner Temple claret in his name. Next he would have mentioned those who travelled farthest to be there, from Oregon and Provence and Budapest, and then a short anecdote about each place, so that the guests might meet later and talk about their journeys. He was inclusive, welcoming, interested and interesting, and whatever was presented to my father he would find the pleasure in it: the fleck of colour in a Donegal tweed hat, a coal chute cover in a pavement, the clatter of horses’ hooves on wet cobbles, the poster for a circus that starts tonight. He was an oxymoron, an establishment Bohemian, a practising feminist immune to political correctness, who celebrated his wife’s eminent career, but after a concert at the Wigmore Hall would wonder out loud how “such an exquisite sound could be conjured up by a band of hairy Romanian lesbians”. He was an impatient man with infinite patience. He administered the law, but was infuriatingly subversive, as you quickly found if you ever told him NOT to do something. Some men collect cars or gadgets, but my father’s illicit pleasure was Persian rugs. He would loiter at the back of a Sotheby’s auction, tipping his hat to the auctioneer. I watched him bid for rugs alongside seasoned old dealers who treated him with a puzzled respect; one sidled up to ask, “So where is your shop? I want to buy your stock…” But his stock was not for sale, neither metaphorical nor Persian. He doggedly retained his beloved, overlapping, Persian rug trip hazard on our floor at home, in imitation of a mosque he once visited in the Lebanon; and his love of the British legal system, of 13 KBW and the Inns of Court was passionate to the end. I have heard men of his generation say they aren’t interested in children until they can walk and talk. My father loved little babies. He loved the way their fingers gripped his and the way their lips moved, and as we grew up he was equally ready to lace ballet shoes so tight our feet went blue, or pedal along a towpath roaring encouragement as my sister rowed for her college, all played out before the backdrop of his inspirational 55 year love affair with my mother. Many of his qualities would seem almost puzzling to the younger generation. He was a successful barrister with an almost comical aversion to ambition, keeping company with his family and friends rather than pursuing those who might have promoted him. He had an absence of greed, envy or competitiveness that made him a completely useless partner in a card game, but a lust for life that celebrated equally the view from the top of a

campanile or the crunch of a cardamom seed between his teeth. The arrogance, fawning and dissembling required to get a job in a world exemplified by The X Factor or The Apprentice were utterly mysterious to him. Being an exemplary father doesn’t get the recognition it deserves. I’d like to put that right here. He attended every play, corrected my grammar, showed me how to throw a cricket ball, change a tyre and conduct an orchestra, read me the Just So Stories, wrote me beautiful letters, befriended my friends and boyfriends, loved my husband, held my babies, held my hand and taught me how to love. He put up a most extraordinary fight in the last 14 years. Among many other ailments, he survived a heart attack, stroke, cancer, osteoporosis and depression. Yet he fought his way back to sufficient health and co-ordination to travel down the Grand Canyon on a mule; across parts of Thailand on an elephant; and finally, and most alarmingly, around Camden Town on a mobility scooter. But in the interest of balance, I have to tell you that he would be enraged, and “each particular hair would stand on end like quills upon the fretful porpentine (sic)”, if his favourite line was cut from old Hamlet’s speech – or if the STOP in Scott Joplin’s Stoptime Rag wasn’t completely silent. Almost every condolence letter mentioned what a gentle man and a gentleman my dad was, but if a motorist crossed his path as he cycled down Red Lion Street to the Temple, he would catch up at a red light, flick back a windscreen wiper and cycle away waving two fingers behind him. He loved to come home and eat in the garden whatever the weather, and drink wine, and laugh and laugh. But if a cat should foolishly attempt to cross the lawn to harass the frogs in the pond, he would leap up from the table, reach for his pump-action water pistol and chase it off the property, bellowing like a warrior. As each of these myriad pleasures was denied him by his myriad illnesses, he still laughed – no more claret after the cancer, no more Persian rugs after the hip replacement, but when the gastroenterologist said, “No more peas with his shepherd’s pie…” “No peas?” he lamented. “No peas for the wicked…” That laugh! You could hear it ring out in an audience of thousands. There were three generations that day at the Temple Church whose lives are richer for having known my father. There were more than a few who feel he was a surrogate father; and there is a family that owes its pleasures, its present grief and its very existence to this beloved man. Let us hope that wherever he is now, he has found peas. Olivia Williams

INNER TEMPLE

Extracts taken from The Short Book of Bad Judges

The late Maﬆer Graeme Williams considers what qualities make a truly bad judge, before examining the career of Inner Temple member and very bad judge, Gordon Hewart.

Introduction

o doubt I ought, at this early stage, to attempt some sort of at least provisional definition of a bad judge; and to ask the twin questions which need to be asked, and if possible answered, before we examine particular instances. What makes a bad judge? Or what makes a judge bad? It is presumably the case that some judges are born bad, and some achieve badness; but have any had badness thrust upon them? We shall see. What can be said at once is that being a bad lawyer is neither necessary nor sufficient. A bad judge may be a good or bad lawyer. He (laudably, seldom she) usually forgets that the most important person in court is, certainly not him or her, or even, as some contend, the court usher, but the losing litigant. Luckily for me, many of these questions were elegantly answered in the 17th Century by that versatile man, Lord (Francis) Bacon (1561-1626). He found time to write (when not also writing plays under the nom-de-plume of ‘William Shakespeare’) a very successful and influential book, The Essayes or Counsels, Civill and Morall; Of Judicature, from whose 3rd edition of 1625 I will quote: “Patience and gravity of hearing is an essential part of justice: and an over-speaking judge is no well-tuned cymbal. It is no grace to a judge first to find that which he might have heard in due time from the bar, or to show quickness of conceit in cutting off evidence or counsel too short; or to prevent information by questions, though pertinent. The parts of a judge in hearing are four: to direct the evidence, to moderate length, repetition, or impertinency of speech; to recapitulate, select and collate the material points or that which hath been said; and to give the rule or sentence. Whatsoever is above these is too much; and proceedeth either of glory and willingness to speak, or of impatience to hear or of shortness of memory, or of want of a staid and equal attention...but...let not the judge meet the cause half way, nor give occasion for the party to say his counsel or his proofs were not heard.” I very respectfully agree that, not far short of 500 years later, impatience is still the most common fault in the judicial character, though its consequence is usually to lengthen, not to shorten, the hearing. Even with experienced advocates in front of him, it can be perilously easy for a less than patient judge to suppose that he knows better than both, or all, of the lawyers before him, what the case is about, and what the

solution is. This trap has very recently become much more dangerous, as an easily foreseeable result of the now severely reduced availability of Legal Aid to individual litigants. This is having the obvious consequent increase in unrepresented litigants appearing in court ‘in person’ (even in the highest courts) towards whom almost limitless patient judicial indulgence must be shown, whilst not giving to the other party, whether or not represented by a competent lawyer, an impression of excessive judicial sympathy for the lay litigant. This is not always an easy balance to strike, as I discovered for myself when sitting to hear civil and family cases in the Crown Court and county courts. Supposed omniscience and all-too-real pomposity are two other defects that can tarnish the judicial performance. The first of these can be the result of over-long exposure to the same kind of, or even to the very same, litigants, or advocates. The second is more likely to affect a recently appointed judge, who may find the sometimes excessive sycophancy of the lawyers, and even his own new robes, too much to his liking. It is fair to say that, much as one swallow does not make a summer, nor one redwing (an avian winter visitor) a winter, one badly conducted case does not make a judge bad. Human nature, or even a row with one’s spouse the night before, may ‘excuse’ an isolated fall from judicial grace, and fall short of earning a judge the badge of badness: we all have our off days. But several or repeated, or even habitual instances of bad judicial behaviour must be more serious. Even so, one really bad case can exemplify a bad judicial temperament. Another related judicial failing, which has given rise to many successful appeals and quashed criminal convictions, is excessive intervention, especially in the questioning of witnesses. The classic statement of principle, often referred to in other cases, was made in the strong case of Yuill v. Yuill by that famously good judge, Lord Greene M R: “A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously, he deprives himself of the advantage of calm and dispassionate observation”. The metaphor of ‘descent into the arena’ is very apt and has very often been adopted by other judges. In that case, the Court of Appeal took the very unusual decision to reverse the trial judge’s conclusion on the reliability of the evidence of

witnesses whom the judge (Mr Justice Wallington) had heard and seen, but whom, the Court of Appeal held, the judge had taken an excessive part in questioning. There are, I think, at least three easily distinguished kinds of badness in judges; there may be others. First, happily very rare, is the conviction of a judge of a serious criminal offence. In the 1980s, Judge Bruce Campbell, a former Family Law practitioner and by then a circuit judge, pleaded guilty to attempting illicitly to import a substantial quantity of whisky and cigarettes. He was peremptorily dismissed, having unsuccessfully tried to resign, by Lord Chancellor Hailsham. A far more senior and respected judge, Lord Justice (Charles) Russell, was luckier. He had pleaded guilty to driving home from his train station in rural Surrey, being appreciably over the, then recently introduced, permissible alcohol limit. He had ignored the station staff’s advice not to drive. A few days after the local court hearing, at which he was of course disqualified from driving, he is reputed to have asked the President of the three-man Court of Appeal in which he was to sit, Lord Justice (Arthian) Davies (always known as ‘Beetle’ because of his use of numerous pairs of spectacles), “What should I do, Beetle?” To which question Beetle is said to have given the terse answer, “Sit tight, Charles”. Sir Charles sat tight, and survived. Indeed, he was a few years later even granted a life peerage and promoted to sit in the House of Lords. I doubt if that would have happened under Hailsham’s successor, the much-admired, Lord Mackay of Clashfern. Indeed, I think he made an overt policy statement that a judge, of whatever rank from lay magistrate upwards, who failed the breathalyser test, or committed anything other than a very minor traffic offence, was expected to resign or be dismissed. In my respectful view, an entirely proper policy. The second and by far the most common form of badness is the misconduct of cases in court. This may arise from dislike of one or more of the advocates before him, or from dislike of the way the case is being conducted, or from our old friend (and judge’s enemy), impatience, or from sheer boredom with the often tedious and repetitive job of judging. We shall see quite a few of these hereafter. The third, last, and rarest form of badness arises from the misconduct in one of the administrative and judicial functions, many involving subordinate judicial appointments, which some particularly senior judges are called upon to exercise. Lord Chancellor Westbury is our only occupant of this rather exclusive bell jar. No doubt there are, or will be, other categories. But I think we have enough by now to be going on with. Some readers may be disappointed to find their own ‘favourite’ bad judge omitted from these pages: I have deliberately called the

BAD JUDGES INNER TEMPLE YEARBOOK 2014–2015

book ‘Short’. I make no claim to have included all possible candidates; a mere list of names, or of more discreet initials, would not be very interesting. So I have confined myself to ten judges, whose badness has been authenticated, and has had interesting or even amusing consequences. The reactions of those of my barrister, or ex-barrister, friends to whom I have mentioned my plan to write this book, have fallen into two groups. A few have expressed surprise that I could find enough bad judges to make a worthwhile, even explicitly ‘short’, book. Others, the majority, have said, “The Short Book of Bad Judges is bound to be inadequate, there being so many to include”. To both schools of thought I reply that, granted the constraints already referred to, I have included only those against whom there exists clear evidence, in the Law Reports or elsewhere, of one form of badness or another. Mere grumbles, however numerous and strongly held or expressed, I have not regarded as sufficient. I repeat: I do not claim to have included ALL the possible rogues in the gallery. I was much encouraged by the reaction of a very senior retired (good) judge, when I mentioned my proposal to him: “That” he said “is a book we need”. I can only hope I have gone some way to fill the need. A quite recent problem, reported in The Times of 28 June 2012, raised the interesting questions of what should be the attitude of, and what steps (if any) should be taken by, an appellate court which has to consider a ground of appeal making serious allegations against the conduct of the trial judge, such that the appellant did not have a fair trial. In the case there discussed, allegations of misconduct of a trial and of prejudicial remarks made, and questions asked, by the trial judge, a barrister of very high professional reputation, decorated in recognition of his services (and elected to the Inner Temple Bench on the same day as I was), were made, and were accepted by the appellate court; so the conviction was quashed. However it soon appeared that the appeal court’s version, and hence their opinion, of the trial judge’s conduct was vigorously challenged, as being unrecognisable, by other counsel in the trial, who had not been involved in the appeal, and indeed by the judge. The serious questions arose: what rights, if any, has a trial judge to be heard in relation to crucial allegations (which he may well, and in that case did, dispute) against a judge’s professional conduct made by a dissatisfied litigant, including a defendant in a criminal case? And what steps can or should an appellate court take to resolve any such dispute? The most unsatisfactory answer seems to be ‘none’. Possibly the solution may lie with counsel for the prosecution, but alas even he cannot always be relied on to put the record straight, and in some cases may have decided not to support the conviction.

INNER TEMPLE

The Rt Hon Lord Hewart of Bury, by Oswald Birley, 1935

A Very Bad 20th Century Lord Chief Justice

ordon Hewart must be included in this book, if only because he was roundly described by Professor Heuston as “perhaps the worst Lord Chief Justice since the seventeenth century”. That he was also a bad judge is a very widely held opinion, probably the only dissentient being his hagiographical biographer, R Jackson in The Chief of 1959. He was born in Lancashire in 1870, educated at Manchester Grammar School and University College, Oxford, where he got a scholarship. He was called to the Bar by Inner Temple in 1902, joined the Northern Circuit, and took silk only 10 years later. He was Treasurer of his Inn in 1938. He had entered politics, being elected MP for Leicester East in 1913. He became Solicitor General in 1916 and Attorney General in 1919. He was an active Freemason and a member of several Lodges. He had no judicial experience at all. At that time there was a peculiar, and thoroughly undesirable convention, that when the office of Lord Chief Justice became vacant, the Attorney General at the time, whoever he happened to be, was ‘entitled’ to fill the vacancy. This obviously made the post of Chief Justice a matter of chance, much like musical chairs, and could give the job a wholly inappropriate political slant. Moreover, the Attorney General would be unlikely to have the judicial experience, nowadays regarded as essential, for such an important job. But these considerations were obviously not regarded as important in the early 20th Century. When the Lord Chief

Justice Lord Reading (the former Rufus Isaacs QC) left the office to become British Ambassador to the USA, Hewart expected, and thought he had the right, to succeed him. However the Prime Minister of the day, Lloyd George, did not wish to lose Hewart’s services as Attorney General, and so an extraordinary, and in Lord Birkenhead’s reported opinion, illegal device was employed to enable Hewart to fulfil his ambition, but not yet. Another judge, A T Lawrence, a 77-year old puisne of no great distinction, was approached with a view to his being appointed Lord Chief Justice, on condition that he provided a signed, but undated, letter of resignation. Thus it was possible for him to be sacked whenever his superiors wanted. Remarkably, he agreed to this humiliating proposal, and took the title of Lord Trevethin. It is said that he later read of his own resignation in The Times newspaper in March 1922, after only just over 12 months in office, when the government led by Lloyd George, by which Hewart had been appointed, lost a general election. On the 24th of that month Hewart became Lord Chief Justice, with no judicial experience whatsoever, an appointment inconceivable today. The almost unanimous opinion of the Bar, the legal historians, and indeed his fellow judges and peers was that Hewart’s was a disastrous appointment. In Mr C P Harvey’s opinion, “He lacked only the one quality which should distinguish a judge: that of being judicial. He remained the perpetual advocate.” He would form a view of a case at a

very early stage, and would be apparently incapable of changing his mind thereafter. Mr Robert Stephens, in the entry in Volume 26 of the Oxford Dictionary of National Biography, wrote, “He was boorish and rude to counsel (and) to his fellow judge and had an infelicitous lack of judgment.” He quarrelled with Lord Sankey, the Lord Chancellor in the House of Lords, and with Sankey’s Permanent Secretary, Sir Claud Schuster, over some supposed slight, relating to the alleged curtailment of his (Hewart’s) authority. In addition to his other defects, he seems to have suffered from a tendency to paranoia, being preoccupied, even obsessed, with the notion that there was a conspiracy of civil servants in the office of the Lord Chancellor, and elsewhere, to deprive him of his rightful powers and jurisdiction. This found expression in his book, published in 1929 entitled The New Despotism, in which he complained inter alia of the failure of the Civil Service to allow the appointment of additional King’s Bench judges. His personal attack, during a debate in the House of Lords, upon Claud Schuster was a clear and shocking breach of convention, whereby a civil servant must not be personally criticised, because he is forbidden to reply in self-defence. Hewart was himself severely rebuked for this by Lord Hailsham, a former Lord Chancellor. His total want of judicial experience, and of common courtesy, were amply demonstrated in the trial, over which he presided in 1929, of two libel actions brought by a Mr Hobbs against The Nottingham Journal and Tinling & Co. Ltd, proprietors of the Liverpool Evening Express. These actions were two of a large number of claims for damages for libel made by Hobbs, a disreputable litigant, after his release from prison for a serious offence of blackmail against an Indian potentate. Hobbs claimed that these two newspapers, and a number of others, had published false and defamatory matters about him, alleging several other serious offences, of which he had not been convicted. He was represented at the trial of the two libel actions by Serjeant Sullivan, an Irish barrister and the last holder of the obsolete senior rank of Serjeant to practise in England (but in full use in the days of Charles Dickens). Hewart obviously, and predictably, at once formed a strongly adverse view of Hobbs, which his counsel was incapable of dislodging. Hewart’s attitude communicated itself to the ‘special’ jury, with whom he was sitting. When the hearing of Hobbs’ case against Tinling & Co. (the first of the two to be tried) was half-way through, the jury sent first a ‘tentative intimation’, and then a second message, to the judge, saying that they did not need to hear any more evidence, but wished to find for the defendants. Hewart showed neither of these messages to counsel, his first (elementary) mistake. He then, for no good reason, declined to allow Serjeant Sullivan to address the jury, and entered judgment for the defendants: two more mistakes. Next, he rejected Sullivan’s application for an adjournment of the second action, made on the ground that Hobbs could not now have a fair second trial, in view of the adverse publicity about the first case: yet another mistake. At this, Sullivan

BAD JUDGES INNER TEMPLE YEARBOOK 2014–2015

took umbrage and left the court, whereupon Hewart dismissed the second case as well: a fifth and last mistake. Hobbs, no doubt on Sullivan’s advice, appealed to the Court of Appeal, a redoubtable trio consisting of Lord Justices Scrutton, Greer and Sankey. He sought, and obtained, orders for new trials on the grounds that Hewart had not given him fair hearings and had made a number of procedural mistakes. The Court of Appeal, in the course of three unusually long judgments made serious criticisms of Hewart’s conduct of the hearing. Lord Justice Scrutton, a famously and scrupulously correct commercial judge, said, “I regret to say I do not think (Hobbs) had ... a trial according to the rules of law.” Lord Justice Greer said percipiently, “The Lord Chief Justice was too greatly influenced by the unfavourable opinion he had formed of the plaintiff.” Lord Justice Sankey, a future Lord Chancellor, with whom Hewart was later to cross swords in the House of Lords said, “The case required careful and patient investigation, which it did not receive.” Considering that the Court of Appeal was dealing with, and upholding, an appeal based on the allegation that the Lord Chief Justice had not given fair trials to an aggrieved litigant, these are strong words indeed. Hewart retired in 1940, was surprisingly, and for no good reason, advanced to a Viscountcy in the same year, and died 3 years later, a thoroughly bad judge. Produced by kind permission of Anna Worrall QC, Bencher of Middle Temple and widow of Maﬆer Williams. The Short Book of Bad Judges is available to buy at the Inner Temple Treasury Office, Wildy & Sons and online.

INNER TEMPLE LECTURE SERIES

LIPS, LASPO and the State of Family Justice From a lecture by Joanna Miles, Fellow of Trinity College Cambridge and Academic Fellow of the Inner Temple

pril 2014 brought major change to the administration of family justice, most visibly in the creation of the Single Family Court. April 2013, however, marked more significant and controversial reform; the general removal of private family law cases from the scope of legal aid by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). In determining what matters should remain within the scope of legal aid, the Government considered, “the extent to which the individual’s personal choices have played a part in the issue arising and the extent to which they might be expected to resolve it themselves”, with disputes arising from such ‘choices’ less likely to concern “issues of the highest importance” which would merit funding. Can the exclusion of private family cases properly be so justified? The children whose interests are at stake, and whose welfare is the court’s paramount consideration, have not exercised any choice. But nor may the adults: we may have chosen to have a relationship, but I may not have chosen your decision to leave, or your refusal to fulfil your financial obligations, or your unreasonable refusal to let me see our child. And I cannot ‘take responsibility’ for my situation through mediation, as the Government would prefer, if you refuse to engage – constructively or at all – in that process. Given concerns about the wider impacts of family breakdown, such cases have a strong claim to be regarded as matters of ‘high importance’. Divorce cases were a major driver for legal aid’s introduction in 1949. The volume of such work now far exceeds what the scheme’s original architects could have foreseen. But the commonplace nature of family breakdown does not make its personal or social consequences any less serious or less deserving of legal assistance. The most mysterious LASPO reform was the removal of funding for general legal advice and assistance out of court. This neglects the facts, substantiated by professional experience and academic research, that the choice is not between mediation and litigation, but between out of court settlement and litigation, and that furthermore, settlement is commonly achieved through lawyers’ client expectation management and negotiation skills without proceedings being issued. Adjudication is rare. The pre-LASPO scheme recognised this by funding solicitors’ pre-proceedings activity, including settlement negotiation. Post-LASPO, there is no routine legal aid for family lawyers’ services, in or out of court, for child or financial arrangements. But there are various routes back in: funding for mediation and for cases involving domestic violence; and exceptional funding. First, legal aid remains available for mediation of family disputes, together with lawyers’ provision of advice to mediating parties and of drafting to formalise mediated settlements as consent orders (‘Help with Family Mediation’).

The Government expected mediation to increase. However, figures comparing November 2013 with November 2012 indicate a 43 per cent fall in the number of mediation starts. This slump can probably be explained by the lack of sustainable referral mechanism of clients to mediators, now that solicitors cannot act for legal aid clients in their own right but only on a referral from a mediator to provide Help with Mediation: solicitors are not funded to provide initial advice and referral to a mediator. Moreover, Help with Family Mediation seems to have been rarely sought: while 665 mediation cases began in November 2013, there were only six claims for Help with Mediation that month, and 26 in total from April to November 2013. This is worrying, as proper legal support of mediation is essential. Mediators cannot give legal advice to clients, and so large numbers may be mediating in the dark, who are at best sketchy about the law applicable to their case. The second key route back into legal aid is the funding of full legal services for all types of private family law matters affecting victims of domestic violence perpetrated by another party to the case. The range of evidence whereby this must be established, set out in secondary legislation, has recently been widened. One method is to obtain a non-molestation order under the Family Law Act 1996, which may explain the increase in such applications post-LASPO. But take-up of legal aid under this heading could be improved: Rights of Women and Women’s Aid research suggests that around half of all female survivors of domestic violence have been unable to access legal aid for want of the necessary evidence. The last key route back into legal aid is exceptional funding, provided to safeguard applicants’ rights under Article 6. The Government anticipated between 5,000 to 7,000 applications for exceptional funding in the Act’s first year, forecasting that 5 per cent of non-violent family law cases previously eligible for legal aid would receive exceptional funding. Yet in the first year, there were only 1,519 applications for exceptional funding in all areas of law (821 family cases), very far short of the projected applications. Only 57 grants of exceptional funding have been made, the vast majority in connection with inquests, to which separate criteria apply, and only eight in family law. There are several possible explanations for these low figures. The Public Law Project has identified in evidence to the parliamentary Joint Human Rights Committee several problems which are likely to be depressing application numbers. First, applications are made at risk: legal advisors receive no funding for preparing the multi-page application, which may take a day to complete. The risks entailed may be more than most firms can tolerate. Second, there is no procedure for urgent cases. The Agency has been exceeding its target of processing applications within 20 working days

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from receipt, currently taking just under seven days (perhaps unsurprising given the unexpectedly light caseload). But applicants with urgent cases would benefit from their case going through a dedicated fast-track procedure. Third, there are no short-cuts for children or those who lack capacity, who ought by definition to be eligible for exceptional funding: they cannot represent themselves, and need help to apply for funding. Such applications must be subjected to merits and means testing. But the process should be abbreviated for those self-evidently incapable of representing themselves. These practical difficulties aside, the very low number of grants may be attributable to the Government’s interpretation of Article 6 (fully discussed by the author in the September and November 2011 issues of Family Law). The Lord Chancellor’s guidance for exceptional funding of non-inquest cases sets out several relevant factors drawn from Strasbourg jurisprudence. However it states that the overarching question is whether the withholding of legal aid would make the assertion of the claim “practically impossible” or lead to an “obvious unfairness” in the proceedings. This language was adopted by the Legal

represented at the point of application; but in December 2013, that was so in only 4 per cent of cases, while cases in which neither party was represented at application had leapt from 19 to 42 per cent. The post-LASPO constituency of LIPs may be more vulnerable than many pre-LASPO LIPs. They are more likely, given their previous eligibility for legal aid, to be young, of low income and education, and for whom English is not their first language. As such, they may have particular support needs and may pose fresh challenges. Ambitions for robust case management in the Single Family Court may be undermined by LIPs who cannot engage effectively with the process, as illustrated by cases such as Tufail v Riaz. Court processes and paperwork, and the judicial role, can to some extent be adapted in order better to accommodate the needs of LIPs. But such measures themselves have costs implications and can only partially mitigate the difficulties involved. Without early access to tailored legal advice to assess the merits of their case, LIPs may bring or defend cases that ought never to have troubled the courts, or which ought to have taken less time to settle. Of course, many families do not engage with any part of

“ The commonplace nature of family breakdown does not make its personal or social consequences any less serious or less deserving of legal assistance.” Services Commission’s pre-LASPO exceptional funding scheme, following R (ota Jarrett) v Legal Services Commission. Its origins, though, are undistinguished, coming from a purported summary of the leading case, Airey v Ireland, in a cursory admissibility decision, A or X v the United Kingdom. And the commendably pithy language of “practical impossibility” and “obvious unfairness” finds, at most, limited textual basis in Airey and later Strasbourg decisions. While it is clear that Article 6 confers no absolute right to legal aid and that, “much must depend on the particular circumstances”, the Airey judgment does not use “exceptional” or its synonyms ‘special’ or ‘unusual’, or ‘practically impossible’ or similar. Instead, Airey held that the provision of legal aid to those unable to afford private legal representation was required where the applicant would be unable to represent herself ‘properly and satisfactorily’ thereby depriving her of ‘practical and effective’ enjoyment of her right of access to court. Whether that is so requires a holistic appraisal of various factors in each case, including the importance of what is at stake, the complexity of the relevant law and procedure, and (in light of that) the applicant’s capacity to represent him or herself effectively. The Court also noted that the emotional involvement of many parties to family disputes is “scarcely compatible with the degree of objectivity required by advocacy in court”. This is altogether broader language than that used in A v UK. Many parties in the family court could be said to be unable properly and satisfactorily to represent themselves, having mental health, substance abuse and other problems associated with chaotic lifestyles likely to impair their ability to engage constructively with what is very often an emotionally stressful process. Yet that is not the test that is currently being applied under Section 10. Without exceptional funding, more parties may try to act in person. Litigants in person (LIPs) are not new in private family law cases, but a rise in numbers was widely forecast post-LASPO. Children and Family Court Advisory Support Service (CAFCASS) data provides an early measure: preLASPO, in 20 per cent of children cases both parties were

the family justice system. But given the big drop in mediation numbers, the removal of legal aid and largely stabilised numbers of court applications in children cases, it would seem that a gap has opened up. Where have those other cases gone? Private ordering of family problems, particularly in relation to arrangements for children, is generally desirable. If parents can communicate and cooperate, they should make such arrangements as suit them and their children. But that will not always be possible. And in financial cases, private ordering unsupported by careful legal advice may lead parties unwittingly to lose important entitlements (e.g. in relation to pension sharing) that could otherwise have been protected. As Lord Neuberger has stated extra-judicially, the primary duty of any civilised government – ranking ahead of education, health and welfare provision – is to ensure the defence of the realm from foreign threats and the rule of law at home. Securing the rule of law, he said, requires a high quality and independent judiciary; an accessible and effective court system; and an accessible, high quality, independent legal profession. It is unclear whether the Government regards the legal system, broadly understood, as a vital public service. Lord Neuberger has also observed that while mediation has its part to play, it is ‘complementary’ to justice, not a substitute for it. Yet the Government’s promotion of mediation, without funding lawyers’ out of court services, risks it being pursued for its own sake. We must guard against placing such emphasis on the process of mediation that we neglect the substantive justice of the settlements reached. We live in a society governed by law, including those laws which govern family relationships. We must do all that we can to equip our new Single Family Court to deal with the challenges of the post-LASPO world, and to maintain a profession of family lawyers able to assist those vulnerable clients who need their services. Joanna Miles 17 March 2014

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Samuel Broome “The Floral Oracle of the Working Classes” Maﬆer Simon Brown, past Maﬆer of the Garden, describes the work of the 19th Century gardener who made the Inner Temple Garden accessible to all.

hilst London was being developed into the world’s largest city and the capital of the British Empire, the Great Garden of the Inner Temple became the ‘central park’ and showground of the City of London. The man responsible for that was Samuel Broome FRHS (1806–1870), who was the Head Gardener for 38 years from 1842 until his death. Broome was a countryman who came to the London as the Industrial Revolution was taking hold. He had undertaken an apprenticeship at the seat of the Earl of Bradford at Weston in Staffordshire, landscaped by Lancelot ‘Capability’ Brown. The city he arrived at would have been akin to that of the cities of China today: teems of poor workers and their families living in cramped conditions in the outskirts of the city, blighted by smog, as described by Dickens in his graphic novels. Unlike the country he had come from, the conditions were unsuitable for horticulture, and those at the Temple worse than elsewhere. At the same time, floriculture began to develop in those pre-football days as the competitive sport amongst the working classes, with the introduction in 1845 by Robert Fortune of the revered semi-double reddish brown small ‘Chusan Daisy’ from an island off the east cost of China, where chrysanthemums had been a legendary plant ever since the 15th Century BC. From this was bred the ‘Pompom’, so named after the tufts on the top of the hats of French soldiers. In 1846, these arrived in England via Paris at the Versailles Nursery in Hammersmith of John Salter, the English ‘Father of the Chrysanthemum’, and that of Samuel Brookes, whose nursery was in Stoke Newington. These plants created a sensation. A group of growers and enthusiasts formed the Stoke Newington Florists Society for the Cultivation and Exhibition of the Chrysanthemum, and the first competitive show was held in the upstairs room of the Rochester Castle public house with a dinner to follow. Shirley Hibberd, a leading member of the burgeoning gardening press, observed: “Chrysanthemum growing became a metropolitan garden fashion – perhaps a mania, and a very good one, for it appears that from the date of the dethronement of Louis Philippe in 1848 and the first multiplication of

chrysanthemum societies, November suicides began to decrease in number, so that now every well-intentioned city, town and village has its annual show, the month of November is found to be less characterized by suicides than any month in all the year.” Broome, immersed in this febrile atmosphere, discovered that the chrysanthemum thrived in the Inner Temple Garden despite the pollution from the gasworks next door at Bridewell and from the factories on the Surrey bank of the river. In 1854, he persuaded the Benchers to open the gates of the Inner Temple to the public in the summer and late autumn. In 1862, the guide, London: What to See and How to See It reported: “The garden is laid out and kept in good order. It is of considerable extent, chiefly covered by greensward surrounded on three sides with beds of flowers and has a graveled walk or terrace on the bank of the river commanding fine views of Westminster, Blackfriars Bridges and Somerset house. The garden forms a delightful promenade during the summer evenings, which is open to the public from six till dusk commencing the first week in June. During the months of October and November these gardens are radiant with a gay profusion of chrysanthemums by the gardener Mr. Broome, who has rendered the Temple Gardens as one of the most attractive shows of the Seasons and the gardens are then freely open to the public.” These shows continued until the end of the century when his successor, John Newton FRSA (awarded in 1888 after the first RHS Temple Show), was dismissed in 1895 and not replaced. Joseph Dale FRHS, the Head Gardener of the Middle Temple next door, also bred and exhibited chrysanthemums. In his Floral World and Garden Guides during the 1860s, Shirley Hibberd annually commented very favourably upon the free displays to the public by both of them. Comparisons were inevitably made between the respective displays of Broome and Dale taking into account the “more sheltered position” from the frosts and high winds that favoured the smaller more manageable Middle Temple garden. This friendly competition led to ever greater excellence, the breeding of new varieties by the protagonists and collaboration

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“ Broome was no mere specialist; he was also quite simply the best allround gardener of his era, perhaps any.” in co-authoring the eighth edition in 1867 of a book on their culture that Broome had first written in 1858. The Culture of the Chrysanthemum As Practised in the Temple Gardens With List of Plants, Including All the Latest Varieties was published by W Walker & Co, 196, Strand (booksellers to the Honourable Societies of the Temple). It reached its 18th edition by 1893 under John Newton’s editorship. It is still regarded as a classic reference work on the subject and on practical gardening. Broome’s reputation spread from the precincts of the Temple and earned him a place as honoured guest at the first annual dinner of the Tower Hamlets Chrysanthemum Society held on 5 December 1859, at Eagle Tavern in the Mile End. The Chairman, George Glenny, declared that, “floriculture had never made such progress among the people as within the last 18 months”. He quoted Samuel Broome as, “the floral oracle of the working classes” and as saying, “The chrysanthemum was the only flower the working classes could successfully cultivate without an expense beyond his means.” In 1861, Broome wrote to the editor of the Penny Illustrated Paper: “The working classes are getting passionately fond of flowers and those among them who enjoy the advantage of a sunny spot of ground out of town cultivate them in their leisure hours on summer evenings as an amusement. They form themselves into little societies. They exhibit their productions in friendly rivalry with one another and those who are successful go away highly delighted with their prizes.” The rivalry was anything but friendly. In 1864, two rival societies held their shows at almost the same time: Tower Hamlets Society at Eagle Tavern and the East Tower Hamlets Society in the Edinboro Castle in Stepney. The respective

chairmen Glenny, a ‘horticultual hornet’ of a journalist, and his counterpart William Eickhoff, traded vicious insults in the local press. Broome was no mere specialist; he was also quite simply the best all-round gardener of his era, perhaps any. The Gardeners’ Chronicle of 13 February 1858 thought so and described how he had been “rewarded by a complete triumph over all such difficulties as were not insuperable” in rescuing the “almost desolate” Inner Temple Gardens. He demonstrated this by exhibiting 24 trusses of roses at the Central Horticultural Society Show in 1864 in order to prove to doubters such as Thackeray and Dickens – both regular visitors to the Great Garden – that the “War of the Roses” could still thrive there if one had “Diligence, Patience and Perseverance”. The public perception of Broome and his garden was expressed by John Timbs: “The flower-beds next to the main walk he managed to secure four successive crops of flowers – the pompons were especially gaudy and beautiful; but his chief triumph was the chrysanthemums of the northern border. 200 families enjoy these gardens throughout the year, and about 10,000 of the outer world, chiefly children, who are always in search of the lost Eden, come here annually. The flowers and trees are rarely injured, thanks to the much-abused London public.” Broome’s reputation as the ‘floral oracle’ spread far and wide. The ‘Father of the Chrysanthemum’ in America was ‘Uncle’ John Thorpe, who established his famous nursery in New York in 1870. In 1883, he looked back upon his success and explained that it was due to Samuel Broome: as a boy growing up in London, he recalled climbing up on ‘Old Sam’ Broome’s knee during 1851 and being told all about chrysanthemums, how they were

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such a lovely and neglected flower and how they were destined to become popular. One day, he said, ‘Sam’ sent him 50 flowers and a copy of his book, which he would never part with, “not even for $1,000”. Upon that, he swore to make the chrysanthemum the most popular autumn flower in America – and he did just that. On 19 March 1860, the Sydney Morning Herald in Australia reported from the Illustrated London News of 14 January that “A silver cup has just been presented to Mr. Samuel Broome, gardener to the Honourable Society of the Inner Temple, by Mr. John Salter, nurseryman, of Hammersmith, as an acknowledgment of his great success in promoting horticulture among the working classes.” Just before his death, the last great embankment of the Thames took place to accommodate Bazalgette’s sewer and railway. In his book, he wrote that this, “would afford him the fine opportunity of laying down a comprehensive plan for a conservatory or winter garden in the Temple as well as an arena for drill and practice for our loyal volunteers upon the surplus ground to be gained from the rivers and banks. It will also be a happy means of restoring our patriotic Grass to its original verdure.” Sadly, he died before realizing his dream. The current landscaping was done by his successor and Robert Marnock, the pioneering landscape designer,

emulating what Baron Haussmann had done in Paris by planting the rows of smog tolerant plane trees on either side of the Broadwalk, overlooking the Thames. He was buried at Nunhead Cemetery. His friends erected an Aberdeen granite monument to his memory with his name, dates and a chrysanthemum engraved upon it. His obituary reads: “Samuel Broome, for forty years gardener to the Honourable Society of the Inner Temple, whose annual Chrysanthemum Show was one of the sights of London, and who, in their culture, gave such valuable testimony to the effects of Lord Palmerston’s Smoke Act, is dead, at a ripe old age. He lived respected, and he died happy.” Chrysanthemum mania reached its zenith in 1883 when the first local chrysanthemum society, the Stoke Newington Society, elevated itself to become the National Chrysanthemum Society. At the same time, in recognition of the great chrysanthemum shows of Broome and Dale, the new Royal Courts of Justice Restaurant, at 222, the Strand (now Lloyd’s Bank), was decorated with Royal Doulton tiles depicting some of the 500 varieties of chrysanthemums exhibited at the 1882 show, including a dusky pink one called ‘Inner Temple’. Maﬆer Simon Brown

“ During the months of October and November these gardens are radiant with a gay profusion of chrysanthemums by the gardener Mr Broome, who has rendered the Temple Gardens as one of the most attractive shows of the Seasons and the gardens are then freely open to the public.”

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“ Samuel Broome, for forty years gardener to the Honourable Society of the Inner Temple, whose annual Chrysanthemum Show was one of the sights of London, and who, in their culture, gave such valuable testimony to the effects of Lord Palmerston’s Smoke Act, is dead, at a ripe old age. He lived respected, and he died happy.” Punch paid its own fulsome poetic tribute to the great man: Poor old Broome, art thou gone! and shall we hear Thy annual Jubilate never more, O’er the Chrysanthemums that were so dear Unto thy honest heart, as, year by year, They decked the Temple Garden’s swarded floor! Like Henry Brougham, thy greater homonym, Thy pride and joy was to see cleared away The stagnant, stifling, smoke-clouds, that made dim The Temple of the law, and on Thames’ brim Alike for flowers and lawyers darkened day. And when the Smoke Act passed – and on Thames stream Steamers forbore to smoke, and on Thames’ shore Chimney-shafts ceased from sooty mouths to teem The blacks, that turned to griminess the gleam Of the Chrysanthemums thou didst adore – Never was simple man more glad than thou, Never were gentler pride and joy than thine – Pleased to see pleased crowds round thy Pompons bow, Children, maids, barristers of parchment brow, Who rarely noticed sun’s or blossom’s shine. Along Thames’ bank thy blooms stood brave and bold, The brighter for the brick and mortar round: And if thy flowers were flowers of gold, So innocent none grew from Temple mould, None so enriched, yet cumbered not, the ground. How oft, when autumn daylight in the west Was blended with the City’s lurid flare, Pale cheeks and aching brows thy flowers have blest, That breathed a breath of Nature and her rest, On brains o’erwearied with law’s cark and care. Farewell to thee, kind, honest, old Sam Broome, In boutons d’or above thee bloom the mould – No London smoke distress thee in the tomb, And whosoe’er i’ the Temple fills thy room, May the new Broom sweep clean as did the old.

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Is �airchild a Leading Case of the Common Law?

From a lecture by Per Laleng, a lecturer at Kent University and an academic fellow of the Inner Temple

IS FAIRCHILD A LEADING CASE OF THE COMMON LAW? INNER TEMPLE YEARBOOK 2014–2015

hen I was first invited to deliver a lecture in this series of lectures on leading cases of the common law, it seemed obvious to me that I should talk about Fairchild v Glenhaven Funeral Services Ltd, the 2002 case in which the House of Lords modified the test for causation in certain asbestos-related injury cases. Fairchild seems to have been central to most of my published work over the last few years. But just because something had been a lodestone in my research, that did not necessarily mean that it is in any way important in the grand scheme of things, let alone that it may be defined as a leading case of the common law. I thought I would

who pays any damages, and on what basis? Holtby v Brigham & Cowan had decided that divisible conditions should be compensated by apportionment on a timeexposed basis that could mean a claimant being left short in the event of insolvency. But what should happen in the case of indivisible diseases such as mesothelioma? In Fairchild, the House of Lords decided that a modified approach to proof of causation was justified in the circumstances: proof that each defendant’s wrongdoing had materially increased the risk of contracting the disease was sufficient to satisfy the causal requirements for liability. A claimant did not need to prove that the defendant’s

“ The doors are not completely shut on non-mesothelioma cases, and apportionment also remains open because the Compensation Act only applies to mesothelioma.” square up to the possible realisation that my research may be completely pointless by asking the question that has become my title: is Fairchild a leading case of the common law? It is worth making some general points regarding the historical context of the Fairchild litigation. The first is that although the first claim to reach the House of Lords for an asbestos-related disease was as long ago as 1972, only a few such cases reached the higher courts over the next 40 years. Asbestos-related appellate litigation was very much an undeveloped area of law prior to Fairchild. Secondly, the problem with asbestos-related diseases is their long-tail nature: it takes years for symptoms to manifest, especially those of mesothelioma. The latency period can be up to 50 years or more. Even though commercial importation of asbestos started in the 1880s, until 1960 only 31 asbestosrelated deaths were recorded within the asbestos industry. The first general Asbestos Regulations were not passed until 1969, while the importation of white asbestos was not banned until 1999, and its use was permitted until 2005. By 2002, asbestos-related diseases were taking on a new dimension. In 2001, The Economist reported that Lloyd’s alone had “lost” $8 billion to asbestos claims in the five years up to 1992. The estimated total cost of US asbestos-related litigation has been put at $120 billion, and, according to 2004 figures, the future cost of UK asbestos-related litigation up to 2040 has been put at somewhere between £5 billion and £11 billion. This context is relevant because of the long-tail nature of the diseases; there is a strong possibility that either a former employer or insurer has gone bust. If so,

breach was a probable cause of his disease; it was sufficient to prove that that breach was a possible cause, in the sense that the defendant’s actions had increased the chances that the claimant might contract the disease. Fairchild comes close to satisfying the definition of ‘leading case’ offered by Black’s Law Dictionary: “[Leading cases] have demanded more than usual attention from the judges, and from this circumstance are frequently looked upon as having settled or determined the law upon all points involved in such cases.” It has demanded more than usual attention from the judges. In headline terms, according to Justcite, Fairchild has received positive treatment six times, neutral treatment 70 times and negative treatment twice. Compare these statistics with another arguably leading case, Alcock v Chief Constable of South Yorkshire, which comes in at eight positive, 77 neutral and two negative treatments. It is clear that Fairchild has “demanded more than usual attention from judges”: the statistics are almost identical, though Alcock is ten years older. Fairchild does not satisfy the second part of Black’s definition, however, because it does not “settle all points involved in such cases”. In particular, it did not settle the apportionment question. To be fair, this was not raised in the case, but it is clearly highly relevant in mesothelioma cases involving more than one substantial exposure to asbestos dust. This is where Barker v Corus fits, and also why it is more accurate to talk of the Fairchild–Barker exception. Whereas in Fairchild it was admitted that the mesotheliomas were caused as a result of some defendant’s wrongdoing, in Barker the claimant had two sources of

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exposure: one by a negligent employer and the other during the course of his self-employment. The defendants argued that the Fairchild exception did not apply, as not all sources of exposure were as a result of wrongdoing by a defendant. In the alternative, they argued that if Fairchild had modified the law in relation to causation out of a sense of justice to innocent claimants, then the law of damages ought to be modified in fairness to defendants, particularly as otherwise solvent insurers and employers would pay the full bill as claimants could choose any employer to sue. The House of Lords rejected the first argument: Fairchild applied whether or not the other source was negligent, by reason of contributory negligence, or obiter, according to Lord Hoffmann, by environmental exposure. However, the House of Lords accepted the defendant’s alternative argument in relation to apportionment and held that defendants would be liable to the extent to which they had contributed to the risk of damage. Within three weeks, Parliament passed the Compensation Act 2006, which effectively overturned the apportionment ruling in Barker. Defendants would remain liable in full. Barker was not the end of the Fairchild saga. In Sienkiewicz v Grief, the Supreme Court was again asked to distinguish Fairchild in a mesothelioma case. The deceased had been exposed to asbestos in very small quantities at work but had also suffered normal environmental exposure to asbestos fibres, as we all are, every day. The Supreme Court did not deal with, or failed to understand, the defendant’s central argument that the mesothelioma was idiopathic, of unknown cause. Granted, there are not many other potential causes of mesothelioma apart from asbestos exposure; however, not all other causes have been ruled out. Framed as a competing cause case as between wrongful exposure

and environmental exposure, it was hardly surprising that Sienkiewicz would decide that Fairchild should apply, provided that the exposure was more than de minimis. However, the claimant must also prove that the defendant was in breach of duty. Proof of breach will automatically prove causation, thereby rendering the concept of causation redundant in these types of cases. It does not necessarily work the other way round: that is, proof of causation does not necessarily prove breach. Exposure to a risk of harm either is or is not material irrespective of foresight, whereas asking whether a defendant is in breach of duty depends on foresight. This, in turn, depends on knowledge, which may vary depending on when the risky activity took place. The cases to which I have referred involved asbestos. It might be suggested that Fairchild is not a leading case of the common law, as it has nothing to say outside its own enclave of law. However, even if Fairchild has become an exception in mesothelioma cases, there is nothing that confines it to mesothelioma. Remember, Fairchild borrowed the material increase in risk test from McGhee v National Coal Board, which involved dermatitis. The doors are not completely shut on non-mesothelioma cases, and apportionment also remains open because the Compensation Act only applies to mesothelioma. Do the Fairchild–Barker cases contain some fundamental principle that goes beyond the rule? Within the tort doctrine, there are two areas where we find echoes of the underlying principle: vicarious liability for sex abuse and, perhaps surprisingly, clinical negligence. In recent years, the doctrine of vicarious liability has been extending, particularly in the context of sex abuse involving various religious orders. In the 2010, Supreme Court case

IS FAIRCHILD A LEADING CASE OF THE COMMON LAW? INNER TEMPLE YEARBOOK 2014–2015

“ �airchild may foreshadow the precautionary principle into tort law. It may signal a shift away from conventional notions of responsibility and providence, away from solidarity and prevention, towards precaution in the face of increased uncertainty.” Various Claimants v Catholic Child Welfare Society, Lord Phillips explained that “vicarious liability is imposed where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse. The essential closeness of connection between the relationship between the defendant and the tortfeasor and the acts of abuse thus involves a strong causative link.” Lord Phillips says that the causal link justifies the imposition of vicarious liability. There are two problems with this: first, vicarious liability is traditionally conceived of as liability in the absence of fault; once causation in brought back into the equation, we reenter the realms of blaming people by following the causal chain. Even if we ignore the causation aspect of fault, the very idea of fault is linked strongly to the idea that we have the right not to be exposed to certain types of risk. So vicarious liability becomes a sort of fault liability after all. Secondly, Lord Phillips’ “strong causative link” relies on the language of increased risk, which is supposed to be an exception to the normal causation rules. Whatever else you might say about the material increase in risk test for causation, it cannot be that it is a strong causative link, because, as we have seen, we are in the realms of the possible, not the probable. In the very different context of clinical negligence, the Court of Appeal in Wright v Cambridge Medical Group found that a GP’s negligent delay in referring a child to hospital was a contributory cause of permanent injuries. When discussing remoteness of cause, Dame Janet Smith said, “The crucial point is the extent to which the defendants’ negligence shortened the period available to

the hospital to provide effective treatment and increased the risk that she would suffer permanent harm.” The material increase in risk idea was used in support of a finding that it is fair, just and reasonable to hold the defendants liable under the remoteness limb of the causation inquiry. The short point is that even if Fairchild–Barker is supposed to provide an exceptional test for causation, it has opened up the possibility of a much wider notion predicated on the idea of risk liability. In a way, risk liability is a reaffirmation of fault in the sense that we have the right not to be exposed to certain types of risk from harm. This is a fundamental underlying principle of the law of negligence. However, conventional doctrine continues to link risk to the defendant’s actual or constructive knowledge or foresight of that risk. Fairchild may foreshadow the precautionary principle into tort law. It may signal a shift away from conventional notions of responsibility and providence, away from solidarity and prevention, towards precaution in the face of increased uncertainty. As Francois Ewald has suggested: “Precaution, to a certain extent, brings us out of the age of insurance companies. It creates a world in which, in principle, compensation no longer has meaning, because the only rational attitude is to avoid the occurrence of a threat with irreversible consequences. Precaution is an attitude of protection rather than compensation.” If this is the direction in which tort law is heading, it is probably the beginning of the end, leading case or not. Per Laleng 20 January 2014

INNER TEMPLE

Nelson Goes To Law

Maﬆer Orde charts the legal battles Nelson fought for prize money and how an Admiral, so successful at sea, struggled on land.

Rear-Admiral Sir Horatio Nelson, by Lemuel Francis Abbott, 1799 GL Archive / Alamy

NELSON GOES TO LAW INNER TEMPLE YEARBOOK 2014–2015

elson’s contact with the judiciary was minimal. There is no evidence that he ever set foot in any of the Inns of Court save to visit the offices of his agent at Lincoln’s Inn. Sadly he was never made an Honorary Bencher, for, had he been so, medalled up like a Christmas tree, as was his wont, he would for sure have brought a spectacular splash of colour to Grand Night. However in the four years leading to his death at Trafalgar he was, like a fish out of water, to make as many appearances before the judges in London. On 17 October of 1799, two Spanish galleons bearing gold bullion were captured off Cape Finisterre by cruisers of the Mediterranean fleet at the northernmost margin of its station. When landed at Plymouth, it took no less than 44 wagons to transport the treasure to the Bank of England where it realised more than £661,000, worth more than £1million in today’s money. Admiral the Earl St Vincent quickly laid claim to a lion’s share of the prize as Commander-in-Chief of that fleet, notwithstanding that he had, on 31 July 1799, vacated his command, handed over operations to Lord Keith and returned home on sick leave. And Keith had by then delegated command to Rear-Admiral Lord Nelson. Nelson was therefore in de facto command of the Mediterranean

the battle. Those on the lower decks received a mere £4.14s 4d. A cartoon of the time showed a sailor praying that the enemy’s shot may be distributed in the same proportions. Relevant to St Vincent’s claim was a caveat in the 4th article of the Proclamation that “a chief flag officer returning home shall have no share of the prizes taken by the ships... left behind to act under another command”, even though it was he who had appointed the commanders involved who had still been cruising to his orders. At the same time, Nelson, as the operational commander out in the Mediterranean, had acquired all the authority he needed to countermand any of St Vincent’s orders, had he so wished. By 1801, Nelson, with an income of about £3,500 from his pay, pensions and investments, was much in need of money, as he so often was. Although now a Vice-Admiral of the blue and a peer of the realm, his illegitimate child had just been born, relations with his wife had finally broken down and he was in the process of an extravagant purchase of Merton Place. And here was money to which he felt he was entitled which St Vincent refused to disgorge. Solicitors were instructed to lay claim to it in the Court of Common Pleas, now the Queen’s Bench Division, in an action of assumpsit for money had and received. It was to be a battle as important

“ I will support him as a great sea officer, but was he forty times as great I will not suffer him to rob me with impunity.” fleet at the moment of the captures. But since St Vincent had not relinquished his command or been superseded until 26 November of 1799, Nelson stood to receive no more than a flag officer’s share. So too, the difficult RearAdmiral Sir John Orde Bt, brother of Lord Bolton and erstwhile third in command of the fleet, notwithstanding that he too was at home at the time preparing a challenge to St Vincent for a duel with pistols. The payout was speedy, for the treasure was already in liquidated form and St Vincent’s secretary, Benjamin Tucker, soon received £13,051 which he held to St Vincent’s account. By Royal Proclamation of 1708, updated to 1797, the distribution of money raised for the Crown from the capture and sale of enemy Spanish ships condemned as prize, was driven by rank. The net product was divided into eight equal shares. And then, in order to encourage the more enterprising captains, they were rewarded with two of the shares if they had been in fleet formation, three if they had not. The rules were not designed to enrich nonparticipating flag officers, save for the fleet Commander who received one share, one half of which he would then distribute amongst those flag officers who had directed or assisted in the captures. This recognised their responsibility for the disposition of ships and the training of crews. Broadly speaking the balance of five shares was then distributed amongst the many other officers and men according to rank. Thus had the absent St Vincent received the princely sum of £8,197.11s 0d after the Battle of the Nile, his fifteen captains £2,186. 5s 2d, and his flag officers, including the absent Rear-Admiral Sir John Orde Bt and Nelson, £1,366. 5s 2d, notwithstanding that it was he who had actually fought

to Nelson as his victory at the Nile. St Vincent wrote, “I will support him as a great sea officer, but was he forty times as great I will not suffer him to rob me with impunity’”. It seemed as if these two naval heroes, who were to give their country dominion of the seas for 100 years or more, were more at war with each other than with the enemy. They were opposites. Although the diminutive and courageous Nelson was an inspirational, magical and muchloved commander, he was nonetheless vain, flamboyant and a theatrical extrovert desperate for fame and glory, whereas the formidable St Vincent was a quick-tempered, cold, austere, secretive, monosyllabic autocrat and a strict disciplinarian. Yet both were supreme professionals, dedicated absolutely to the service of their King, Country and the Almighty, and so there was a mutual respect which no claim for money would be allowed to poison. After all, it was St Vincent who had unleashed the brilliance of Nelson and put it at the service of the British nation. Prize money was often swallowed up in prosecuting claims in corrupt and inefficient local Vice Admiralty courts and in paying commission to unscrupulous agents, but attempts at a settlement had failed to resolve this dispute. The issue to be judged was clear enough, but the resolution of it was not. Before his claim could be heard Nelson did acquire some legal standing when awarded a Doctorate in Civil Law, an honour for which he had been nominated by the Convocation of Oxford University. It was to be bestowed in full Congregation on 23 July 1802. The day before, the citizens of this ancient city of dreaming spires enthusiastically paid due homage to the great victor of Aboukir Bay as he slowly made his way down St Aldate’s

INNER TEMPLE

to the Town Hall. And there, on that very wet Thursday morning, the council in full session granted him the freedom of the City. Nelson then donated a sum to be distributed among the prisoners of the City Gaol, for, alongside his vanity and flamboyance, he was a just, humane, kind and compassionate man. After all, when at sea, he had always been ready to share the dangers of his men, suffer their privations and wear himself out in their service. Present also was that great Admiralty judge, Oxford academic, older brother of Lord Chancellor Eldon, and lifelong friend and executor of Dr Samuel Johnson, Sir William (‘Harry’) Scott, later Lord Stowell. A son of Newcastle upon Tyne and blessed with a powerful intellect, he was, although a dishevelled man with a serious appetite for food, drink and conversation, the boast of Oxford who had started in chambers at 3 King’s Bench Walk. Even more adulation was to come on the morning of Friday when Nelson’s visit was crowned with the degree of Doctor of Civil Law honoris causa, conferred on both he and Sir William Hamilton by the university gathered at the Encaenia held in the Sheldonian. Both were introduced by the Public Orator in proceedings conducted entirely in polished Latin, sublime and exquisite. And, curiously, although already basking in the glory that was his brother’s and garnering honours by association which that fame continued to generate, the university, purely out of courtesy and as a reward for coming along, at the same time admitted the Rev’d, William Nelson to a Doctorate of Divinity ad eundem. Academic dress worn at Encaenia, with robes variously coloured as the different disciplines and degrees

require, always provides a splash of colour, although, sadly, the author’s gown there in more recent times added but little to the occasion. But Nelson had made his own contribution to the scarlet cloth and crimson silk of his doctorial gown by proudly sporting on his left breast the stars and insignia of his four orders of knighthood, one of them Neapolitan with a blue and red border, another Turkish to which was attached a pink ribbon, a third a German private order recently awarded with a green ribbon, and a fourth, and the only one of much importance or value, the crimson ribbon of the Bath. To add to the spectacle his two more highly prized official gold medals from the Battles of Cape St Vincent and the Nile, hung suspended from ribbons placed around his neck. Surprisingly the only report of this in Jackson’s Oxford Journal is tucked away on an inside page squeezed between a listing of local events and the Calendar of prisoners anxiously waiting to be placed before the itinerant judges of Assize. But perhaps the supreme irony, given what was to follow next day, was that Nelson had been presented for his degree by the Vinerian Professor of Common Law, one James Blackstone LLD, a son of the great lawyer and author of the Commentaries, Sir William Blackstone, a previous Viner’s Law Professor and Fellow of All Souls, for he lived near Woodstock, of which he was Recorder, was law manager to the 4th Duke of Marlborough and curator of his vast and splendid Blenheim Palace, for it was to be at the doors of that great mansion on the following day that the menage à trois was to suffer insult and humiliation. Although their arrival there found the Duke in residence, it drew no more of a response than an invitation,

NELSON GOES TO LAW INNER TEMPLE YEARBOOK 2014–2015

“ Orde was, wrote Nelson, ‘to wallow in wealth, whilst I am left a beggar’.”

conveyed by a servant, to view the gardens and picnic in the grounds. Cold refreshments would be sent up from the kitchens. The Duke himself failed to appear. It was a deliberate and calculated snub. And it is clear that all three felt it deeply, the more so since Nelson had after Copenhagen been advanced a step up in the peerage to Viscount. He refused the collation offered, promptly ordered his carriage, and left in high dudgeon. It was a blip in his lap of honour to Wales and the West Country as a distinguished servant of the British Nation. He was one of those few giants who strode and dominated the national stage at one of the most critical periods of its history, a hero of magisterial greatness, comparable in every way to the Duke’s illustrious ancestor, Colonel John Churchill, for whom the mansion had been built by a nation then more grateful. However, the expedition soon regained its momentum with Nelson basking in the adulation of the citizenry as the curious Tria Juncta in Uno moved on to Gloucester, Monmouth and many points west. It was not until 1802 that judgment was given in Nelson’s case. Such was the ambiguity of Article 4 that in a reserved judgment given at the Guildhall Sessions on 26 November, the court was divided equally. There being no procedure for an appeal, Heath J, at the invitation of Nelson’s counsel, withdrew his verdict in favour of Nelson so that Nelson, never a man to accept defeat, could have the Special Verdict argued on a writ of error in the court of King’s Bench. Before this could be heard, Nelson found himself on 7 February of 1803 in court at the New Sessions House, Horsemonger Lane, Newington, to give evidence on behalf

of Colonel Edward Despard, a tall, slim, umbrella-carrying Irishman on trial for his life along with 12 others. All had been charged with treason after hatching a subversive harebrained plot in the Oakley Arms in Lambeth to assassinate the King in Horse Guards Parade as he made his way to the opening of Parliament, and then, with a rabble of drinkers from assorted public houses, to take over the Houses of Parliament, the Tower of London and the Bank of England. Nelson was more than ready to go on this errand of mercy since the resourceful Despard had been one of the few who had fought alongside him heroically on his 1780 expedition up the river San Juan to take the city of Granada in Nicaragua. But alas, called as his first witness by Serjeant Best, Despard’s counsel, and as his testimony got under way, Nelson was pulled up short by the awesome, ferocious, hot tempered, impatient, partisan yet brilliant Lord Chief Justice, Edward Law, Lord Ellenborough of Ellenborough in Cumberland, to whom victories at St Vincent, the Nile and Copenhagen clearly meant nothing. He fired a shot across Nelson’s bows with an admonition that the court could not listen to an account of his friend’s military career but wanted only to know of his general character. The author suffered a like rebuke as a raw second-lieutenant when attempting to speak on behalf of a wayward soldier at the Canterbury Magistrates Court in 1952! But Nelson was not a man to wilt under fire and it did not sink him. He persisted that Despard had shown great attachment to his sovereign when on the Spanish Main. But it was all to no avail and Despard and six other of the defendants were found guilty. Sentenced to a traitor’s death, he was to be

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“hanged by the neck … and whilst … still alive … bowels … taken out … head … severed … body divided into four quarters”. It sounds like one of Lord Ellenborough’s more merciful sentences! However, the jury’s recommendation for mercy was noted and Despard suffered a simple beheading! Nelson’s ‘appeal’ was heard at Westminster Hall on 28 June of 1803, the same Lord Ellenborough presiding, and a reserved judgment was delivered on 14 November. Ellenborough examined the wording of previous Proclamations in the minutest detail to know its intention before the court found for Nelson unanimously upon the ground that command and conduct of the Mediterranean station had automatically devolved upon him from the moment St Vincent left for England. The wording of Article 4 was judged to mean the commencement in fact of a commander-in-chief’s departure from the local station of his command for the purpose of returning home, leaving his fleet behind under the control of another. Nelson was therefore entitled to St Vincent’s share in its entirety. He used the money to reduce his various mortgages and satisfy a few of his creditors. But he still remained in debt, and £1,000 of St Vincent’s share still remained owing at the date of his death. But the supreme irony was that the principle there established was to cost Nelson dear. On 18 September of 1804, Lord Melville, Pitt’s new First Lord of the Admiralty, ordered Admiral Cornwallis to intercept four Spanish frigates carrying a consignment of gold and silver valued at more than £1million which were on their way from Rio de la Plata to Cadiz, lest the cargo fell into the hands of Napoleon. On 5 October, three were taken and the fourth was sunk with much loss of life. It was an act of hostility as unlawful as it was outrageous and within weeks it brought Spain out of uneasy neutrality into the war on the

side of France. And it brought, too, the prospect of rich pickings in prize money for whoever succeeded to the lucrative command of a new British Squadron, now thought necessary to be stationed off Cadiz. Orde, now a ViceAdmiral of the Red, was brought out of retirement to be its commander. Another case of gone today, here tomorrow! Since August, Nelson, by now worn out after months at sea guarding British interests in the Mediterranean, had been bombarding the Admiralty with requests for leave hoping to be back at home for Christmas. It was October before the Admiralty granted his wish but it was Christmas Day before the news reached him by which time he had learned of Spain’s entry into the war and of the valuable cargo captured. He promptly shelved his plan to return home and laid claim to a share of the prize money. The Admiralty, applying the ruling given in Nelson’s own case, rejected his claim upon the basis that at the time of the capture he was supposedly on his way home on leave. Loss of this and the western and most lucrative part of his command caused an insubordinate and petulant explosion from the wounded Nelson and an acrimonious and angry correspondence, written in accusatory and hysterical terms, followed. Orde was, wrote Nelson, “to wallow in wealth, whilst I am left a beggar.” Yet Orde had not been responsible for the formation of the Cadiz Squadron, still less for the selection of himself as its commander. In fact he was by this time everywhere singing Nelson’s praises. Peace between the two was later restored, but only after Orde had retired home. Indeed, by then a full Admiral, he was to attend Nelson’s funeral as Chief Bearer of the Pall, whilst St Vincent, although asked in good time, declined the invitation for reasons never explained. Maﬆer Orde

INNER TEMPLE YEARBOOK 2014–2015

Education & Training In 2013–14

Scholarship fund: Students called to the Bar:

Pupils trained:

315

£1.5m

Students mentored:

115

Careers guides distributed:

Hours volunteered by members:

Pegasus Access Support Scheme placements:

167

School students at Inn outreach events:

4,357 Miles travelled by E&T staff:

5,000

9,112

400

Qualifying Sessions obtained:

3780 65

INNER TEMPLE EDUCATION & TRAINING

Meet the Education & Training Team E

ducation and training is the core function of the Inner Temple. The system of education and training for the legal profession continues to be subject to great scrutiny. In June 2013, the Legal Education and Training Review Report noted that “there is no evidence that the system, or any one professional regimen, is fundamentally broken. Indeed, there is substantial evidence of the strength of the system, both from domestic and international viewpoints.” However, the report went on to recommend a number of ways in which the quality, accessibility and flexibility of legal education and training should be enhanced to ensure the system remains fit for purpose. As a result, in March 2014, the LSB issued statutory guidance to the front-line regulators, including the BSB, on regulatory arrangements they should have in place for education and training to deliver the following outcomes: • E ducation and training requirements focus on what an individual must know, understand and be able to do at the point of authorisation • Providers of education and training have the flexibility to determine how best to deliver the outcomes required • Standards are set that find the right balance between what is required at entry and what can be fulfilled through ongoing competency requirements • Obligations in respect of education and training are balanced appropriately between the individual and entity, both at the point of entry and ongoing • Education and training regulations place no direct or indirect restrictions on the numbers entering the profession So what does this mean for the education and training system for the Bar and Inner Temple’s role within it? The BSB is currently reviewing its regulatory arrangements for all stages of qualification including the qualifying law degree, the Bar Professional Training Course and pupillage. Will there be significant change? Very possibly. Concern has been growing about the cost of the BPTC and the impact of that cost on access to training by those from less-advantaged backgrounds. At the same time, there is significant concern about the number of students paying to undertake the BPTC who either do not pass the course or are unable to secure pupillage and complete the qualification process. The BSB is currently consulting with interested parties, including the Inns, and is due to consult more widely on its plans for reform later this year. In the meantime, the Inns, via the Council of the Inns of Court (COIC), are considering how they can further support high standards in legal education and training, particularly with regard to the Inns' area of expertise: advocacy training. Inner Temple, in particular, is also investigating how technology could be used to enhance our education provision and reach a wider audience. The following pages outline what the Inn is already doing to support and train future members of the legal profession through outreach, scholarships, a wide variety of qualifying sessions, student schemes and societies, pupil/ new practitioner advocacy and ethics training, and CPD. The Inn is immensely grateful to all its members who teach or assist with education and outreach programmes. With their ongoing support, the Inn will continue to do everything it can to meet the evolving needs of those training for the Bar.

The Education & Training Team

Education & Training Department Treasury Building, Inner Temple, London EC4Y 7HL Tel: 020 7797 8208 Fax: 020 7797 8212 Policy, Student Conference Weekends and Pupil Supervisors Fiona Fulton Head of Education & Training 020 7797 8207 ffulton@innertemple.org.uk Francesca Ellis Education Co-ordinator and Assistant to HET 020 7797 8207 fellis@innertemple.org.uk Schools, Universities, Academics and Research Struan Campbell Outreach Manager 020 7797 8214 scampbell@innertemple.org.uk Carys Nelkon Outreach Co-ordinator 020 7797 8262 cnelkon@innertemple.org.uk

Scholarships and BPTC Student Activities Eamonn O’Reilly Scholarships and Students Manager 020 7797 8210 eoreilly@innertemple.org.uk Paul Clark Scholarship and Students Co-ordinator 020 7797 8211 pclark@innertemple.org.uk

Pupils, New Practitioners and Established Practitioners David Miller Professional Training Manager 020 7797 8209 dmiller@innertemple.org.uk Kerry Upham Education Co-ordinator 020 7797 8213 kupham@innertemple.org.uk

OUTREACH INNER TEMPLE YEARBOOK 2014–2015

Outreach

t has been another year of rapid change for the profession, requiring many of the Inn’s functions to adapt quickly to the changing needs of its membership. Prospective students, like many practitioners, are struggling to understand how these challenges might impact them and are increasingly looking to ensure that they have the in-depth knowledge to make informed career decisions. This means that they call on the Inns of Court more than ever before for careers advice and guidance, and interest in the Inn’s events and programmes is greater than ever. The Outreach Sub-Committee, chaired by Master Dingemans, aims to ensure that the best and brightest students continue to consider a career at the Bar, while providing them with realistic information and guidance. The Inns of Court are the first port of call for prospective barristers and create the candidate pool of pupils for chambers. Given this role, the Inn has worked to engage with school and university students to provide them with an accurate assessment of their chances of securing pupillage, at the same time as encouraging capable students from diverse backgrounds to aspire to the profession. Inner Temple has continued to build on its successful programmes, including the Pegasus Access Support Scheme and the Academic Fellows Scheme. The Inner Temple is often ‘on the road’, working with a full range of universities across England and Wales through career presentations, law fairs and support of student law societies. Assistance from members of the Inn on the circuits has been particularly important for the success of our regional events, including those held in Southampton and Liverpool this year. We also continue to run the annual Dinner to the Universities and Question and Answer Open Days, both of which are greatly oversubscribed year on year. The Pegasus Access Support Scheme, launched in 2012, has been a great success. The scheme was launched after the Inn’s research found that work experience was one of the main barriers for aspirants to the professions, at the same time as being the best source of inspiration and self-assessment for students. The Inn launched the scheme to provide capable students from under-represented backgrounds in the profession with formal mini-pupillage placements to support them in their journey to the Bar. This scheme is in partnership with 61 partner sets of chambers,

Pathways to Law students from across the UK visit the Inn

representing one of the most broad and inclusive schemes of its kind. The Inn’s Schools Project continues to thrive under the guidance of Master O’Toole. The Inn began the Schools Project in 2008 working with the National Education Trust, Pathways to Law, and the Social Mobility Foundation. The Schools Project comprises a number of events throughout the year for students from across the country. We are working with new partners this year on some one-off events including the King’s College London K+ programme. The Inn also works with academic tutors and career advisers, providing them with information on the Bar so they can encourage their most capable students to consider a career at the Bar. The Inn hosted three dinners for legal academics this year to cultivate the links between the Bar and those who teach aspiring entrants to the profession. The Inn launched its Academic Fellows Scheme in 2010 and has since appointed 12 early to mid-career ‘academics to watch’. It has also recently appointed ‘Associate Academic Fellows’: those who have finished their three-year terms but wish to remain engaged in the activities of the Inn. Building on the Inn’s long academic history, this programme will help to support academic research and provides academics with information about the modern Bar for their students. It is important to the Outreach Sub-Committee that all of these programmes are properly evaluated to ensure they are making a sustained and positive impact. In addition to the regular briefings we publish on our students, pupils and practitioners, the Inn commissioned a doctorate over three years to evaluate our work in this area and to assess professional intervention in social mobility. An evaluation of the Inn’s Schools Project was conducted in the first phase, demonstrating the profound impact this programme is having on school-aged students. This will not only add to the Inn’s research base but will make sure that the programmes we undertake make a positive impact and are cost-effective. The Inner Temple is dependent on the generosity of its members to carry out its educational activities. We are deeply grateful for the many members who have given up their time this year to help the next generation of the Bar. If you are willing to take part in any of the activities noted in the following sections, please do not hesitate to contact the Outreach Team.

INNER TEMPLE EDUCATION & TRAINING

Master Treasurer’s opening speech, Dinner to the Universities

RECRUITMENT ACTIVITIES INNER TEMPLE YEARBOOK 2014–2015

Recruitment Activities Recruitment and Outreach: Standing Events

Month

Law fairs across England and Wales

October-December 2014

Dinner for Legal Academics

November 2014

North Eastern Circuit Reception – Newcastle

November 2014

Northern Circuit Reception – Manchester

November 2014

Schools – Open Day with the National Education Trust

November 2014

Schools – Pathways to Law Skills Workshops

November 2014

Academic Fellows Reception

November 2014

Western Circuit Reception – Southampton

February 2015

Dinner for Legal Academics

February 2015

Schools – Pathways to Law National Open Day

February 2015

Police Liaison Scheme Mock Trial

February 2015

Dinner to the Universities

March 2015

Schools – Pathways to Law Open Day

April 2015

Dinner for Legal Academics

April 2015

Circuit Reception April 2015 Dinner for Academic Fellows

May 2015

Question and Answer Day

June 2015

Police Liaison Scheme Reception

September 2015

Bristol Area Careers Presentation

October 2015

Cambridge Area Careers Presentation

October 2015

Oxford Area Careers Presentation

October 2015

London Area Careers Presentation

October 2015

Inner Temple Schools Project

he Inner Temple began a pioneering Schools Project in 2008 and now works with a range of organisations that raise the aspirations of young people. The aim of the project is to ensure that all students, regardless of their background, are aware of the opportunities available to them at the modern Bar. This is part of the Inn’s programme aimed at challenging stereotypes about the Bar and promoting social mobility in the profession. The Inn is working with the National Education Trust, Pathways to Law, and the Social Mobility Foundation. Pathways supports high-achieving state-school students with no family history of higher education into leading law faculties and the legal professions. As part of this programme, the Inn organises a number of open days with legal activities and careers information for students from co-ordinating universities. The Schools Project consists of open days for school students from across the country and two afternoon skills workshops. These events include talks from members on different areas of law, presentational skills sessions, debating tournaments and opportunities to interact informally with practising barristers. The Inn also works with other charities on one-off events. Pathways to Law student participating in advocacy exercise

INNER TEMPLEâ&#x20AC;&#x201A; EDUCATION & TRAINING

University Students

Students attending a Career at the Bar panel discussion

Regional Receptions

University Presentations

As well as the four large university presentations run annually by the Inn, smaller receptions are organised on Circuit. The Inn has set up a small fund to support local members running their own events on Circuit. These receptions bring together local practitioners with university students. This provides aspiring barristers with information in an informal atmosphere about careers at the Bar. The location of these receptions will rotate annually.

Four large recruitment presentations are run annually in Oxford, Cambridge, Bristol and London. Each presentation includes a panel of speakers with a pupil, self-employed barrister, employed barrister and a judge. During the subsequent receptions, university students have the opportunity to gain further one-to-one advice from members.

Dinner to the Universities

Over the Michaelmas term, Inner Temple attends more than 20 law and careers fairs throughout England and Wales. Hundreds of university students have had the opportunity to speak to members of staff from the Education and Training Department about pursuing a career at the Bar, Inner Templeâ&#x20AC;&#x2122;s scholarships, education programmes and life at the Inn.

Dinner to the Universities is an annual event for undergraduate students and those on the law conversion course who are interested in a career at the Bar. Students from a wide range of universities are invited to this black-tie dinner at the Inn where they meet practising members and have the opportunity to ask questions about the Bar and the Inner Temple.

Question and Answer Day Question and Answer Day is run in conjunction with the Junior Bar Association. The full-day event on a Sunday in June is advertised to undergraduate students at all universities in England and Wales offering a qualifying law degree. Information workshops are held on funding studies, legal CVs, the BPTC, life as a pupil, junior tenant and employed barrister, pupillage interview tips, and more.

Law fairs

Tours at the Inn The Education and Training Department offers tours of the Inn for hundreds of university students every year. The tours give potential members the opportunity to visit and explore the Inn with an experienced representative of the Education and Training Department who will be able to provide a general overview of the Inn, and useful information about becoming a member and what students can expect from their BPTC year and beyond.

Dinners for Legal Academics The Inner Temple holds four small dinners during the academic year for legal academics from universities across England and Wales. Many of the attendees are undergraduate law tutors, careers advisers or lecturers. These dinners also connect with the Academic Fellows Scheme.

INNER TEMPLE YEARBOOK 2014–2015

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INNER TEMPLE EDUCATION & TRAINING

Inner Temple Scholarships T

he Inn very generously made a total of £1,500,000 available for scholarships this year, which was then allocated between awards for the BPTC, the CPE/GDL, internships and a few very small awards for those with a minimally funded pupillage. £1,238,250 of the fund was intended to be used for BPTC awards. In fact, we had a number of deferred and declined awards in 2013. This enabled us to allocate a further £40,250 for the BPTC year, making a total available for distribution of £1,278,500 for the BPTC awards alone. All our awards are made strictly on merit – that is, on the basis of our judgment of a candidate’s potential to succeed at the Bar. The top seven named awards are based on merit alone. All the other awards take financial need and resources into account in deciding the quantum of the award, once a candidate has reached the relevant merit threshold to receive an award. This enables us to decide how much money to give to each successful candidate, thereby ensuring that the bulk of our funds are targeted at those who most need them. This year we received 362 applications for BPTC awards. We have a policy of interviewing every eligible applicant and, after allowing for withdrawals, we interviewed 306 candidates. The interviews incorporated a legal problem – candidates were given an unreported case (either family, crime or civil) to read on the day of the interview. They were then asked questions by the interview panels to see how well they had grasped the issues in the case and the legal arguments involved. We have found this to be an excellent tool to help us assess the ability of each candidate in an entirely fair way.

“ …the interview format, which, while probing, sought to facilitate demonstration of one’s strengths. This reflects my wider experience of the Inn, which has been welcoming, stimulating, and ever ready to counsel or help. ” Benjamin Waistell – Peter Taylor Scholar

BPTC award interviews took place over two weekends in March and the interviews were held by ten panels, each comprising four interviewers. Seven of the panels were situated in the Treasury Building and three within rooms generously made available by 1 King’s Bench Walk. 48 Benchers/Members of Hall and 16 former scholars volunteered to assist the Inn during these weekends. Although this involved an immense amount of hard work, our policy of conducting interviews for all eligible applicants means that all are given an equal chance to present their case to the panel. Students tell us that they very much value this opportunity.

“ I owe my ability to continue working towards my ambition to become a barrister to the support and encouragement of the Inn. The scholarship programme recognises potential regardless of background. By investing in individuals such as myself, the Inner Temple has demonstrated a genuine commitment to helping people from all backgrounds to succeed within their walls.” Jodie Anderson – Major Scholar

We have awarded the Peter Taylor and Stephen Chapman Scholarships, five Princess Royal Scholarships, 20 Major Scholarships and 72 Exhibition Awards for the BPTC (a total of 99). This meant that the average award was £12,900 and we were pleased to be able to make 53 awards of more than £15,000. The success of the policy of interviewing all eligible applicants can be seen in the increase in the number of applications we have received since introducing the policy in 2009. We are quite satisfied that this has not been at the expense of quality as we have seen a steady increase, year on year, in the number of candidates achieving good merit grades. Whilst this makes it even more difficult to strike the right balance between making meaningfully sized awards and assisting every deserving candidate, it is certainly encouraging for the future of both the Bar and the Inn.

“ Being awarded the Princess Royal Scholarship was truly an honour. I would have struggled to fund my BPTC without a scholarship but the award is more than generosity to me: it symbolises that those in the profession believe I have what it takes to achieve my aspirations – a belief that has made me more determined than ever to succeed.” Scarlett Milligan – Princess Royal Scholar

For those students who must undertake the CPE/GDL before commencing the BPTC, the Inn also offers scholarship interviews to every eligible applicant and we are grateful once again to those members who generously donate their time in order to assist. The interviews took place in June and we have now made awards to 25 of the 85 candidates – two Princess Royal Scholarships, four Major Scholarships and 19 Exhibitions. Successful candidates are guaranteed a matching award for the BPTC year so that they know that they will be supported for both years of the training process.

SCHOLARSHIPS INNER TEMPLE YEARBOOK 2014–2015

This has also proved very popular amongst applicants. In addition to funding the two main vocational courses, a small number of Benefactors’ Scholarships are available to support minimally funded pupillages. We also support a number of our young barristers to undertake internships, almost all of which take place overseas. This proves very beneficial both to those in receipt of the awards and the very deserving communities in which they work. Scholarships play a vital role in widening access to our profession. For many candidates, a scholarship from the Inn can be a deciding factor in whether they decide to pursue the BPTC course – a fact borne out by the diverse backgrounds of our scholars. Of the 99 successful BPTC candidates this year, 30 per cent were over the age of 25, 14 per cent were from a non-white ethnic background, 51 per cent did not have an undergraduate law degree, and 65 per cent came from state education.

“ Being awarded the Stephen Chapman Scholarship has opened up incredible opportunities for me. Thanks to this support I will be able to study the BPTC full-time and in London as I had hoped. This gives me the chance to start settling into the capital and throw myself into life at the Bar. I am incredibly grateful and would like to thank all those involved for giving up their time so selflessly to make the process smooth and stress-free. The interviews themselves were demanding but fair, and even fun, and I am really looking forward to getting more involved with the Inn.” Rachel Sullivan – Stephen Chapman Scholar

INNER TEMPLE EDUCATION & TRAINING

Inner Temple BPTC Scholarship Wınners 2014 Peter Taylor Scholarship: Benjamin Waistell Stephen Chapman Scholarship: Rachel Sullivan Princess Royal Scholarships: Scarlett Milligan, George Molyneaux, William Rees, Elizabeth Stevens, Christopher Sykes

Major Scholarships: James Abernethy, Samir Amin, Jodie Anderson, Nicola Aston, Gideon Barth, Abigail Bridger, Matthew Dawkins, Grace Flynn, Sabina Garahan, Nick Grant, Michael Haggar, Thomas Horton, Natasha Jackson, Tihomir Mak, Nissim Massarano, Rea Murray, Rachel Owusu-Agyei, Rhys Rosser, Daniel Wand, Bernard Wood

Inner Temple GDL Scholarship Wınners 2014 Princess Royal Scholarships: Niamh Quille, George Vibetti Major Scholarships: Alexander du Sautoy, James Frampton, Jonathan Goddard, Khatija Hafesji

Exhibitions: Katie Atkinson, Sian Beaven, Michael Conway, Joshua Crow, Rose Fetherstonhaugh, Hannilee Fish, Katharine Geddes, Max Gordon, Raphael Gray, Iain Large, Sam Lipetz-Robic, Brooke Lyne, Reanne MacKenzie, Alexander Maunders, Matthew Mears, Tapiwa Moffatt, Patrick Page, Luke Taylor, Samuel Way

Exhibitions: Shina Animashaun, Gus Baker, Rosamund Baker, Jessica Bass, Isabel Baylis, Hayley Bennett, Simon Bowen, Joseph Bryan, Simon Byrne, Lucy Cash, Thomas Clarke, Eleanor Davies, Samuel Davis, Jennifer Dickinson, Gary Donaldson, Harriet Dudbridge, Luke Eaton, Charles Fulton, Bethany Garrett, Eleanor Gerrans, Hannah Gibbs, Lavinia Glover, David Green, Oliver Harris, Belize Harrison, Helen Hayward, Jack Hickling, Lucy Inmonger, Rosheen Iyer, Daniel Jasinski, Ami Jones, Alexander Jones, Molly Joyce, Natalie Kearney, Zachary Kell, Sahar Khan, Katherine Lane, Abigail Langer, Max Lansman, Joseph Lee, Martha Lewis, Emma Lui, Kristina Lukacova, Edoardo Lupi, Meredith Major, James Mallon, Hayley Manser, Michael McCabe, Joanna Moore, Sarah New, Angelina Nicolaou, Laura Paisley, Anna Peaston, Zara Poulter, Imogen Proud, Andrew Rhodes, Adeel Riaz, Avril Rushe, Thomas Rushton, Chisara Sagay, Annie Sampson, Jayed Sarker, Alice Scott, Shanthi Sivakumaran, Jennifer Smith, Karen Sosa, SophieLouise Stannard, Cameron Stocks, Scott Storey, Michael Utterson, Alexander Williams, Aidan Wills

INNER TEMPLE YEARBOOK 2014–2015

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INNER TEMPLEâ&#x20AC;&#x201A; EDUCATION & TRAINING

Internship and Sir Joseph Priestley Award Winners 2012â&#x20AC;&#x201C;14 The Inn, with the help of a generous grant from a trust set up in memory of Sir Joseph Priestley, makes a small number of awards each year. These scholarships enable students and newly qualified barristers to pursue projects all over the world that help to widen their experience outside of the Bar and enhance skills that they can thereafter bring to their practice.

Alistair Haggerty Amicus in the USA

Alice Richardson

Edward Smith

Reprieve in the USA

Lawyers Without Borders in Connecticut

Naomi Scarano

Jodie Anderson

Human Rights Watch in New York

Reprieve in the USA

George White Texas Defender Service

Claire Rogers Texas Defender Service

Peta-Louise Bagott Amicus in the USA

Jonathan Worboys

Charles Forrest

Public International Law and Policy Group in Washington DC

Advocates for Human Rights in the USA

Claire Parry Amicus in the USA

Sanjay Roy Texas Defender Service

Holly Platt Amicus in the USA I was kindly awarded the Sir Joseph Priestly Scholarship for my internship in Houston, Texas to assist in the defence of clients charged with capital murder (organised through Amicus). The only way to do it justice is to say that it really was a life-changing experience. During my time there I was tasked with visiting clients on death row and in the county jail, drafting a plea bargain to the District Attorney, drafting a letter of advice to the client, drafting a court order, summarising documents and evidence from police offence reports to DNA evidence, compiling strengths and weaknesses charts, preparing mitigation witness lists, producing a trial notebook to assist with witness handling, and conducting a practice cross-examination with the client in preparation for trial (this is not unethical, but is in fact encouraged, in Texas). I am due to start pupillage this month and I have no doubt that the skills I acquired and developed will prove to be invaluable.

INTERNSHIPS INNER TEMPLE YEARBOOK 2014–2015

Matthew Fraser European Council on Refugees and Exiles My Internship Award enabled me to work in Brussels as a legal assistant for the European Council on Refugees and Exiles (ECRE), a pan-European alliance of 82 NGOs protecting and advancing the rights of refugees, asylum seekers and displaced persons. During my time at ECRE, I did research for a written intervention in the case of Tarakhel v Switzerland, which was heard by the Grand Chamber of the European Court of Human Rights in February 2014. I also co-wrote a communication to the Council of Europe Committee of Ministers concerning Greece’s compliance with the Grand Chamber’s judgment in MSS v Belgium and Greece. But the part of the job I most enjoyed was providing direct assistance to the many asylum seekers currently living in Brussels. I gave advice to newcomers at the soup kitchen every Monday, organised football for asylum-seeking children, and managed to run 20km to raise money for a fantastic local NGO called Flemish Refugee Action.

Anita Davies Visiting law fellow in Kathmandu In September 2013, I spent six weeks at the Chakrabarti HaBi Law College in Kathmandu as a visiting law fellow. The college entrusted me with the third year LLB students, teaching a series of lectures on international humanitarian law, which resulted in spirited discussions on issues as diverse as cyber warfare, the legality of US intervention in Iraq, and Afghan drug running. Whilst there, I helped coach a team of third-year students who were preparing for their first ICRC moot and who got through to the final round. When not teaching, I was researching transitional constitutionalism in Nepal, which involved meeting with the Nepal Bar Association, Advocacy Forum, and the former Chief of Armed Police. I hope to publish the research in the new journal currently being planned by the Chakrabarti Centre for Human Rights and Democracy.

Edward Granger

Alex Williams European Court of Justice

Joseph Markus The European Court of Human Rights

European Court of Justice

Mandisa Knights SoA Leadership in Sierra Leone

Philippa Woodrow Centre for Capital Punishment Studies in Uganda

Stephen Clark Foreign Law Clerk in the South African Constitutional Court

Jacob Taylor The African Court on Human and Peoples' Rights in Tanzania

Grace Capel The Refugee Advocacy and Support Project in Turkey

Jana Sadler-Forster The Bangladesh Legal Aid and Services Trust in Dhaka

Andrew Stone

Rosie Godfrey-Lockwood

Reprieve in Pakistan

Albar and Partners in Kuala Lumpur

Amanda Sheppard Bowman Gilfillan in Cape Town

Marlene Cayoun PREDA, IJM and ABA-ROLI in Manilla

Natalie Foster The African Prisons Project in Uganda

Olivia Bliss Women's Legal Centre in Cape Town

Hannah Glover Lawyers for Human Rights in South Africa

Thanks to the generous assistance of the Inner Temple, I recently completed an internship at the Women’s Legal Centre in Cape Town, a non-profit organisation providing legal assistance to economically disadvantaged women in South Africa. The internship was a fantastic and formative experience for me and I was able to use the legal skills I acquired during the BPTC in an international setting. My tasks as an intern were varied and interesting. I carried out research for the Khayelitsha Commission of Inquiry and co-authored submissions to the South African Parliament about new legislation affecting women. Assisting the brilliant lawyers and passionate feminists at the WLC was a huge privilege.

INNER TEMPLE EDUCATION & TRAINING

Qualifying Sessions

Student Training and Support

nner Temple qualifying sessions build on and complement students’ academic and vocational education, laying the foundations for post-Call professional training. The sessions aim to equip students to be fit and proper to serve the public as barristers by meeting and learning from practitioners the following: • Professional Integrity and Ethos • Professional Skills, in particular Advocacy • Professional Interpersonal Skills • Professional Development All BPTC students are required to complete 12 qualifying sessions in order to be called to the Bar. There is no limit to the number of qualifying sessions a student may complete during the BPTC or in any particular term, but qualifying sessions are only valid if they are completed in the five years leading up to a student’s Call Night. The Inn provides a variety of qualifying sessions each year, enabling students to learn about the law and more broadly about the legal profession, as well

BPTC Advocacy Day Two BPTC Advocacy Days were held in the early part of this academic year, attended by 192 students in total. Taught by the Inn’s advocacy trainers as well as new practitioners who had recently completed the New Practitioners’ Advocacy Weekend, these qualifying sessions allowed BPTC students the opportunity to practise their advocacy skills in a supportive and informal environment as they began the BPTC.

as to develop their advocacy and presentational skills. The qualifying sessions are designed to add to the skills and knowledge gained on the Bar Professional Training Course (BPTC) and to bring the students’ learning to life through contact with practising barristers and judges. Whilst historically, the emphasis was solely on learning by ‘osmosis’ and networking through social activities, such as dining with experienced members of the profession, the current focus is now firmly placed on developing the knowledge and skills necessary to practise as a barrister. In no other profession is there such a structured and regular meeting of the most senior with the most junior of practitioners, with the former giving their time pro bono. We recognise that our student members study the BPTC at providers across England and Wales, and endeavour to provide a wide range of qualifying sessions at weekends as well as during the week and to arrange local qualifying sessions for students at providers outside of London. Inner Temple also provides a range of support schemes for student members and has several vibrant student societies.

Presentational Skills Course Taught by professionally trained actors and vocal coaches and attended by 253 students, the presentational skills course, worth two qualifying sessions, gave students the opportunity to develop skills such as voice projection, posture and awareness.

Presentational Skills Course

QUALIFYING SESSIONS INNER TEMPLE YEARBOOK 2014–2015

Education Day This qualifying session is specifically tailored for students studying at providers outside London. The date is agreed in advance with the other Inns and the BPTC providers so that students can travel to London together. This year, a significant number of our 197 non-London students attended sessions on ethics, pupillage applications, pitfalls of the early years of practice, and observed a mock trial on clinical negligence. Students then joined our London-based students at Lecture Nights following the Education Days.

Lectures followed by Dining These qualifying sessions gave students the opportunity to hear from experts on a wide variety of legal topics of relevance to students training for the Bar and to be able to discuss these topics with their fellow students and senior members of the Inn. Speakers and topics included:

• Michael Reed, Chief Legal Officer of FRU, on The Work of FRU

Lecture Nights Each worth one qualifying session, this year’s Lecture Nights gave students the opportunity to hear from experts, including judges, barristers and legal academics, on a wide range of legal issues.

• Master Coghlan on Pernicious Patients Suing Dastardly Doctors? • Master Simon on Litigants in Person • Master Carr on International Litigation in the English Commercial Court • Master Morley on International Criminal Law

7 October

Lecturer: Maﬆer Mahoney The Relationship Between the Strasbourg Court and the National Courts

11 November

Lecturer: Maﬆer Reed The Common Law and the ECHR

20 January

Lecturer: Per Laleng, Inner Temple Academic Fellow, University of Kent Is Fairchild a Leading Case of the Common Law?

17 February

Lecturer: Professor Andrew Burrows QC, University of Oxford Unjust Enrichment

17 March

• Master Agnello on Insolvency, Globalisation and Common Law • Master Simon on The Importance of Collegiality in a Self-Employed Profession • Lord Hunt on The Culture, Practices and Ethics of the Press Post-Leveson • Clive Scowen, Editor of the Law Reports and the Weekly Law Reports on If I Can Google, Who Needs Law Reports? • Master Reader on Conduct in Court: the View From the Bench • Master Fetherstonhaugh on Don’t Forget Arbitration • Dr Ronan McCrea, Academic Fellow, on Taking Conscience Seriously: Freedom of Conscience and Non-Discrimination in European Law • Dr des Eddie Bruce-Jones on Death in Custody and the Article 2 Inquest: a German–UK Comparison

Lecturer: Joanna Miles, Inner Temple Academic Fellow, University of Cambridge LIPs, LASPO and the State of Family Justice

INNER TEMPLE EDUCATION & TRAINING

Student Conference Weekends

Left to right, top line: Master Paget, Junior Smart. Left to right, bottom line: Professor John Pitts, Carlene Firmin MBE, Detective Superintendent Gordon Allison, Detective Chief Superintendent Dean Haydon

ach year, the Inner Temple hosts three student conference weekends, each of which is worth three qualifying sessions to student participants. Each conference focuses on a particular topic both at the forefront of current affairs and closely relevant to those training for the Bar. Students also have the opportunity to meet senior members of the Inn in a relaxed and informal atmosphere and to develop their advocacy skills under the tuition of experienced barristers and judges.

Clinical Negligence - Are Lawyers Part of the Problem or Part of the Solution?

Press Regulation - Still Hacked Off ?

Speakers: • Peter Walsh, Chief Executive, Action Against Medical Accidents • David Body, Irwin Mitchell • Professor Sebastian Lucas, Professor of Clinical Histopathology at Guy’s, King’s and St Thomas’ Hospital • Dr Anna-Maria Rollin, Professional Standards Advisor at the Royal College of Anaesthetists • Master Francis, Serjeants’ Inn and Chairman of the Mid-Staffordshire NHS Foundation Trust Public Inquiry

This conference, held at Cumberland Lodge in December 2013, considered the balance between freedom of the press and protection of the rights of individuals in light of the Leveson Inquiry into press hacking. Speakers: • Mark Warby QC, Head of Chambers at 5RB • Master Purves, broadcaster and journalist • Dr Evan Harris, Associate Director, Hacked Off • Will Gore, Deputy Managing Editor, London Evening Standard, The Independent and The Independent on Sunday • The Rt Hon The Lord Hunt of Wirral MBE, Chairman of the Press Complaints Commission • Jacqui Hames, former Crimewatch presenter and victim of press intrusion

hanks are due to all members and speakers who assisted with these conferences and, in particular, to the members on the organising panels: Master Christie, Master Bing, Master Stuart Brown, Master Paget, Master Jafferjee, Robin Sellers and Kathryn Arnot Drummond.

Held at Highgate House in February 2014, this conference considered whether the increased threat of litigation may or may not have led to increased ‘defensive’ medicine and whether this has had any impact on patient safety.

Gang Crime We returned to Cumberland Lodge in March 2014 for a conference addressing the legal problems faced in cases involving gang crime, as well as the societal issues and factors influencing young people’s decisions to join a gang. Speakers: • Master Paget • Master Jafferjee • Professor John Pitts, Director, Vauxhall Centre for the Study of Crime, University of Bedfordshire • Carlene Firmin MBE, Head of the MsUnderstood Partnership and Research Fellow, University of Bedfordshire • Detective Chief Superintendent Dean Haydon, Head of Trident Gang Crime Command • Detective Superintendent Gordon Allison, Trident Gang Crime Command • Junior Smart, Southwark Offenders Support (SOS) Project, St Giles Trust

QUALIFYING SESSIONS INNER TEMPLE YEARBOOK 2014–2015

“ The conference on Gang Crime provided a unique opportunity for student members of the Inner Temple to learn about the increasingly problematic issue of gang-related crime. Discussing the academic difficulties related to convicting defendants on the basis of joint venture and the inherent practical problems that arise in trials of this nature, with witnesses unwilling to come forward and testify through fear, was particularly interesting.” Elizabeth Garcia

“ The panel discussion on Press Regulation was lively and thought-provoking, and I was impressed by the calibre of the speakers. The mock trial (in which senior members of the Inn played judge, counsel and witnesses) was both educational and highly amusing. It was invaluable to ‘see’ examples of good and bad advocacy in practice.” Elizabeth Gallagher

“ The student conference at Highgate House on the topic of Clinical Negligence was an incredibly useful experience for someone like me, with an interest in the area of law but previously lacking any real insight into the way it works. To have highly experienced barristers explain the workings of clinical negligence was great, but what made it better was to have medical professionals who came to speak to us, giving us the chance to see these ‘experts’ and understand their perspective, giving them a real ‘face’, rather than just treating them as mechanical parts of a case.” Pem Tshering

Confidence and the Art of Persuasion This new qualifying session used the latest and most innovative techniques adapted from the world of theatre to help students engage with and convince an audience. The two principal methods used were storytelling and improvisation. All trainees attended a joint opening session on listening before dividing up into two groups for specific coaching on each technique. This half-day qualifying session was run twice and was attended by 90 students in total.

Local Qualifying Sessions This year, 184 student members of the Inn studied across eight course providers outside of London. Whilst the Education and Training Department organises a large proportion of the educational events held at the Inn on weekends in order to allow as many students as possible to attend regardless of where in the country they study, we also help students at providers on circuit to arrange up to three local qualifying sessions at their own provider. Students at each provider are given the latitude to arrange their own sessions but are supported by the Education and Training Department, which provides a small subsidy for each student and facilitates contact with local members who may be willing to give lectures, host advocacy workshops, or judge mooting or debating tournaments. Additionally, for the past three years, the four Inns have collaborated on a joint qualifying session at each provider on circuit, open to students of all four Inns. Local qualifying sessions held this year have included: • Human Trafficking: Criminals or Victims? A joint session hosted by Gray’s Inn at the University of Law, Birmingham; the University of the West of England and in Manchester for students of Manchester Metropolitan University and BPP Manchester. • Counter Piracy: an Advocate’s Account Lecture by Master Parsley at Cardiff Law School. • People Trafficking: a Victim-Focused Approach Joint session hosted by Simon Phillips QC for Inner Temple at BPP Leeds. • Advocacy Training Day Hosted by the North-Eastern Circuit at BPP Leeds. • CV Workshop, Interview Tips and Life in Chambers Hosted by Master Birkett for students at Manchester Metropolitan University and BPP Manchester. • The Jury System: Change and Stability Over 50 Years Joint session hosted by Master Bing for Inner Temple at Nottingham Law School. • How Reliable is the Human Witness? Lecture by Master Goss at Northumbria University.

Advocacy exercise at Cumberland Lodge

INNER TEMPLE EDUCATION & TRAINING

Marshalling Scheme The Marshalling Scheme provides BPTC students and new pupils with the opportunity to sit with a judge for a few days and discuss their cases in detail. This is a valuable chance to observe the court from the perspective of the judiciary.

Mock Interview Scheme This scheme is an opportunity for students to practise their interview technique in front of an experienced barrister ahead of pupillage interviews. Participants have found this to be a very beneficial and rewarding experience, having gained valuable feedback on a one-to-one basis.

“ As I have now completed the BPTC, this was perfect timing to see how everything I had learnt held together for what was a substantial and complex trial. Marshalling is the best opportunity to understand how the various personnel in the court room interact, how the judge works, his or her decision-making process, and how the quality of the advocate affects the judicial process.”

“ The Mock Interview Scheme gave me a huge level of insight into what chambers will be looking for, their concerns and expectations, as well as my own strengths and weaknesses. I have already recommended the scheme to everyone I know in the Inn.”

Mentoring Scheme

Police Liaison Scheme

This year, 176 students across England and Wales took part in the Mentoring Scheme, which aims to pair BPTC and GDL students with barristers practising in a discipline that matches each student’s interest. The Inn’s pool of generous volunteers covers nearly every area and method of practice, from crime to commercial and from self-employed to in-house counsel. The Mentoring Scheme can be of huge benefit, particularly to those students who have little to no prior experience of the profession. Mentors are encouraged to offer general advice, guidance and encouragement either in person or by email, to offer an experienced eye in looking over students’ pupillage applications and to meet up with their student during the year, either at the Inn or at a mutually convenient venue. This year, many students attended Mentors’ Dining Night and Pupillage Advice Evening together with their mentors, offering students the chance to network with members of Hall and Masters of the Bench in both formal and more relaxed settings.

“ The Police Liaison Scheme was very informative as to how the police attend a scene, gather evidence, deal with people who have been arrested and then process all the relevant paperwork in relation to criminal offences. It allowed me a greater understanding of the process, from the incident itself through to attending court.It was a fantastic experience; officers were welcoming, friendly and made me feel part of the team.”

The Police Liaison Scheme aims to foster a greater mutual understanding between the police, the Bar and the judiciary. Under this reciprocal scheme, BPTC students have the opportunity to visit a police station to gain an insight into the workings of the police, criminal procedures in practice and how incidents are dealt with in the first instance. This may involve accompanying officers on patrol, shadowing the Prisoner Handling Team or shadowing detectives in CID.

MOOTING AND DEBATING INNER TEMPLE YEARBOOK 2014–2015

Inter-Varsity Mooting and Debating by Maﬆer Morley

he Debating InterVarsity is one of the oldest and most prestigious inter-varsities in the country, and this year’s marked one of the most successful in the history of the competition. Not only did the competition set a new standard for quality of public speaking and originality of debate topics, it also attracted a record number of competitors, including students from as far afield as Scotland, Germany, Austria and Australia. This year also saw the introduction of the Harrison Plate, named after the late Peter Harrison QC, a Bencher and advocacy trainer, whose tireless dedication to the training of Bar students made him one of the most popular and respected members of the Inn. The Debating Inter-Varsity, sponsored by Blackstone Chambers, began on Friday 31 January and concluded the following day with a black-tie dinner addressed by Stephen Hockman QC, the Treasurer of Middle Temple for 2015. The Grand Final on Saturday evening showcased world-class debating and was adjudicated by a panel including Master Treasurer and Master Reader. The winning students from Cambridge University (Ashish Kumar and Ben Adams) were presented with the Harrison Plate in the presence of Peter Harrison’s brother and parents. The competition was a huge success, and the Debating Society is very grateful to all the student volunteers who assisted throughout the competition and, in particular, to all of the staff, Benchers and senior members of the Inner Temple for their unfailing support. For mooting, on Sunday 2 February, the Inn presented the King’s Cup to the winners of the annual Inter-Varsity Moot, Lincoln’s Inn (GDL students Alex Harding and George Harnett).

The cup was a gift to the Inn from the King of Bhutan, who has recently become an Honorary Bencher. It was awarded in the presence of the Chief Justice of Bhutan and three senior judges of his High Court, as well as the Reader Elect, Master Cryan. The final round of this one-day competition was chaired by Master Brougham, Master of Moots, as well as Christopher Heather and Robert Bower as representatives of Tanfield Chambers, the competition’s sponsor for a second consecutive year. Following the success of the Inter-Varsity Moot, and in light of the upcoming 800th anniversary of the signing of the Magna Carta, the Inn and the English Speaking Union will host the Liberty Moot in October 2014, where mooters from the Inn and ESU will moot against each other at the Inn. In addition, in October 2015, the Magna Carta Moot will be held in Hall over dinner. The Magna Carta Moot will see winners of Inner Temple’s and the ESU’s respective inter-varsity moots face each other in what will prove to be the definitive moot for university students in the UK. The Harrison Plate and the King’s Cup, as well as the Rawlinson Cup, awarded to the best student debater, and the Sachs Cup, awarded to the winner of the Lawson Moot, will remain on permanent display in the new trophies cabinet at the entrance to Hall. The Sachs Cup was originally a prize for a golfing competition with the Belgian Bar in 1965, given to the Inn by Lord Justice Sachs, rededicated to mooting with permission from his son, Richard, who this year presented the prize in the presence of Lord Hughes. Ella Davis was announced as the winner of the Lawson this year in light of her excellent performance throughout the competition. In addition, following the success of Elizabeth Garcia and Tom Herbert in the Inter-Inn Moot, the Inter-Inn Shield will remain on display in the Inn for a third consecutive year. It is hoped in time there will be new trophies for the new cabinet for the annual Davis Prize for Advocacy and for the Magna Carta Moot. Maﬆer Morley

The Harrison Plate presented to the winning team by Roger Harrison

The Chief Justice of Bhutan with the King's Cup presented to the winning team.

INNER TEMPLE EDUCATION & TRAINING

Student Societies

The Taming of the Shrew

Debating Society

Drama Society

This year has been an exciting and busy year for the Inner Temple Debating Society. They have experienced record student membership numbers and have debated a variety of interesting issues for three hours every week since the beginning of October. Every meeting is attended by at least 30 out of the 120 student members, leading to some very lively and entertaining debates! The Society has funded students to compete nearly every week at competitions, both across the UK and internationally, including the World University Debating Championships in India. Inner Temple debaters have done exceptionally well at these competitions: English Speaking Union Mace semifinalists, winners of the Southern Debate Association Tournament and ranked best all-female team from the UK and second best all-female team in the world at the World University Debating Championships in India. A highlight of the year was the Inner Temple Inter-Varsity Debating Competition in January, which was attended by students from as far afield as Scotland, Germany, Austria and Australia. For this event, we produced the first ever Inner Temple Debating Society promotional video, which can be seen on YouTube. Aside from all the fantastic debating experiences, the best bit about the Debating Society is the camaraderie and long-lasting friendships that it has created. The Society owes a big thank you to Master Treasurer for his unfailing support in attending every single Society event. The biggest thank you, however, is owed to Master Morley, whose invaluable advice and support has made the Society and all of its events such a success.

The Drama Society has had a fantastic year, with over 70 students participating in a variety of performances and visits to the theatre. This year’s annual pantomime was Snow White, performed just before Christmas in the Parliament Chamber. The all-singing, all-dancing cast of 16 members wowed the audience with big dance numbers. Taking part in the Museums at Night project allowed the Society to perform a devised piece in the Supreme Court this May, which was a great honour. Excitingly, Supreme Court drawer Isobel Williams contacted the Society during the rehearsal period, requesting to draw the actors at work, which was a fantastic experience. Shakespeare has been a big focus for this year’s Society. Students were invited in conjunction with Shakespeare’s Globe to attend matinee performances of The Merchant of Venice, thanks to Master Christie. The Society then decided that the summer performance should be The Taming of the Shrew, which was performed in the courtyard to a wonderful audience. The Drama Society has had a fantastically friendly, supportive and creative atmosphere this year. The committee would like to send their thanks to all the students who have been involved this year, the Education and Training Department, and Master Christie, Master Pascoe and Master Morley for their invaluable support.

President, Belize Harrison

President, Rachael Pembroke

Mooting Society President, Sharin Cockerton

Over the course of the last year, the Inner Temple Mooting Society committee has volunteered an incredible 2,480 hours organising competitions, workshops and opportunities for Inner Temple members. One of the greatest highlights for the Society this year was the Inner Temple Inter-Varsity Moot, which took place on Sunday 2 February 2014, organised by Matthew Tonnard and William Skjott. Teams from across the country, including Cambridge and Bristol, competed for the honour of the title and the recently donated King of Bhutan Cup. To celebrate this occasion, the Inn welcomed the Lord Chief Justice and other members of the judiciary of Bhutan to present the Cup. The winners were also given a mini-pupillage at Tanfield Chambers, who kindly sponsored the event. As well as hosting both the Inter-Varsity and Lawson Moots at the Inn itself, the committee has entered a number of teams into national and international competitions. These include the Jessup, the largest international mooting competition, and Telders, the most prestigious moot court competition in Europe. The focus for this year’s committee was to ensure mooting is accessible for student members of the Inn. With this in mind, David Tisdall hosted a number of mooting workshops during Hilary term. The workshop series focused on improving key skills including drafting, research and advocacy. In addition, training sessions were held to coincide with both the Lawson and Intervarsity competitions. All sessions were well attended and received very positive feedback and, as such, the Society hopes to continue these in future. The great successes of the last year must be accredited to the commitment shown by all of the Mooting Society committee members. It is also thanks to the guidance and support from senior members of the Inn, including Master Morley, Master Brougham and Master Hodge, as well as from the Education and Training Department.

STUDENT SOCIETIES INNER TEMPLE YEARBOOK 2014–2015

Inner Temple Students' Association President, James Culverwell

This year has been a very strong year for the Inner Temple Students' Association, building on the excellent work carried out by the previous year’s committee. The Society provides opportunities for students to meet a wealth of brilliant and interesting people, from other students to Benchers to the staff of the Inn. The Society’s monthly ‘ITSA Night’ takes place on the third Thursday of each month. ITSA Night was conceived as a way to build a stronger connection between students and the Inn. It provides an opportunity to relax with friends over a few glasses of wine and mingle with senior members of the Inn in a more informal environment, before decamping to a local watering hole. The Society would like to thank all the barristers and judges who have joined us for a drink this year. ITSA began their social calendar with a Christmas drinks party in the Parliament Chamber, which moved to a cocktail bar in Covent Garden. The Society had a great turnout from students with approximately 60 guests enjoying the festivities. The highlight of the year was undoubtedly ITSA’s Burns Night Supper. It has become traditional for the Society to host this celebration, and this year saw the most successful ITSA Burns Night, with over 220 guests. The evening commenced with drinks, followed by a delightful three-course supper interspersed with readings, speeches and a special poem, written and performed by Inner Temple member Joanne Hallam. Supper was concluded with all the guests taking part in a ceilidh to varying degrees of success and style! The year closed with the sold-out ITSA Summer Boat Party. Over 120 students, all in black tie, enjoyed drinks and canapés whilst cruising along the Thames on a wonderful summer’s evening. Organising and delivering these events is always challenging, and the president would like to personally thank his committee and all those who have helped make this one of the most successful years the Society has seen.

INNER TEMPLE EDUCATION & TRAINING

My Journey to the Bar Reflections from Past and Present

Maﬆer Grainger Called to the Bar 1978

read law at university for the sad but simple reason that from 16 years of age onwards, I knew I wanted to be a barrister. One happy effect of my early professional focus was that I had not been long at college (University College, Oxford, invariably known as ‘Univ’) when I got involved in the Oxford University Inner Temple Society. I cannot remember why I chose the Inner Temple rather than any other Inn, save that anyone at Univ with forensic ambitions seemed to belong to Inner. I have a vague notion that I was secretary at one stage and certainly later became president. In those days, one had to do a vast amount of dining before Call - 12 terms of three dinners a term, as I remember. Double-dining was an option when one was in London but given this mountain of obligatory eating, there seemed every reason to get on with it. So, having paid our life sub and having met a formidable Sub-Treasurer, small groups of us organised trips to London at the weekend, combining an afternoon at the theatre with dinner in the Inn. The food and drink were dreadful (how things change) and none of the dinners I attended had any kind of educational element attached, other than what one picked up ‘osmotically’ by simply being there and talking to people. Since dinner was organised with strict apartheid between benchers, barristers and students, most of one’s conversation was with other students: “What stage are you at?”

However, there were also events in Oxford. One very jolly occasion which I recall was a reception in Univ following a talk by Master Monier-Williams (himself a Univ man). His late wife accompanied him: she was a charming former opera singer, an idea which I, as a young lad from the north, found decidedly exotic. In due course, Master Monier-Williams proposed my Call. I don’t recall him giving me much advice, other than telling me that I had joined a profession where it made no sense to hide one’s light under a bushel. Others can judge whether I listened! For students at least, the Inn was altogether less userfriendly in those days. The ultimate in remoteness was Call Night. The idea that one had parents or friends who might want to attend appeared fairly revolutionary. There was a ballot of some kind, which only took place on the day or just before, and the lucky few were then allowed to have their parents in the gallery of Hall where the ceremony took place. My parents trekked down from Tyneside, combining my graduation in Oxford and my Call to the Bar in one trip, but having been unsuccessful in the ballot, they had to spend Call Night waiting for me, in the slightly lugubrious surroundings of The Witness Box pub in Tudor Street. This spirit of benevolent neglect was just the way it was in those days. It has of course long gone (and a good thing too) but at the time it was simply part of what one went through. One may not have acquired much polish in the process but it was presumably hoped to knock off the rougher edges!

JOURNEY TO THE BAR INNER TEMPLE YEARBOOK 2014–2015

Maﬆer Sarah Clarke Called to the Bar 1994

became a barrister by accident. I grew up wanting to be an archaeologist but was persuaded by my favourite school teacher that a law degree would keep my options open. At university, in the summer of my first year, I spent time in Israel on a dig. I squatted in a trench in searing heat, brushing the dirt from a Byzantine temple with a toothbrush. When I returned, I did my first minipupillage in a common law set of chambers in Newcastle. On day one, I sat spellbound as a GBH trial unfolded around me. There was no contest and I was hooked. Two years later, I arrived at the door of the Inner Temple Treasury Office, paid my joining fee and signed my name in the large book. A year later, in October 1994, I was called to the Bar by Master Lawson in the Great Hall of the Inn. He was one of the many Benchers who had given up valuable hours of his limited free time to dine with the students, organise our debates and moots, and take us to the Cumberland Lodge student weekend. We admired them all and wanted to be like them. The Inner Temple is rightly regarded as one of the friendliest and most welcoming Inns. It has a proud tradition of actively encouraging its student members to get to know its barrister members and in due course play a full and active part in the life of the Inn. For me, that came a few years later when, as a junior tenant of a few years’ Call, I was encouraged to become an advocacy trainer for the Inn. I did, and soon found myself training the next generation of members of the Inner Temple - alongside many of the Benchers of the Inn who I had first got to know, admire and learn from as a student, and who I now have the privilege to call friends. Weekends training pupils and new practitioners in advocacy have punctuated my professional and personal life ever since. In between, I have enjoyed many happy years in practice - initially at the criminal Bar, where I learned invaluable lessons prosecuting and defending in back-toback trials, followed by several years working in house at the (then) Financial Services Authority - where I became an insider dealing and regulatory specialist. The last few years have found me back in private practice at Serjeants’ Inn Chambers, where I am lucky enough to have a busy and varied practice, ranging from Article 2 inquests to city crime and regulatory proceedings. I also have two great kids who are remarkably tolerant of the demands of my job. One of them wants to be an archaeologist. I have told him that I know a trench in Israel where there is a half-excavated Byzantine temple… In 2013, my book on insider dealing law was published by OUP. I was also proud to be elected a Bencher of the Inn. When I went for my induction as a new Bencher, I presented the Sub-Treasurer with a copy of my book for the Inn Library (as is the custom) and he presented me with the large book in which I had signed my name all those years ago. My signature has not changed. Nor has the welcome, friendship and mentoring that the Inn continues to provide to its young members. In return, some of them will become the advocacy trainers and Benchers of the future. And so the cycle continues. As it should.

Corinna Thompson Called to the Bar 2014

y first encounter with Inner Temple was when my University Law Society was invited to visit to have a tour and lunch. It was the interaction and outreach with my law school which led me to choosing Inner Temple, as I knew I would be provided with the best opportunities to train and develop. In my final year of university I applied for a BPTC Scholarship, comforted by knowing that all applicants are interviewed. I am grateful to have been awarded an Exhibition Award and a Duke of Edinburgh Scholarship, both of which have been vital to my financial ability to undertake the BPTC. Importantly, the confidence of the Scholarship Committee has been essential in my journey to the Bar, especially during the competitive process of applying for pupillage. The BPTC introductory Weekend at Inner Temple allowed me to meet other students from out-of-London providers. The weekend was fantastic, involving workshops from actors and drama coaches. This was a fun introduction and, importantly, a memorable way to learn about diction, posture and presence, which I have utilised throughout the BPTC. I attended the BPTC Advocacy Day at the Inn in November, which allowed me to receive feedback from specialists early on in my BPTC studies before we had even started advocacy on the BPTC - this enabled me immediately to develop my skills. To have leading practitioners guiding me through the Hampel method of advocacy training has been beneficial in preparing for my BPTC advocacy examinations. I attended the Cumberland Lodge student conference in December, which focused on the topical subject of press regulation. This weekend provided for intensive advocacy practice and training alongside the ability to speak to experts and prominent figures in this area. The weekend also provided the opportunity to interact with members of the Bar in a relaxed and informal setting. We also had the infamous entertainments evening, where I, being from Ireland, subjected everyone to hearing me play tin whistle. This weekend made the process of entering the Bar less daunting, the profession and the people within it being familiar. I have also been part of the Pegasus Access Scheme, which provides work experience for those able students who may encounter difficulties in obtaining mini-pupillages. I was placed with a chambers to which I would normally not have had the confidence to apply directly. The experience was invaluable, and I am grateful for the Inn’s assistance. The financial assistance for travel and accommodation also allowed me to experience the London Bar, somewhere it had been previously been difficult for me to undertake minipupillages due to the expense of travelling and staying. The Inn’s Mentoring Scheme has also proved essential in my journey to the Bar. My mentor has been an incredible source of support during exams and pupillage interviews. The Inn’s events have proved key to gaining knowledge and experience of the Bar, and have played a large role in my journey so far. Without the support and encouragement gained from these events, the hurdles faced when entering such a competitive profession would have been much higher and in some cases insurmountable. I hope to continue to attend the Inn’s events as frequently as on the BPTC to use the invaluable opportunities they provide.

INNER TEMPLE EDUCATION & TRAINING

Call to the Bar T

he Legal Services Act 2007 defines a barrister as “an individual who (a) has been called to the Bar by an Inn of Court, and (b) is not disbarred by order of an Inn of Court”. Call is the conferral of the ‘Degree of the Utter Bar’ and the title ‘Barrister’. The degree is conferred on those who have completed the required academic, vocational and Inn’s qualifying session stages of qualification, and who have satisfied the Inn that they are fit and proper to be called to the Bar. In order for a barrister to be able to practise, he or she must also complete the professional training stage of qualification (pupillage). There are four Call to the Bar ceremonies held each year at Inner Temple.

“ My memories of Call Night will last forever as the night itself exemplified our profession in so many ways. The Treasurer’s address provided those present with the indelible reminder that one quality - integrity - will serve us above all else as we move forward as barristers.” Joshua Kern, called to the Bar, Michaelmas 2013

CALL TO THE BAR INNER TEMPLE YEARBOOK 2014–2015

“ I cannot begin to describe how wonderful it was to sit in Temple Church waiting anxiously for my name to be called. I felt honoured to be joining a profession for which I had immense respect, a profession that I had always dreamed of joining. The most vivid and magical moment remains the glimpse I caught of my mom’s face, gleaming with pride, as I walked to collect my certificate. The sense of achievement is second to none. I will forever treasure the memories of Call Night.” Rayan Imam, called to the Bar, Michaelmas 2013

INNER TEMPLE EDUCATION & TRAINING

Inner Temple Professional Training Having successfully completed the required academic, vocational and Inn’s qualifying session stages of qualification, and having satisfied the Inn that they are fit and proper to be called to the Bar, newly called barristers must successfully complete the professional stage of training known as pupillage in order to complete their qualification as a practising barrister. Once fully qualified, and on becoming a tenant in chambers or employed, practising barristers in their first three years of practice are known as ‘new practitioners’. Only on completion of three years’ practice do they become ‘established practitioners’. At each stage of the journey from pupil to established practitioner and beyond, Inner Temple members are required to undertake compulsory training. Each year, the Inn commits to at least 40 days of advocacy training, taught pro bono by the Inn's pool of experienced advocacy trainers, in order to meet these requirements.

Compulsory Courses for Pupils

efore the start of their second six months of pupillage when they are ‘on their feet’ in court, pupils must successfully complete the following compulsory advocacy training in order to obtain a practising certificate: • Pupils’ Advocacy Course, provided by the Inn. • Practice Management Course, provided by the Inn. • A minimum of 20 hours training in forensic accounts (to be completed by the end of their first three years of practice). Courses are run by external providers and advertised on the Bar Standards Board website. The Inner Temple Pupils’ Advocacy Course is run twice each academic year, commencing in mid-October and mid-January, and consists of the following elements:

“ The Pupils Advocacy Course started with Maﬆer Morley and Maﬆer Sarah Clarke showing us clips of Legally Blonde and the famous ‘I have a dream’ speech by Martin Luther King and ended with us conducting a trial in the awe-inspiring Royal Courts of Justice. It was at times challenging to prepare for the course alongside work in chambers but was undoubtedly one of the most valuable experiences of the pupillage year. It certainly prepared us for getting ‘on our feet’ in the second six. Part of the course involved a full weekend at Wotton House, where we were taught by experienced judges, barristers and speakers from a variety of backgrounds. Their knowledge and expertise proved to be instrumental in the progress we made during the course. It was a fantastic opportunity to engage with other pupils, who have now become great friends, as well as to learn from those who have the kind of careers and court room charisma that junior barristers dream of.” Victoria Hill

• Three evenings at the Inn on trial preparation as well as criminal and civil case analysis. • One Saturday at the Inn on Interlocutory Applications. • One evening at either the Royal Courts of Justice or the Rolls Building, conducting a mock trial. • A three-day residential weekend held at Wotton House in Dorking. This is the core element of the advocacy course, during which the pupils will participate in a Presentational Skills course run by professional actors from LAMDA, sessions on witness handling, opening and closing speeches, and pleas in mitigation. Pupils are video-reviewed throughout the weekend to give them the opportunity to identify and correct any bad habits that may be affecting their overall advocacy performance.

PROFESSIONAL TRAINING INNER TEMPLE YEARBOOK 2014–2015

Advocacy teacher training weekend

Practice Management Course

Teacher Training Weekend

Held in January for the entire year’s intake of pupils, this one-day course offers practical guidance to assist pupils with how to run their practice, covering topics such as ethics, marketing and financial management, with a talk from experts in these fields. It also offers participants the opportunity to ask judges and new practitioners questions on what to expect from first days in court, as well as a session with clerks and solicitors advising on what they expect from pupils and how to survive in chambers.

Inner Temple also runs a course in October each year for members interested in becoming advocacy trainers. A full day on the Saturday gives potential new trainers the opportunity to learn about and put the Hampel method of advocacy training into practice on willing BPTC student volunteers, followed by a half-day on the Sunday, in which they are assessed and graded by current teacher trainers.

New Practitioners’ Programme In the first three years of tenancy or employment, new practitioners are required to complete 45 hours of continuing professional development (CPD), including at least nine hours of advocacy training and three hours of ethics training. “ The New Practitioners’ Advocacy & Ethics Weekend provided an excellent opportunity to enhance further the skills that I have accumulated in practice to date. Most useful was the attendance of medical experts for a mock conference and the task of subsequent cross-examination of the doctors. It gave me the chance, whilst under the supervision of experienced barristers and judges, to hone the skills needed to bridge the gap between the cases I have been doing in my first year or so at the Bar and the more complicated matters which are to come. The weekend was informative and practically helpful but with plenty of time to enjoy the food, wine and speeches in the evenings in the company of other junior barristers, all in the pleasant surroundings of Wotton House.”

“ I entered my weekend of teacher training with utter fear of being exposed as a hopeless advocate and being laughed out of the Inn. Even the delightful breakfast pastries couldn’t calm my frayed nerves. If only I had known then that my fears were unfounded, I could have had that second pastry after all. After a helpful weekend of intense training and numerous practice runs, I actually started to feel like I could get the hand of this teaching business. When the letter arrived, it confirmed that I was to be let loose on the new practitioners, those poor unsuspecting fools. I was chanting the Hampel method to myself like a mantra on the coach down to Wotton House for the NP Advocacy Weekend. And what a fabulous weekend it was. All my fellow trainers were unconditionally supportive, welcoming and frankly immense fun to spend the weekend around. Teaching was hard work but incredibly rewarding, especially observing the improvements of the trainees over the course of a few hours. There was great camaraderie amongst the teachers and trainees…that is until the Giant Jenga set came out after dinner, and then it was every man and woman for themselves…I genuinely had a fantastic weekend of teaching and, dare I say it, I can’t wait for the next one.” Rehana Azib

Julia Townend

INNER TEMPLE EDUCATION & TRAINING

Practise What We Preach by Maﬆer Ayling

t is true that there are some excellent and informative CPD courses at the end of every year. It is possible to collect your points whilst trying to assimilate rafts of cases and notes, delivered to you by experts in the field. How much of it you retain may be open for debate. In an unprecedented and innovative course Master Ayling however, the Inner Temple ran an Advocacy Training Day for Barristers Working with Vulnerable Witnesses on 23 November 2013, where the training was interactive and participatory. The treatment of ‘vulnerable witnesses’ during the court process has relatively recently become a topic which has attracted considerable - adverse - media comment, most of it directed towards the nature and style of cross-examination. In cases involving a child or young witness, advocates have always been aware of the need to simplify questions. The use of intermediaries for both child and adult witnesses (including defendants) has become a regular feature in trials, particularly criminal ones. Witnesses to violent and/or traumatic events (who have no communication issues but have been severely affected by this experience) may be deemed vulnerable for the purposes of a trial. It should be emphasised that such witnesses are not confined to criminal cases; family, employment and catastrophic injury cases - particularly after a painful event, such as an accident followed by hospitalisation

- all involve vulnerable people. This is no longer a specialist area but one that pervades the court system. In the light of the criticism that was being levelled at the Bar and judiciary, the Advocacy Training Council (ATC) produced a report on vulnerable witnesses. The ATC called for the development of toolkits in Raising the Bar but did not at first develop them. They then funded the development of the website the Advocate’s Gateway and have actively promoted it ever since. It has been a great success amongst the Bar and the judiciary - www.theadvocatesgateway.org/ toolkits. The Criminal Bar Association (CBA) produced a DVD (A Question of Practice), also available on the Advocate’s Gateway, which demonstrates the radical change in the conduct of cross-examination of vulnerable witnesses. Examples of that change are the prohibitions in cross-examination on asking leading questions, or ‘tag’ questions, or ‘piggy-back’ questions. Moreover, the requirement to ‘put the case’ to certain categories of vulnerable witnesses (such as young children) is not just deemed unnecessary but positively forbidden. Most barristers cross-examine by saying, for example, ‘You like John, don’t you?’ It is the addition of ‘don’t you?’ that makes it a tag question. More confusing: ‘you went upstairs, didn’t you?’ Again, it is the words ‘didn’t you?’ that make the question confusing for the vulnerable. Why is it confusing? Because the witness, who has difficulty understanding, thinks ‘didn’t you?’ means ‘I didn’t’. Since this type of question has been the mainstay of cross-examination for centuries, it is difficult to relearn. Learning the theory of how to cross-examine a vulnerable witness is one thing. At Inner Temple, participants put the theory into effect by cross-examining a vulnerable witness (played by a professional actor) and receiving feedback on

“ I found this to be a most valuable seminar. It was stimulating and provoking. I will use the technique, the Advocate’s Gateway material and my notes for cross-examination in all cases where vulnerable witnesses appear.” Delegate

PRACTISE WHAT WE PREACH INNER TEMPLE YEARBOOK 2014–2015

their skills from the Inn’s experienced advocacy trainers. Members of the Bar had written a mock trial problem, including statements, admissions and instructions. The object was to rethink the usual tenets of cross-examination, such as putting the case and tag questions, and follow the new rules. No leading questions, no tag questions, no piggy-back questions. In small groups, participants were required to crossexamine the professional actor for 15 minutes, using the case materials provided. The actor had been briefed to behave in the way a witness suffering from ADHD would react to cross-examination. The advocate was then assessed by trainers using the Hampel method of advocacy training. Pupils and new practitioners are familiar with this sort of critique. Experienced practitioners are not. The first effort, by most, was littered with the tag question. It is not easy! By the end of the day, the majority of the advocates had mastered the method and were keen to repeat their efforts. The actors were extraordinarily convincing. One actor reduced a skilled and experienced trainer close to tears. If you doubt the method, Master Hallett and Maura McGowan QC spoke to delegates at the event before the training, endorsing and supporting the method. Master Hallett (now Vice-President of the Court of Appeal Criminal Division and Head of the Judicial College, and in the past an extremely experienced criminal advocate) stated that she did not understand where the need to call a complainant a liar had come from. It was, in most cases, unnecessary. Simple and short questions were required. Putting the case may be achieved in other ways. Master Lynch, another experienced advocate in the field, provided practical advice and demonstrated, with Master Sarah Clarke, how crossexamination should, and should not, be done. In addition to participants, observers were present from Barnardo’s and the Jeffrey Review of the Provision of Independent Criminal Advocacy. It is important to note that the objective of such a change in cross-examination technique is not to alter in any way the burden and standard of proof. It is designed to deal properly with witnesses who are truly vulnerable. We support what was said by Lord Judge in his Bar Council Annual Law Reform Lecture on 21 November 2013, The Evidence of Child Victims: the Next Stage:

“ The objective of the criminal trial is that justice should be done, that the innocent should be acquitted, and that so far as possible evidence proving that the guilty defendant is indeed guilty should be produced to enable the guilty defendant to consider his plea, and if he persists in his denial, available to prove his guilt. Our system is adversarial. It depends on the proposition that the results of the adversarial system will produce justice. But we have to face the reality that if the adversarial system does not produce justice, that is justice to everyone involved in the process, it will have to be re-examined, and it should be re-examined. If it fails to do justice then the system requires to be changed.” The Inner Temple and ATC will be running the course again in autumn 2014. Be ready to book your place. Maﬆer Ayling

Article reproduced with the kind permission of Counsel magazine

INNER TEMPLE EDUCATION & TRAINING

Advocacy and Pupillage Applications Day This course was aimed at student members who had successfully completed the BPTC, were in search of pupillage, and had already had at least one pupillage interview. Participants were required to submit an example pupillage application and legal CV in advance of the course. On the day itself, participants had the opportunity to practise their advocacy skills, take part in a mock pupillage interview and have their pupillage applications and legal CVs reviewed on a one-to-one basis. Trainers this year included current pupils, new tenants and more established practitioners. The support and advice offered at the session was greatly appreciated by all those who attended. Thanks are due to all trainers who assisted with the session and, in particular, to Saul Herman who led the event. “ For many of us stuck in the hinterland between the end of the BPTC and obtaining pupillage, it can feel a bit lonely. The support networks built up during the BPTC and at qualifying sessions at the Inn can feel far away as pupillage applications are written at weekends and, hurriedly, after work. That is why the recent Advocacy and Pupillage Applications Day held at the Inn proved so valuable. The day was split up into three sessions: an advocacy exercise, a review of your pupillage application and a mock interview. With our advocacy exercise, we were given two options: criminal or civil. With the civil exercise, we had to prepare a closing speech. Although I’d built up some advocacy experience since completing the BPTC, it was great to have my skills assessed and to see how I could improve. The application review was also quite revealing. One point that struck home was that you are the only one who can sell yourself. No matter how glittering your CV is, just listing your achievements isn’t enough to catch the eye of a sifter. You have to marshal those achievements to create a compelling argument for why you should be a chambers’ pupil. The mock interview that followed was reassuring. Like everyone else attending, I’d managed to get interviews but fall at the last hurdle. To hear that my interview technique wasn’t terrible, as I’d feared, lifted a weight off my shoulders. I think I write for all the attendees when I extend my thanks to all those responsible for organising and participating in the event. The barristers didn’t confine themselves to the sessions but spoke with us during breaks and over lunch. Two even grabbed a pint with us afterwards! For all those Inner Temple members still seeking pupillage, I can’t recommend this event enough.” Andrew Ball

Review of a legal CV

Pegasus Scholarships Trust The Trust’s Scholarship Scheme is open to barristers of all four Inns of Court who are tenants or employed barristers with up to five years’ practice as a barrister (not including pupillage). They may apply for funding to work as lawyers in other common law jurisdictions and the European Union for between 6–12 weeks. A host law firm assists the scholar to find accommodation and provides expenses. There are up to 12 scholarships annually to the following countries: Dubai, Bermuda, Hong Kong, New Zealand, Singapore, USA and countries of the EU. The Trust also welcomes the opportunity to support scholars in placements they have personally arranged. Further details may be obtained from the Scholarships and Students Manager (who is also secretary to the Pegasus Scholarship Trust). Closing date for applications: 30 November in each year.

Paris Bar Exchange The Bar of Paris with the Paris Bar School (EFB) offers a stage to up to four barristers who will be based in an avocat’s offices (preferably specialising in the barrister’s field of practice) for the month of September. As well as doing their stage with the avocat, they will participate in the EFB’s vocational courses, make court visits, meet young avocats and conduct a mock trial in the Palais de Justice before a French judge. Candidates for the exchange programme (who must speak fluent French) should apply not later than the middle of May in each year by lettre de motivation in French to: Piers Gardner, c/o the Secretary to the Pegasus Trust, Inner Temple.

JUNIOR BAR ASSOCIATION INNER TEMPLE YEARBOOK 2014–2015

Junior Bar Association by Saul Herman, President of the Junior Bar Association

JBA Halloween Quiz

t was a busy year for the Inner Temple JBA. Our first event was the popular Halloween quiz. 120 members of the Inn attended, many in even sillier dress than court usually demands, whilst Alastair Hodge kept a masterly control of the questions. We’re grateful to the enthusiastic team from Silver Levene Accountants who generously sponsored the event. It is a first for the JBA to secure financial sponsorship of an event, an achievement we’re sure will be repeated in future years. That support also meant money was put aside for a Christmas celebration. On a wintry Tuesday, junior members went to Brookes Brothers bar for a spectacular buffet and drinks. Criminal juniors mixed with family practitioners, members of the employed Bar and others to swap stories, business cards and forget the year of cuts gone by. The first half of the year’s events were principally social, whilst the second half saw socialising mixed with legal events pitched at all levels of the junior Bar. At the student level, we were pleased again to support the Inn’s student societies, providing book voucher prizes and volunteers for both the Lawson Moot and the Rawlinson Cup. A JBA event was then held for current pupils. There were short talks from junior practitioners on seeking tenancy before the group mingled. This allowed pupils’ questions which they might have feared to ask in their own chambers - to be kept strictly under ‘Chatham House’ rules. Later in the year, a select group of junior tenants had a behindthe-scenes tour of the Royal Courts of Justice by one of the clerks. The tour concluded with Master Floyd speaking

about his time so far in the Court and on the advocacy skills needed to impress when appearing there. We hope to organise a second tour, such was the demand for places. The year concluded with a lecture on terrorism and international law, with Master Morley and Peter Carter QC generously giving their time to speak to us. Master Morley gave a frank assessment of the work of the Special Tribunal for Lebanon. Members were left amusedly wondering whether they should be lobbying for a more financially prudent approach to international law or applying for a job at the Tribunal. Peter Carter QC’s address was a detailed look at fighting terrorism, referencing events from the Gunpowder Plot to 7/7, making a compelling case for the promotion of the rule of law over the temptations of the state’s capacity for brute force. Looking back on a successful year, we remember that the JBA exists to support the Inn as a whole. We have the pleasurable task of doing so by running the best social and legal events that we can. We hope that those members who enjoyed this year’s events will in turn support the Inn in other ways as well. The Education and Training Department, and others, are always ready for new volunteers, and we hope the junior Bar will continue to support those events. My thanks go to all those who spoke to us or helped out, to everyone in the Education and Training Department, and to all members of the JBA committee for their hard work throughout the year. Saul Herman

INNER TEMPLE EDUCATION & TRAINING

Academic Fellows T

he Inner Temple’s Academic Fellowship Scheme was launched in 2010 with the aim of building stronger ties with legal academics at universities across England and Wales. It aims to recognise the outstanding contribution of early to mid-career academics in legal teaching and research. Academic Fellows consistently represent modern legal research of the highest calibre and play a significant role in the education of future legal practitioners. These honorary posts last for three years, with 12 Academic Fellows in any given year. The Inn’s Academic Fellows have significantly contributed to the Inn during the course of this year in a variety of different ways. For example, as part of the scheme, several Academic Fellows have given lectures at the Inn on a wide range of topics, such as religion and law, family law post-LASPO and media law and libel. One question, posed by our first cohort of Fellows who reached the end of their tenure last year, was how to sustain these important relationships outside of the scheme. The Executive Committee subsequently approved a new category of membership: Associate Academic Fellow. Fellows who have made an outstanding contribution to the Inn will, on completion of their tenure, be made Associates, and we very much hope they will continue to work closely with the Inn. The next cohort of Academic Fellows will be selected over the course of the summer and announced in September 2014.

Academic Fellows 2013 – 2016 Our newest Academic Fellows are already positively contributing to life at the Inn.

Dr Maksymilian Del Mar Dr Maksymilian Del Mar is Senior Lecturer in Law and Philosophy and Director of the Centre for Law and Society in a Global Context at Queen Mary University of London. He teaches contract law, jurisprudence and legal theory and is the staff liaison for the Queen Mary Student Bar Society. Dr Del Mar’s main research interests are in the field

of legal theory, and he has been published in a large number of related national and international journals. He has a particular interest in common law legal reasoning and its teaching, and last year ran a project funded by the Westfield Fund for Enhancing Student Experience on how certain legal reasoning skills can be developed with the aid of visual and dramatic arts. He has recently been awarded a Leverhulme Research Fellowship for research on the life and work of the late Sir Neil MacCormick. Dr Del Mar completed two undergraduate degrees at the University of Queensland, Australia, one in philosophy and literature, and the other in law. He also holds two doctorates, one in law from the University of Edinburgh and one in the social sciences from the University of Lausanne, Switzerland. Before embarking on academic research, he was an Associate to the Hon Justice Margaret White at the Supreme Court of Queensland, and he qualified and practised as a solicitor in Brisbane. He joined Queen Mary in July 2011. Dr Del Mar is currently organising an event with the Inner Temple Historical Society on Shakespeare and judicial rhetoric, which is due to take place in 2015.

Dr James Goudkamp Dr James Goudkamp is a Fellow of Keble College, Oxford, and a University Lecturer in the Oxford Law Faculty. He completed undergraduate degrees in science and law at the University of Wollongong, Australia, and postgraduate qualifications, including a doctorate, at Magdalen College, Oxford. He began his academic career as an Associate Lecturer in Law at the University of Wollongong and then worked as an Associate to the Hon Justice Michael Kirby AC CMG of the High Court of Australia. He was then a Lecturer in Law at St Hilda’s College, Oxford; the Shaw Foundation Junior Research Fellow in Law at Jesus College, Oxford; and a Fellow of Balliol College, Oxford; before being appointed to his current post in 2013. Dr Goudkamp’s main area of research is the law of obligations, particularly tort law, although he has also written on topics in civil procedure and evidence. He has recently published Tort Law Defences (Hart Publishing, 2013) and is a co-editor of Torts in Commercial Law (Thomson, 2011) (with James Edelman and Simone Degeling). He is the author of approximately 40 articles and book chapters. He will be one of the editors of the next

ACADEMIC FELLOWS INNER TEMPLE YEARBOOK 2014–2015

edition of Winfield & Jolowicz on Tort (with Edwin Peel). James holds or has held visiting positions at Harvard Law School, the National University of Singapore, the University of Western Australia and the University of Wollongong. He is the Mooting Co-ordinator at Oxford. Dr Goudkamp has been highly involved in the Inn’s Dinners for Legal Academics this year, helping the Inn engage with academics from across the country.

Academic Fellows 2012 – 2015

Dr Barbara Lauriat

Dr des Eddie Bruce-Jones, Lecturer at Birkbeck College School of Law

Dr Barbara Lauriat is Lecturer in Law at King’s College London, where she teaches intellectual property law subjects. Her research is focused on the history of copyright, the relationship between copyright and political ideologies, and the influence of creators on legal developments. In addition to her academic writing, she has published journalistic articles in The Times and has appeared on television and radio. Dr Lauriat undertook her undergraduate and Juris Doctor degrees at Boston University before completing her doctorate at Balliol College, Oxford. She was a law clerk to the New Hampshire Superior Court and spent time as a visiting scholar at the University of British Columbia. While completing her doctorate, she was Career Development Fellow in Intellectual Property Law in the Faculty of Law and St Catherine’s College, Oxford. Barbara is spending autumn 2013 visiting as a Global Fellow at New York University School of Law. In conjunction with both King’s College London and the Inner Temple, Dr Lauriat ran a successful IP speakeasy this year, which was enjoyed by students and practitioners alike.

Dr David Lowe Dr David Lowe is Principal Lecturer at Liverpool John Moores University. Dr Lowe’s research areas are in terrorism, policing, criminal law and human rights. He is co-authoring Examining Political Violence: Studies in Terrorism, Counterterrorism and Internal War (with Dilip Das and Austin Turk, 2013). He has written numerous book chapters and reviews. He is currently making arrangements for EU funding into a research project examining the funding of terrorist activity to commence in 2014. Dr Lowe was a police officer with the Merseyside Police in the Criminal Investigations Department, mainly in Special Branch’s Counter-Terrorism Unit. Whilst a detective, he completed his BA and LLB at Liverpool John Moores University before undertaking an MPhil at the University of Liverpool. He was appointed as a Principal Lecturer at LJMU in 2007 and completed his PhD there in 2010. Dr David Lowe is currently organising a debate in Liverpool, focussing on privacy and information law in the era of terrorism, which will be supported by the Inner Temple.

Dr Jo Braithwaite, Lecturer at London School of Economics and Political Science

Per Laleng, Lecturer at the University of Kent Dr Paul Wragg, Lecturer at the University of Leeds

Academic Fellows 2011 – 2014 Dr Ronan McCrea, Lecturer in Law at University College London Joanna Miles, Senior Lecturer in Law at the University of Cambridge Dr Andrew Scott, Senior Lecturer at the London School of Economics Professor Christian Twigg-Flesner, Professor of Commercial Law at the University of Hull

Associate Academic Fellows James Lee, Senior Lecturer, King’s College, London Dr Iyiola Solanke, Senior Lecturer at the University of Leeds Professor Andrew Francis, Professor in Law at Keele University Dr Catherine MacKenzie, University Lecturer in Law and Fellow of Selwyn College, Cambridge

INNER TEMPLEâ&#x20AC;&#x201A; EDUCATION & TRAINING

The Employed Bar Forum by MaďŹ&#x2020;er Robinson

he Employed Bar now makes up a fifth of the Bar and is steadily growing, as both legal and corporate firms worldwide seek out the skills of barristers trained in England and Wales. The Inner Temple alone has 580 members who are in employed practice. While half of these are employed by the Crown Prosecution Service, Government Legal Service or HM Courts & Tribunals Service, the others can be found in a wide range of organisations across the country. Like all segments of the legal profession, the employed Bar is therefore an incredibly broad church. The issues that face the CPS on a daily basis will not be the same as those confronting in-house counsel at a corporate firm. That said, employed barristers remain part of the same profession, with all the ethical obligations that it entails. The Inner Temple surveyed its employed barristers in 2013 to assess ways in which the Inn could better engage with them. In that survey, 84 per cent of respondents noted they would feel a closer affiliation to the Inn if there were

more employed-focused events, activities or communication. We learned through this that there was a real gap in the opportunities that allowed our employed members to meet and discuss relevant issues. We also learned that many employed barristers were looking for more tailored training. After considering this feedback in my role as Master of the Employed Bar, I brought together a steering group to consider proposals. This group formed the Employed Bar Forum, which seeks to bring together employed barristers for lectures and workshops, which they have indicated would be worthwhile for their professional development. The Forum consists of Master Levitt (Mishcon de Reya and formerly with the CPS), Sarah Kohl (Government Legal Service), James Kitching (Fried Frank), Angela Patrick (JUSTICE) and Ed Winters (Ruffers LLP) and myself. I would like to thank my fellow Steering Group members for all of their help and diligence in getting this initiative off the ground.

Judicial Diversity and the Employed Bar

Next Steps

In April 2014, we held our inaugural event on the topic of judicial careers for employed barristers. Lord Thomas, Lord Chief Justice of England and Wales, gave the introductory remarks followed by a panel comprising Christopher Stephens, the Chairman of the Judicial Appointments Commission; District Judge David Robinson and Deputy District Judge Madeleine Grundy. Mr Stephens spoke about the work of the JAC and their initiatives in recent years to recruit a more diverse judiciary, while Judges Robinson and Grundy discussed their routes to the judiciary and some resources and experiences that were helpful in putting forward a successful application. Despite making up nearly 20 per cent of the profession, there are only 19 employed barristers who are Queenâ&#x20AC;&#x2122;s Counsel and few in the ranks of the judiciary. The Employed Bar is under-represented in application rates for both. This means that the judiciary are losing out on the benefits that employed barristers can bring. The Self-employed and Employed Bar are much less distinct than they once were, with barristers moving between the two throughout their careers, especially now that a barrister can hold dual capacity. When considering judicial diversity, we must consider the demographics of the legal profession from which it recruits. In the Employed Bar, over 15 per cent are from ethnic minorities and 46 per cent are women (as compared to 11 per cent and 32 per cent respectively at the Self-employed Bar). 1.3 per cent of employed barristers have registered a disability, compared with 0.4per cent at the Self-employed Bar. A recent report from the Bar Standards Board found that there were significantly more ethnic minority and female applicants to the Bar course aspiring to join the Employed Bar.

The Employed Bar Forum proposes to run three events a year. Current proposals centre on management skills and continuing professional development on written advocacy. We will continue to survey our employed members to ensure that the events are relevant for them and will work with organisations such as BACFI (Bar Association for Commerce, Finance and Industry) to create a complementary training programme.

Master Robinson

INNER TEMPLE

A Cauldron of Change: Ending Sexual Violence in Conflict

Foreign & Commonwealth Office

by Estelle Dehon, Barrister, Cornerstone Barristers

Angelina Jolie and former Foreign Secretary The Rt Hon William Hague

n an article penned in 1993, entitled ‘Crimes of War, Crimes of Peace’, Catherine MacKinnon observed: “Law does not grow by syllogistic compulsion; it is pushed by the social logic of domination and challenge to domination, forged in the interaction of change and resistance to change.” From 10-13 June 2014, London saw a unique event which challenged domination, and which brought more than 70 ministers from 123 countries together with experts in sexual violence in armed conflict, in a cauldron of change. The Global Summit to End Sexual Violence in Conflict, convened by William Hague and Angelina Jolie, was the first time that the international community has acknowledged in such a public way that sexual violence in armed conflict is an unacceptable crime, often shrouded in a culture of taboo and often characterised by impunity. The focus of the summit was, however, on causing a lasting and profound shift in global attitudes towards sexual violence, setting out practical ways in which wartime rape and other sexual violence can be addressed. Its aim was to send a clear message that sexual violence is not a lesser crime: it is an atrocity of the first order and there must be no safe haven for perpetrators anywhere. In some important ways, that aim was met at the summit itself, as successive foreign ministers took to the podium and acknowledged the illegal use of sexual violence as a tool of conflict. Ministers from countries as diverse as Jordan, Liberia, Mexico and the United States all spoke openly about addressing sexual violence in conflict and accepted the imperative for accountability and the need to change the gendered stereotypes that underlie and perpetuate the use of sexual violence as a weapon. Significantly, the participants at the summit recognised that boys and men are victims of sexual violence in armed

conflict, and a very moving session was convened by Zainab Hawa Bangura, the Under-Secretary-General of the UN, at which a male survivor of rape during the Bosnian conflict spoke of his experiences, both during the conflict and afterwards, when he was denied access to healthcare and to the resources required to rebuild his and his family’s lives. Evidence relating to the conflicts currently occurring in Uganda and the Democratic Republic of Congo was also discussed, as it shows that one in three men and two in three women displaced by the conflict have been subjected to sexual violence. The summit also saw the launch of an International Protocol on the Documentation and Investigation of Sexual Violence in Armed Conflict, produced in collaboration with a number of gender and sexual violence experts. The protocol is designed as a practical tool on how to obtain and document evidence for the key elements of sexual violence in conflict, as the bedrock for future prosecutions. Although its focus is sexual violence as a crime under international law, it may ripple out to domestic jurisdictions, as it can easily be used for capacity-building in national and local law enforcement. The clarion call of the Global Summit was encapsulated in the Statement of Action released at the end of proceedings, which declared that rape and sexual violence are not an inevitable consequence of war; that the shame of these crimes should be firmly on those who commit them, not their victims; and that those at the summit dedicated themselves to work together, in a spirit of unswerving resolve, to end the use of rape and sexual violence in conflicts around the world. Estelle Dehon

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INNER TEMPLE PEGASUS SCHOLARSHIP

Washington DC

Gemma Meredith Davies, Parklane Plowden Chambers

n October 2013, I was fortunate enough to be awarded a Pegasus Scholarship, primarily based in Washington, DC. Having been called to the New York State Bar in 2010, I was interested to see how the practice of law played out ‘on the ground’. During my six-week stay, the American Inns of Court provided a remarkable placement programme, diverse in subject matter and nature, greatly surpassing my expectations. Benjamin Cardozo, Supreme Court Justice, once stated, “History, in illuminating the past, illuminates the present, and in illuminating the present, illuminates the future.” The placement committee had certainly taken these wise words to heart, and I was taken on a journey of the practice of law with a visit to ‘the birthplace of America’, Independence Hall in Philadelphia, to the heart of the Freedom Trail in Boston and onto the Supreme Court of the United States, a building of dignity and gravitas in the heart of Capitol Hill. One of the real highlights of the programme came in my first week in Washington, when I had the opportunity to hear oral arguments at the Supreme Court. As I walked up the steps of this magnificent building and into the court room, I gathered the sense of solemn responsibility on the part of the advocates and justices that (former Supreme Court Justice) Hugo Lafayette Black described, to, “translate into living law and to maintain the constitutional shield for the benefit of every human being”. Prior to the oral argument, I was afforded the opportunity to discuss the case, involving the Fifth Amendment right not to be compelled to testify against oneself, with a distinguished Supreme Court attorney and to witness a run through of the argument on behalf of the appellant at a moot at Georgetown Law. Somewhat surprisingly, the attorney was met by a much harsher tribunal in the university professors than the Justices themselves! I was surprised to hear of the breadth of subject matter that Supreme Court advocates deal with as part of their practice. Their remarkable skill lies in handling complex subject matter with brevity and flair, rather

than focusing on one area of legal practice. Their talent is evident both in written briefs filed and through the strict time limits imposed during oral arguments, each side typically having 30 minutes with a constant flow of judicial intervention. I noted the much greater emphasis on written advocacy at differing levels of the legal system in the US as compared with the position in the UK. The Supreme Court experience was finished off in true style with the American Inns of Court ‘Celebration of Excellence’, a dinner hosted by Justice Thomas in the Supreme Court building itself. Being a family practitioner, dealing with financial remedy and child law matters, I also thoroughly enjoyed shadowing a judge in the District Court of DC and the Fairfax County Circuit Court in divorce and contact proceedings and discussing principles, which are applied in public law children matters. Proceedings overall seemed much more parent focused. I spoke of the 26 week timetable in public law matters with an experienced District Judge in Washington, a far cry from the mandatory one year period in DC, during which no orders can be made which permanently sever parental ties, the emphasis being on ploughing in a vast array of rehabilitative services and treatment for parents of a child with social care involvement. The debate was a fascinating one, with both sides respectful of the merits and shortfalls of each other’s systems. Aside from the valuable legal opportunity to meet with and shadow eminent members of the profession and judiciary, I was also exposed to the world of American politics, the highlight of which was spending time in a Senator’s office. I have to admit being a little star-struck on seeing President Obama at the Memorial Day service at Arlington! I am extremely grateful to the Pegasus Trust for funding my placement, which has enhanced both my legal and personal development, and has provided me with fond and lasting memories. Gemma Meredith Davies

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INNER TEMPLE PEGASUS SCHOLARSHIP

Wellington, New Zealand Thomas Daniel, 2 Bedford Row

or the last three months of 2013, I was fortunate to leave behind the cruel British winter in favour of spending three months in Wellington, New Zealand. I was placed with Luke, Cunningham & Clere (LCC), which is the office of the Crown Solicitor for Wellington. As such, the firm is responsible for all of the criminal prosecutions in the region. During my time at LCC, I worked on a wide variety of cases, both from a familiar criminal perspective and also in relation to a large civil claim arising out of the global financial crisis. The staff at LCC immediately made me feel like one of the team, and I was able to assist by drafting paperwork and helping the more senior advocates with some of their trial preparation, before appearing as their junior in the trial. I was completely taken aback at the level of generosity and kindness shown to me whilst I was visiting. The Supreme Court Justices even hosted a drinks reception for the visiting

and I was constantly astounded as we drove around each corner and a new spectacular view appeared. The highlights of these trips included taking a flying lesson around Kapiti Island; trekking through the beautiful Abel Tasman National Park; skydiving and paragliding in the party town that is Queenstown; riding the jet boat through the rapids in Lake Taupo; wine tasting in the Wairarapa; and renting a holiday home in the Hawke’s Bay with the other juniors at LCC. I owe special thanks to Kathy and Jono for putting me up in their flat right on Wellington’s Oriental Parade. When Kathy (a junior at LCC) emailed to offer me their spare room, she attached a link to the Google street view of their place. As I panned around and saw the stunning view across Wellington Harbour from their front door, I have to say I thought it was a wind-up. It puts my view of the opposing ex-council block in north London to shame!

“ They managed to arrange for me to appear as a junior in the Court of Appeal and to assist with drafting submissions that ultimately went before the Supreme Court.”

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Pegasus Scholars at the Supreme Court, before inviting us back to watch the court in session. At the weekends, apart from sampling Wellington’s nightlife, the once-in-a-lifetime nature of this trip meant that little time was wasted as we packed the car up and went on adventures to different parts of the country. The scenery in New Zealand means it is a country made for taking road trips,

To broaden my experience, Tim Smith (a member of the Pegasus Committee and partner at LCC) arranged for me to spend the last few weeks of my stay at Crown Law, which is a unique entity that, amongst other things, represents the Crown on criminal appeals. As with everyone I encountered, the staff at Crown Law were extremely welcoming, and I was fortunate that they managed to arrange for me to appear as a junior in the Court of Appeal and to assist with drafting submissions that ultimately went before the Supreme Court. I am immensely grateful to the Pegasus Trust for allowing me to travel to such a wonderful country and to experience their legal system first-hand. It is certainly an experience I shall never forget and one from which I learned a tremendous amount. Thomas Daniel

PEGASUS SCHOLARSHIP INNER TEMPLE

Los Angeles

Andrew Powell, 4 Paper Buildings

or my Pegasus Scholarship, I spent three months at Vorzimer Masserman, a Los Angeles-based law firm specialising in surrogacy and fertility law. Whilst commercial surrogacy remains unlawful in the UK, reforms to the law in California have facilitated a steady increase in surrogacy cases. As a family law practitioner, I was keen to see how commercial surrogacy operates within a regulated model. Vorzimer Masserman is one of California’s leading surrogacy firms, so it was the ideal place to be a Pegasus Scholar interested in surrogacy law. The California Family Code Section 7960, enacted last year, codified Californian surrogacy law. Amongst other things, the statute contains a number of safeguards to protect the parties to a surrogacy arrangement, such as requiring both parties to be represented by independent lawyers. The placement itself was a bit like an extended mini pupillage. I shadowed lawyers at the firm in their conferences with clients; this allowed me to get first hand experience of how surrogacy arrangements were approached. Consultations with intended parents (IPs) were particularly illuminating in providing an overview. The legal process is made up of two major steps: first, the contractual phase, and afterwards, securing parental rights. The first phase is largely transactional and broken down into a number of stages, including matching the IPs with a surrogate

pregnancy). The financial component of the agreement is dictated largely by the agency. Once the contract has been considered and agreed by the IPs, it is then sent to the lawyers representing the surrogate mother to be agreed. The scenario of a surrogate not wanting to relinquish custody of the new born to the intended parents, from my observations and discussions with lawyers in California are few and far between. The reality, it seems, is that when those situations do arise, they tend to arise where individuals have entered into informal arrangements, often, but not exclusively, with friends and without the assistance of legal advice. My observations of surrogacy in California were quite positive and I saw no evidence of exploitation. In all of the cases I saw, the parties had freely and with the benefit of legal advice entered into surrogacy arrangements. It has, however, highlighted the lack of support that an unregulated system can engender. I thoroughly enjoyed my time at Vorzimer Masserman. I have been fortunate to gain an insight into the law related to surrogacy and fertility law in California from the leading lawyers in this field. More importantly, I have made new friends and I shall miss them all terribly. On my way back to the UK, I stopped off in Boston and met academics at Harvard Law School to discuss global

“ My observations of surrogacy in California were quite positive and I saw no evidence of exploitation. In all of the cases I saw, the parties had freely and with the benefit of legal advice entered into surrogacy arrangements.” mother, a process undertaken by a certified surrogacy agency. The second phase was more procedural and involved me attending court for a pre-birth order, where a judge hands down a short judgment terminating the surrogate’s parental rights (and that of her husband if she is married) and affording the intended parents with parental rights. I also assisted the junior lawyers at the firm draft surrogacy agreements. Each agreement varies depending on the particular needs of the parties involved and may stipulate certain requirements (for example, refraining from particular activities during the final trimester of

surrogacy issues. This opened up the surrogacy debate on a wider socio-legal scale asking, for example, should there be a greater emphasis on international adoption over international surrogacy? And, if commercial surrogacy arrangements are lawful in some US states, why shouldn’t commercial aspects in international adoption also be permitted? I highly recommend junior members of the Bar applying for the Pegasus Scholarship. I can’t thank Inner Temple enough; it has been an invaluable experience. Andrew Powell

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INNER TEMPLE PEGASUS SCHOLARSHIP

Bermuda

Arron Walthall, Cobden House Chambers

Pegasus Scholarship is a wonderful opportunity to visit an exciting part of the world and work in a different legal system, so when I was offered the chance to spend six weeks in Bermuda with Appleby – one of the world’s largest providers of offshore legal services – I could not have been happier. Bermuda is unlike anywhere else I have ever visited. After I arrived at its small airport (where a painting of the Queen hangs in the arrival lounge), I was met by Mrs Olney Bean, who has won awards for being the best taxi driver on the island and often collects visitors for Appleby. She was extremely friendly, and I quickly forgave the fact that she was an avid Manchester United supporter. The taxi ride gave me my first taste of Bermuda, a strikingly beautiful island, with views of the ocean around every corner (it is only a mile wide after all). It was packed with houses freshly painted in pastel colours and iced with white roofs, and I soon arrived at the accommodation Appleby had provided. It was superb – much larger than I was expecting – with a balcony on which I spent many evenings watching the sun setting and listening to the sound of the tree frogs. The next day, I decided to venture into Hamilton to find my bearings. The capital felt like a large town, intermixed with international banks and accountancy firms, with Appleby’s office in the centre. I went to Hamilton most weekends for a coffee and to browse the shops, or to catch the ferry or an air-conditioned pink bus on my way to explore another part of the island. I spent my time at Appleby in the litigation and insolvency department with its small group of lawyers from around the world. Having read that Bermuda is a hub for international reinsurance companies, I imagined disputes about who had to bear the cost of natural disasters, commercial misfortune and possibly even shipwrecks (of which there seemed to be hundreds littered around the Bermudian coastline), but the reality was very different.

A significant amount of work was non-contentious. For example, one lawyer was considering the best way to draft share rights (a case that highlighted the pressure to provide better legal solutions than the competition in other offshore jurisdictions), while another was advising on the validity of a multi-jurisdictional life assurance policy. Most of it had a cross-border element, but there was also a surprising amount of domestic work. Although this included multi-million dollar claims, such as a shareholder dispute or a construction case in which the finished building overheated in the sun (a problem I have never encountered in Manchester), many of them were of a much lower value. I sat in conferences about local suppliers failing to pay for goods; drafted mortgage possession pleadings; advised on redundancies; and reviewed boundary disputes. This seemed a far cry from how I imagined law in an offshore financial centre, but it was still fascinating to see it in a practice over 3,000 miles away from home. The lack of distinction between solicitors and barristers in Bermuda means that counsel are involved at a much earlier stage than we would be in the UK, and consequently one of my roles was to write ‘stiff letters’ intended to resolve disputes before they escalated into legal proceedings. I also helped to draft witness statements, compile bundles, write internal memos and prepare cases, which was particularly important given that the largest claims comprised 40 to 50 lever-arch files. Fortunately, partners and associates were more than happy to talk to me about the best ways to manage information without losing track or missing important documents. Most of the time I was in my own individual office overlooking the park, and I only attended court once during my six week placement. Although court work seemed scarce (one of the partners regarded a “good spell of advocacy” as being in court two or three times a month), the hearing that I attended lasted all day and was testament to the quality of the advocacy and the significance of the cases dealt with on the island. As for the law itself, most of the library books were

BERMUDA INNER TEMPLE YEARBOOK 2014–2015

the same as those back home, and much of it seemed to be based on historic English law with a Bermudian twist. The office still used a well-worn 1999 White Book, for example, but I was warned not to rely on it too much, as years of judicial decision-making had added a local gloss. In stark contrast, the company’s marketing strategies were years ahead of those in chambers, with guidance on how to plan for meeting potential clients and acquire new business, all of which could be applied to good effect in the UK. However, my head of chambers might resist any proposal to adopt the department’s work attire. Most days, the men wore casual trousers and open-necked

always encouraged me to stay behind for a drink in the bar. I also discovered that the island has a fascinating history (it was heavily involved in both the American War of Independence and the Civil War) and explored a multitude of museums and the UNESCO heritage town of St George. In Hamilton, Mr Fox, the Sergeant-at-Arms, gave me a personal tour of the Session House (the Bermudian Houses of Parliament) and every Wednesday night, the waterfront came alive with live music, craft and food stalls. I thoroughly enjoyed my stay in Bermuda, and I would like to thank the Pegasus Scholarship committee and interview panel for giving me such a wonderful

“ The office still used a well-worn 1999 White Book, for example, but I was warned not to rely on it too much, as years of judicial decision-making had added a local gloss.” shirts, although a few wore traditional Bermudian tailored shorts in the brightest of colours, knee-length socks and, for meetings with clients, jacket and tie. I finally plucked up the courage to try the look for myself during my last week; fortunately, I was never caught on film! Outside of work, I explored Cooper’s Island nature reserve, which features the most secluded and unspoilt beaches on the island, and joined the local badminton club, who play twice a week in the searing heat and

opportunity; the scholarships and students department for answering my queries and helping me to plan my visit; and everyone at Appleby for organising my stay, making me feel welcome and ensuring that my time with them was interesting and worthwhile. Bermuda really is a jewel in the ocean; it is a place I will never forget. Arron Walthall

Queen’s Gate School offers girls a warm, supportive environment, where individuality is nurtured, and academic standards are high. Academic, Art, Drama, Music and Sports Scholarships, and means-tested bursaries worth up to 100% of fees, are available to assist girls to join us. See our website for details of our Open Events for entry in September 2015. For a prospectus, or to make a private visit to the School, please contact the Registrar, Miss Janette Micklewright, on 020 7594 4982 or email, registrar@queensgate.org.uk. Queen’s Gate School, 133 Queen’s Gate, London SW7 5LE

www.queensgate.org.uk

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INNER TEMPLE PEGASUS SCHOLARSHIP

New Orleans

Hannah Bush, St Philips Chambers

ew Orleans is a city which for many conjures up images of Mardi Gras, streetcars and, of course, Hurricane Katrina. Living there for a large proportion of 2013 gave me a deep affection for the city, but also a sense of unease about the way in which it delivers justice. For two countries so similar in so many ways, the starkest contrast between the USA and England and Wales is the use of the death penalty. I undertook a mixed pupillage with a focus on criminal law and spent a great deal of the first months on my feet in the criminal courts. Criminal law has always interested me, as has the debate about rehabilitation and punishment. With the assistance of a scholarship from the Pegasus Trust, I took a sabbatical from chambers and went to live and work in Louisiana, where I joined Amicus, a charity that assists lawyers representing clients on death row in the USA. The first thing that hits you when you arrive in the Deep South – after the sweltering humidity – is the friendliness. Conversations at the bus stop and grocery stores are standard and people cannot do enough to help you. The second thing is the music. Anywhere you go in the city, you are surrounded by some of the best jazz and blues you have ever heard. Buskers are everywhere and brass bands march down the street with people dancing behind. The vibrancy makes the streets of England seem dull by comparison. Third is the food. Some of the best – and most calorific – food you will ever have is in New Orleans. Exercise is compulsory for anyone not wanting to gain several kilograms and a potential heart condition. I worked alongside two attorneys in a small office. The office has about a dozen clients, all on death row, with appeals at various stages. There is always something to do, an argument to put forward, an application to file. For the men ‘on the row’, life is a constant merry-go-round of routine, stopped only by a successful appeal or execution. They are in their six by nine foot cells for twenty-three hours a day in the sticky Louisiana heat. I found the humidity insufferable in March and the standard response from everybody was, “You just wait till the summer!” For one hour per day, the prisoners are let out of their cells. This is a time to go outside (within the confines of pens) or make telephone calls. Most of the clients do not have regular contact with their family or friends. A decade or so incarcerated in a prison some three hours’ drive from New Orleans makes it difficult, emotionally and practically, for relatives to stay in touch. The prisoners do, however, maintain regular contact with the Amicus office, and taking calls from them became part of my daily routine. As a barrister, I am accustomed to meeting clients at court or at a pre-hearing conference. I do not have conversations with clients purely for the sake of seeing how they

are. Yet in New Orleans, a large portion of my day consisted of just that, and I came to know the clients very well. For them, contact with another human being – something we take for granted – was something they looked forward to. By the time I started making visits to the state prison, I had already been in the office for a few months. Most of the visits were not case-related but simply an opportunity for me to meet the people I had spoken to so often, and an opportunity for them to swap their cells for an air-conditioned conference room. Over the past few years, I have made many prison and cell visits. Nothing prepared me for visiting ‘Angola’. Officially known as the Louisiana State Penitentiary, this prison is bigger than Manhattan and is a working farm. The distance from New Orleans means that you cannot visit frequently but when you do, the days are long. Out of more than 5,000 inmates, approximately 80 are on death row. Many of the men are ‘lifers’ working the fields, and the only way to get around is to be driven along with a prison escort vehicle. Aside from client welfare, I spent my time assisting with an impending capital trial. Whereas in England and Wales we are accustomed to receiving papers late, in the USA, months if not years can be spent preparing for trials. As an attorney, you are responsible for every aspect of the case: securing funding, instruction of experts, mitigation research, regulatory arguments, jury selection and the trial preparation itself. In the weeks leading up to the trial, jury selection became the focus of my work. Ask any American lawyer what the most important part of their justice system is and the answer you will receive is jury selection. Although the concept makes most lawyers in England and Wales very uneasy, for those dealing with capital cases, knowing the personal details of the jurors may mean the difference between life and death. Jurors can be sequestered for weeks at a time and the court can sit every day (including weekends) and long into the evenings. Decisions regarding case management and jury selection are crucial, and knowing that execution of your client is a potential outcome can be incredibly stressful. I left Louisiana with a love of jazz, baseball and seafood, but also with a new-found respect for the justice system in England and Wales. Our system’s international reputation for fairness is well-earned. What I have learned about the different ways in which our peers judge us is something that I will continue to reflect upon. I am greatly indebted to the Pegasus Scholarship for enabling me to have this opportunity and I am, I hope, a better advocate for it. Hannah Bush

PEGASUS SCHOLARSHIP INNER TEMPLE

Kampala, Uganda James Mehigan, Garden Court Chambers

n November and December 2013, I had the pleasure of working at the offices of Onyango & Co in Kampala, Uganda. The firm consists of three partners and two associates who practice in a broad range of areas, from land law and crime to international taxation. Its reputation for human rights and international criminal law was the reason I was drawn to spend time with the firm, and in the relatively short period I was there, I was exposed to some fascinating work at the cutting edge of human rights and constitutional law in Uganda and East Africa. The first task I was given was to assist with the drafting of a challenge to the Public Order Management Act 2013. This controversial Act, recently brought into force, allows the police very wide scope to determine what a ‘public meeting’ is. The definition focuses largely on the fact that such a meeting would include people gathering to petition on issues of ‘public interest’. It then provides the police with great powers of enforcement in order to disperse such meetings. This is seen by civil society groups as a means of containing political opposition masquerading as the maintenance of public order. The constitutional challenge has now been lodged and hopefully the case will be heard at some point in 2014. In addition to this human rights and public order work, the firm has been advising on a lengthy land purchase on behalf of a group of displaced farmers. Having been violently removed from the land by the police (in order for the land to be transferred to a single corporation) the farmers formed a co-operative and sought compensation. Onyango & Co represented them, funded by an international NGO, as they set up the legal architecture required to buy land communally and redistribute it to their members in such a way as to protect the legal interests of each member and the collective. It was significantly less uplifting to assist with the cases of the firm’s numerous lesbian, gay, bisexual and transgender (LGBT) clients. LGBT rights are not high on the political agenda in Uganda, to say the least. In the course of my time in Kampala, I worked on one highprofile case of a European accused of trafficking, obscene publications, the bail application of a man accused of having homosexual sex and a constitutional challenge to a Cabinet Minister’s power to shut down a human rights training exercise conducted in private by an LGBT NGO. This is, tragically, the tip of the iceberg for LGBT work in Uganda. Indeed, shortly after I returned from Uganda, the Government rushed through draconian legislation that increased the punishment for certain homosexual acts to life imprisonment. This was rightly condemned by governments and NGOs around the world; however, this was to no avail and the law is beginning to be enforced. I was fortunate enough that my visit coincided with the listing of Uganda’s first constitutional challenge to the practice of so-called ‘rendition’. The case arose out of the bombings which took place at a rugby club and a restaurant in Kampala during the World Cup Final in 2010. Over 70 people were killed in the blasts and it

was linked to the Somali group Al-Shabaab. The case raised significant human rights and constitutional issues because many of the accused were returned from Kenya and Tanzania without due process. There were serious and consistent allegations of torture by those involved in the transfer of the prisoners from one jurisdiction to the other, leaving the Constitutional Court in the difficult position of balancing the petitioners’ rights against the obvious need to prosecute someone for these crimes. It was of particular note that the petitioners relied on numerous decisions of the UK House of Lords and the European Court of Human Rights, whereas many of the state’s authorities came from the Bush administration’s success in convincing its own courts that the absolute prohibition on torture is more malleable than it may appear. If ever there was a clear-cut example of the leadership role and responsibilities of Western courts in considering their obligations under international human rights treaties, this petition was just such a case. It was fascinating to see in oral argument just how significant and far-reaching the impact of self-interested interpretations of such treaties can be. One of the areas I was most interested in before I went to Uganda was the international criminal law element of the work of the country’s courts. The firm represents a senior member of the Lord’s Resistance Army, a religious armed group from the north of Uganda, a number of whose leaders are indicted at the International Criminal Court. One senior member of this group was recommended for an amnesty by an independent commission acting within its statutory powers, and the firm had successfully challenged the DPP’s refusal to stay the prosecution on the basis of this recommended amnesty at the Constitutional Court. The court had found that he was being discriminated against by being refused the effect of the recommended amnesty without just cause or reason. Interestingly, this was a constitutional challenge, whereby the Attorney General was challenging the constitutionality of one of the Government’s own actions. Having lost in the Constitutional Court, the Attorney General then appealed, and the client has remained in jail for the intervening two years as he awaits a hearing date in the Supreme Court. Despite the fact that the Government has since repealed the Act granting the powers of amnesty before re-enacting it in almost the same terms, the Attorney General is continuing to challenge the constitutionality of the law. The volume of fascinating work which is conducted by Onyango & Co and the dedication of the firm’s lawyers was inspiring to witness. I learned a huge amount from my time in Kampala. We now hope to foster future links between the firm and chambers in cases in which such collaboration can be mutually beneficial. I am grateful to the Trustees of the Pegasus Scholarship for providing me with the support needed to undertake this visit. Without them, it would never have been possible. James Mehigan

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New York

Gráinne Mellon, Garden Court Chambers

he Centre for Constitutional Rights (CCR) is one of America’s leading civil liberties organisations. Based in New York, CCR has been at the forefront of progressive constitutional and human rights litigation, both in the US and internationally, since its foundation in 1966. It is particularly renowned for its litigation under the Alien Tort Statute and in relation to the detention of alleged ‘enemy combatants’ at the US military detention camp at Guantanamo Bay, Cuba. I had followed the work of CCR for some time, particularly in the international human rights field, and was always impressed by their strategic litigation record. I was delighted to find out that, although not an official Pegasus placement, CCR has a long history of working with English qualified barristers as Pegasus scholars. I was really grateful to be able to approach these former scholars for guidance, both in terms of applying to CCR and presenting a proposal to Pegasus for funding. When the time eventually came to move to New York, I found an apartment close to the UN, located CCR’s office (which was in the heart of the Village) and started to settle into work. For just over two months, I split my time between the International Human Rights and Guantanamo Bay litigation teams.

“ I learned a great deal from the lawyers at CCR and in particular their creative and cutting-edge approach to legal argument and strategy.”

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It was an interesting time to be working in international law and civil liberties in the US during which time, David Miranda’s partner was arrested in Heathrow, Bradley Manning was convicted and sentenced to 35 years for espionage, Obama considered military intervention in Syria and, just as I joined, CCR won a ground breaking stop-and-search case against NYPD. I am lucky enough to say that my work touched on many of these issues. One of my first tasks was to brief Michael Ratner, the President and founder of CCR on the implications of Schedule 7 of the Terrorism Act 2000 for international whistle-blowers. I was then involved in the ‘Right to Heal’ campaign, led by CCR and a number of Iraqi NGOs concerning the health consequences of the Iraq War. My work here included drafting a shadow report to the Human Rights Committee, communicating with various UN Special Rapporteurs and preparing submissions to the Inter-American Commission on Human rights for the purposes of a proposed thematic hearing. I also assisted in the Tanvir v Holder case, which is currently pending before the Federal District Court of Manhattan and which challenges FBI use of the No-Fly List to coerce individuals to become informants. On Guantanamo, I worked on a report challenging government recidivism figures and on seemingly never-ending issues regarding the resumption of transfers. It was rewarding to see the transfer of two Algerians during the time I was there, but CCR continued to work hard in particular in relation to the Yemeni transfers. It remains shocking and frustrating that, as of May 2014, there remain over 149 detainees in Guantanamo, 78 of whom have been cleared for release for over 12 years. I have no doubt that the experience I had with CCR, the lessons I learned and the people I met will be of real benefit to my future practice as a barrister, as well, of course, as a time I will always remember. I learned a great deal from the lawyers at CCR and in particular their creative and cutting-edge approach to legal argument and strategy. Outside of work, I loved every second of being in New York and took advantage of all of the summer sights and evenings. I am very grateful to everyone who helped make this experience a reality for me including the former Pegasus scholars, everyone at the CCR and, of course, the Pegasus Trust itself. For anyone who is interested in how other legal systems and other lawyers work, I highly recommend the Pegasus Scholarship: it really is one of those opportunities you shouldn’t miss. Gráinne Mellon

CELEBRATE THE LIFE INNER TEMPLE

Maﬆer Topley

by Maﬆer Henderson

eith was born on 19 January 1936, and died on 18 May 2014. He had been a common law barrister, Master of the Queen’s Bench Division, Senior Master, Admiralty Registrar, Queen’s Remembrancer and Editor of the Annual Practice. Those bald facts provide little insight into the man. Inside his slight body was a pocket battleship, whose guns were well trained to root out injustice and foster human wellbeing and good humour. The qualities which I will most remember about him are his modesty, his forensic power and skill, his captaincy, his verse and his generous spirit. Keith built up a prodigious common law practice in what had become, on the elevation of Ronnie Dow and Connolly Gage, a largely divorce set at 2 Harcourt Buildings. He was doing 50 and more sets of papers a week while in court on most days. Running down cases were his staple diet. You never heard him talk of his practice. He saw it and spoke of it in self-deprecating terms although none of it was inherited and its scale was comparatively very large indeed as a result of his formidable diligence, intellect and ability. Keith was more than able enough to have taken silk and to have thrived in silk but he was too modest for his own good. His learning, his sense of fairness and his intellectual ability allowed him, when he instead was appointed a Master, to answer complex issues of fact and law at a speed which was beyond most of those who appeared before him and many of those to whom appeals were sometimes taken. Two cases which went to the House of Lords vindicated Keith’s judgment and exemplify his all round wisdom; X (Minors) v Bedfordshire CC, a case which lasted six days in the Court of Appeal and 13 days in the House of Lords, where the strike out ordered in a matter of hours was duly upheld; and Alcan Ltd v Republic of Colombia. In Alcan, Lord Diplock went out of his way to commend Keith on getting “’the answer right…without the advantage of adversarial argument’’ and doing so in a matter of hours while other, supposedly greater, brains took much longer and with much argument had come to the wrong answer. Although Keith took some quiet satisfaction from these cases, they never turned his head, let alone reversed his modesty. He saw and described himself as a “master of sheer technique” in a knockabout corridor and the Bear Garden. I will never forget Keith’s forensic power; well displayed in Slough magistrate’s court when I was waiting to come on. The clerk always retired with the bench. He was an elderly tyrant whose influence over the magistrates was only too evident. Keith was having none of this. The clerk’s interventions had made his disbelief in Keith’s witnesses and submissions clear. Keith submitted correctly that no issue of law arose and that the clerk’s opinions could be of no use to the very experienced bench. Indeed it would be an affront if such a wise bench were to seek any advice from anyone, however learned and experienced such an adviser might be. The bench retired alone and

returned with an acquittal, causing obvious anger. Keith had a great love of water, of the sea in particular, and of sailing. Whether as a cox at Oxford or sailing his junk-rigged boat or living in retirement close to the Royal Yacht Squadron in Cowes, he was absorbed and enlivened by water. It did not always bring out the best in him when morons let him down, but his captaincy revealed the inner angry man who was only satisfied by the very best of performances. The toothlessness of the skipper aboard his modest boat did nothing to diminish the ferocity of his orders and requirements. Keith’s verse was copious, witty, gloriously irreverent and great fun. You may be able to read these word pictures as well as a Rowlandson sketch and remember not just the Corridor characters but the Senior Master whose acute eye could paint them in words. Sharp suited clerk from the Battersea Poly, Cambridge girl with thick stocking and brolly. Locked in dispute over “Further and Betters” “He hasn’t responded to half of my letters” “If she wants it adjourned, she should pay in the rent” “And give me my costs Sir, in any event.” Though the whole litigation may end in disaster, Nothing savours so sweet as a win ‘fore the Master! Old Managing Clerk, my whole life in the job, Retiring this month with a pension, praise God! No thanks to the firm I have served all those years, They’ll give me sherry and three hearty cheers. No, I’ve paid to The Fund, Sir, with strict assiduity And secured for myself a sufficient annuity. So its bridge and begonias, neighbours to tea At our rose covered cottage by Clacton on Sea Young Silk, urbane and condescending (Poise and conceit in equal blending) Implies that his remuneration Is insufficient compensation For being briefed to waste submissions On Masters in their low positions. His honed and finely argued phrases Were better aimed at higher stages. His devastating peroration, Must wait for true appreciation Until before the House of Peers His ruined client falls in tears We have lost a great little man who was generous to a fault, an excellent advocate, a much cleverer lawyer than he would acknowledge and a very accomplished gentleman. Maﬆer Henderson

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The Art of Advocacy

The Work of the Advocacy Training Council MaďŹ&#x2020;er Green, Chairman of the ATC, charts another successful year in the pursuit of excellence in advocacy.

he Advocacy Training Council (ATC) was established by the Council of the Inns of Court and operates under a constitution introduced in 2012. It is responsible for providing leadership, guidance and co-ordination in relation to the pursuit of excellence in advocacy, its principal role being to oversee the development and delivery of advocacy trainers for the Bar of England and Wales. The ATC is not itself primarily involved in delivering training, this being the traditional role of the Inns and circuits. The ATC acts as a form of think tank, promulgator of materials and standard setter and as an umbrella under which all interested professionals can gather to exchange ideas and work collectively upon issues of concern to the profession. This includes not only members from the legal profession, but also academics, intermediaries, consultants, charities and those from the related medical and social professions Over the past few years, the ATC has focused upon a range of projects and in particular upon advocacy in relation to vulnerable witnesses and those with communication needs. But it has also extended to more mainstream issues such as advocacy and expert evidence, language barriers and translation problems in court, and ethics. Many ATC projects have never before been subjected to fundamental research. Not only is the ATC engaged in novel and elementary research, it has also embarked upon the first stages of a project combining all of the trainers from the four Inns and from the circuits and BPTC providers, with a view to a wholesale review of all aspects of the training of advocates and producing a new and updated method for training. An inaugural conference was held in the Middle Temple on 8 March 2014, and involved discussions on the application of case analysis and on the Hampel Method. Over 100 trainers joined in small working groups to consider various questions relating to these topics. The views of each group have been collected and the ideas synthesized. This forms the basis of a series of subprojects to be organised over the coming months.

The nature of advocacy training is continually evolving. The skills required to cross examine a vulnerable person, for example, are very different to those needed to cross examine an entirely competent adult. The Advocateâ&#x20AC;&#x2122;s Gateway, or (TAG), website was launched in 2013 â&#x20AC;&#x201C; www.theadvocatesgateway.org. It provides easy access to guidance for working with witnesses and defendants with communication needs, and provides trainers with resources to use when teaching advocates about handling vulnerable witnesses and defendants. There are numerous new toolkits being worked upon by specialist groups, with the work being supervised by a management committee comprising of judges, barristers, solicitors, lawyers from the CPS and MOJ, academics and consultants and other specialists. The principal output is the production of toolkits. These identify common issues encountered when examining vulnerable witnesses and defendants together with proposed solutions. In addition to the existing eight toolkits already online, four further toolkits were published in July, namely: general principles when questioning witnesses and defendants with mental disorders; identifying vulnerability in witnesses and defendants; planning to question someone who is deaf; and identifying, planning and preparing to question someone using remote link. Social mobility events have been held in Leeds, London and Birmingham respectively. The Social Mobility workshops involve students aged 17 to 18 years, from a range of schools, selected on their academic records, passion, interest in the law, and socioeconomic status. The workshops include a talk given by a trainer on the essentials of examination and cross examination in court. This is followed by a mock trial in which the students play different roles based upon the trial of Daddy Bear for assault occasioning bodily harm upon Goldilocks, when he pulls her out of bed and throws her downstairs. Experience of working with students on this exercise over many years teaches that only rarely is Daddy Bear found guilty. Student participants receive the opportunity to work with real barristers; a remarkable learning experience.

Social Mobility event in London 2013

ADVOCACY TRAINING COUNCIL INNER TEMPLE YEARBOOK 2013–2014

The Hon George Hampel AM WC hosting a master class

The ATC regularly hosts master classes. An illustration was the master class in June led by Professor The Hon George Hampel AM WC and Her Honour Judge Felicity Hampel SC. This consisted of a lecture on the Hampel Method and demonstrations on how the method can be adapted to different levels of experience. Over 100 people attended. A report on the event prepared by Master Leonard is available on the ATC website, along with a video of the evening. The ATC is heavily involved in providing training overseas. It is an important part of our function to assist in disseminating our knowledge and skills and to assist other jurisdictions in developing their own advocacy skills and in strengthening fair trial procedures. The ATC generally works on the basis of requests for assistance and our work is essentially pro bono. We send experienced silks and juniors from across the Bar. We are conscious that we are ambassadors for the profession and we work in collaboration with the local profession. At present we have teams working in multiple jurisdictions from Eastern Europe, to Africa, across the Gulf and to Asia. Recent illustrations include:

UAE HHJ Jeremy Donne RD QC alongside various other advocacy trainers hosted a program titled Common Law Advocacy in Practice – the adversarial advocate at work in Dubai. The two day event focused primarily on direct and cross examinations, where numerous talks and presentations were provided.

Pakistan Three advocacy trainers focused on a murder case study exercise, case analysis, witness handling and submission advocacy. Trainees were given face to face instruction and guidance, with video reviews.

Sierra Leone This was a weeklong event focusing on ethics and advocacy skills.

Singapore Ten QCs and judges delivered training relating to witness handling, examination-in-chief and cross examination, opening speeches and pleas in mitigation, ethics, examination and cross examination of experts, followed by a day of mock trails.

Ireland Ten advocacy trainers held a successful training session on Enhancing Advocacy Skills which combined case analysis theory and practice, witness handling, direct and cross examinations followed by break out sessions.

Austria Master Morley and Paul Stanley QC held a two day introductory course on Common Law Advocacy in Practice. The feedback from the course was extremely positive.

Zimbabwe Plans are underway to provide training with the Law Society in Harare later this year in a continuation of a programme which has been running for several years and which involves practitioners and judges in Zimbabwe. Maﬆer Green

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Strasbourg and the National Courts From a lecture by Maﬆer Mahoney

ne of my tasks as a young case lawyer in the Registry of the Strasbourg Court was to prepare and proofread verbatim records of public hearings. Late one night, I found myself reading that the applicant’s complaint went to one of the most important safeguards under “the Convention for the Protection of Human Rights and Fun and Mental Freedoms”. So you have before you tonight an official representative of fun and mental freedoms. This is a necessarily sketchy overview of the ways in which national judges and international Strasbourg judges can influence one another in forging a European common law of human rights.

There exist various options for regulating the relationship between the Strasbourg Court and the national courts, ranging from a strictly hierarchical approach involving the judicial equivalent of micromanagement by the Strasbourg Court to a more collaborative approach between international and national judges, where responsibilities are shared. My impression is that the relationship has been oscillating up and down this scale, with the working model not yet definitely settled. How the emphasis will be placed in the future will be one factor shaping the kind of overall system of human rights protection that we will have in Europe. My own preference is for the collaborative approach. The guiding principle is the so-called subsidiary character of the international enforcement system set up under the Convention. From the early years of the Strasbourg Court’s existence, it has been reiterated that primary responsibility for the protection of human rights falls on the national authorities. Looking more closely, how does the judicial control of the state’s compliance with human rights standards operate from the point of view of the international judges and the national judges?

“ One unknown lying ahead is whether the highly respectful dialogue between the Strasbourg Court and the national courts will be maintained, or whether it will veer off in another direction.”

STRASBOURG AND THE NATIONAL COURTS INNER TEMPLE YEARBOOK 2014–2015

From the international side, the Strasbourg Court may well be called on to go over exactly the same terrain as that previously covered by the national courts. Does the Convention therefore involve the Strasbourg Court sitting in appeal on judgments given by national courts? The answer is the typical, lawyerly one of yes and no. The Strasbourg Court has developed a principle of interpretation known as the doctrine of the national margin of appreciation, which recognises that discretionary choice is available to the national authorities in certain contexts when they are regulating the exercise of Convention right. Generally speaking, to quote Sir Nicholas Bratza, “Despite what is sometimes heard, the Court is highly respectful of national courts and their place in the Convention system…” In practice, there will be less temptation for the Strasbourg Court to engage in micromanagement if the national courts are operating domestic remedies with a view to compliance with Convention standards and case law. Going further, Sir Nicholas Bratza added, “National courts applying themselves the Convention can be highly influential in the way the Strasbourg Court’s own interpretation evolves.” Although there have always been, and will always be, instances of the Strasbourg Court reversing the national ruling on a human rights issue, many cases illustrate judicial dialogue. On a few occasions, the position on both sides progressively evolved in the light of each other’s judgments. However, there is far from any consensus surrounding the margin of appreciation and its application. Some Strasbourg judges take the view that if the national courts have properly and fully considered the contested legal measure on the basis of the relevant human rights standards, there will need to be strong reasons for them to substitute their own, different, assessment. On the other hand, some Strasbourg judges, fearful of abdicating their ultimate responsibility for ensuring the observance of the Convention by the contracting states, are minded to take a less deferential attitude. For them, each case is to be individually considered afresh. National courts

are to be corrected if they are judged to have erred in their assessment of the human rights issue. One unknown lying ahead is whether the highly respectful dialogue between the Strasbourg Court and the national courts will be maintained, or whether it will veer off in another direction. Then there is the perspective of national judges. Perhaps the principal question is the extent to which national judges should feel bound by Strasbourg case law. Here, Strasbourg insiders are less well qualified to speak, since this is something that will be regulated by national law or practice in each country. Baroness Hale, in an article in 2012, pointed with apparent approval to several examples where the Supreme Court had followed its own British line rather than a panEuropean line, so as either to extend a Convention right into a new context or, on the contrary, to accept a restriction on its exercise. As a matter of principle, I see nothing untoward in this. While the contracting states have undertaken that their domestic authorities, including the courts, will observe the standards laid down in the Treaty, the object of the Convention system is not to bring about uniformity of national law. Strasbourg judgments constitute the most authoritative source of Convention law for national judges, but that does not mean that every statement in every judgment has to be slavishly followed. The starting point for British judges is frequently taken to be the famous dictum of Lord Bingham in the 2004 case of Ullah, where he said, “The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.”

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“ This urging of a principled, even robust, attitude to the Strasbourg jurisprudence is not a clarion call for rebellion, civil disobedience and unbridled activism on the part of national courts. Rather, it is a plea that the relationship between the Strasbourg Court and the national courts should not be taken to be a straitjacket.” Some commentators query whether an approach of doing the strict minimum should be derived from Lord Bingham’s dictum. In the 2012 case, Rabone, Lord Brown said that “if a domestic court is content to decide a Convention challenge against a public authority, and believes that such a conclusion flows naturally from existing case law, albeit that it could be regarded as carrying the case law a step further, then in my judgment it should take that further step”. What is the implication of decisions like Rabone? Does the principle of subsidiarity mean that national judges, when confronted with a novel situation may themselves apply, or even evolve, the interpretation of the Convention outside the strict confines of the existing case law; to “leap ahead of Strasbourg”, in the words of Baroness Hale? A note of caution should be sounded in the light of dicta in a decision handed down by the Supreme Court in June 2013. The claims concerned the liability or not of the UK Government in respect of servicemen killed or seriously injured in active combat in Iraq. In his judgment, Lord Hope said, “Care must…be exercised by a national court in its interpretation of an instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg Court.” For British judges, the will of Parliament, as embodied in the Human Rights Act, has not been read as granting them a roving mandate to take the European Convention forward in directions not safely supported by existing Strasbourg jurisprudence. The variety of differing national legal environments, combined with the principle of subsidiarity and the margin of appreciation, make it difficult to envisage treating Strasbourg judgments as binding throughout the whole community of 47 Convention states. Recognising a truly ergo omnes effect for the Strasbourg judgments would be tantamount to imposing a rule applicable within each national legal order of primacy of Convention law over national law. We are not yet at that point. I therefore agree with Sir Nicholas Bratza that “it is right and healthy that national courts should continue to feel free to criticise Strasbourg judgments where those judgments have applied principles which are unclear or inconsistent, or where they have misunderstood national law or practice”.

This was demonstrated in the cases of Horncastle, at home, and al-Khawaja, in Strasbourg. Even in the presence of a direct precedent from Strasbourg on hearsay evidence, national superior courts remained free to open a judicial dialogue with the Strasbourg Court by declining to follow precedent, and by explaining in the reasoning why the Strasbourg Court got it wrong. This urging of a principled, even robust, attitude to the Strasbourg jurisprudence is not a clarion call for rebellion, civil disobedience and unbridled activism on the part of national courts. Rather, it is a plea that the relationship between the Strasbourg Court and the national courts should not be taken to be a straitjacket. Ideally, it should be perceived on both sides as being a flexible, open-minded co-operation directed towards enabling the national courts to resolve human rights issues, so as to obviate the need for recourse to Strasbourg, but with the Strasbourg Court having the last word in the event of interpretive disagreement. It is essential to preserve a feeling of respect between Strasbourg judges and national judges, a sense of partnership. Certainly my predecessors as UK judges on the Strasbourg Court have striven to foster that trust, and I am endeavouring to follow their example. Since the main protection of human rights has to be secured by the national authorities, much of the ultimate success of the Convention system will depend on the quality of the co-operation between the courts in the member countries and the Strasbourg Court. Judicial co-operation should involve the Strasbourg Court’s acknowledgment of the national court’s closer grasp of the facts, national policy and other issues involved in balancing the respective interests of the community and the individual. On the other side, the closer the analysis of human rights issues by the national courts reflects the standards and case law of the Convention, the greater the deference of the Strasbourg Court is likely to be. I am in favour of the centre of gravity for the judicial protection of human rights being firmly and solidly placed at national level. Maﬆer Mahoney 7 October 2013

INNER TEMPLE YEARBOOK 2014–2015

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Timeline

by the Archivist, Celia Pilkington

400 YEARS AGO

300 YEARS AGO

1614

1714

The Inn’s Parliament was forced to take drastic measures to deal with the unruliness of its members and staff. The district of Whitefriars, also known as Alsatia, lies to the east of the Inn beyond the Tudor Street entrance. Whitefriars provided the ancient right of sanctuary to those in need or distress. It therefore harboured a number of outlaws and others of questionable morals and the proximity of this population to the Inn caused the Benchers to fear that its own members might be tempted into debauchery, drunkenness and riot. In 1614, measures passed in the Inn’s Acts of Parliament suggest that an organised effort was being made to contain any outbreak of lawlessness. The wall bordering Whitefriars was ordered to be repaired. Other points of entry to the Inn were blocked and secured. Events in 1614 show the Benchers’ fears to have been well founded. One member was investigated “on suspicion of his incontinent life and for lodging a lewd woman with him in his chamber within this house this last vacation”. The Inn’s butler was disciplined for ‘losing’ the silver. A stubborn recusant, Irish member, Thomas Shurlock, was invited to answer for his offences or be expelled. Duelling was common in the garden of the Inn at that time. The Christmas festivities of 1613 had culminated in a pack of rowdy students breaking open chamber doors at night and making loud noises with drums and horns. The following winter, in November 1614, new regulations for the Inns of Court and of Chancery were propagated by the Privy Council. The Inn was to be searched twice during the Christmas term for itinerant strangers. Other searches were to be mounted during vacations. Those not taking communion were to be expelled. And all those claiming rights of residence at the Inn had to substantiate their status as utter barristers. A ban was imposed on dangerous and metal accessories, principally spurs, daggers and swords, so that “outward decency in apparel is an ornament to all societies, and containeth young men within the bounds of civility and order”.

On the 30 December 1714, Mr John Langford, a resident at this Inn was found half dead within the precincts of the Middle Temple. It is not known precisely when he died. However, in February 1715, the rules for the watch were amended with the Treasurer offering a reward of £20 “towards the murder of Mr John Langford who lately lodged in this house”. New recruits for the watch were hired. The “pannierman, head porter, second cook, under porter, two turnspits, wash pot and 2 persons appointed by the Treasurer” were requested to join the watch. From these, individual patrols of five individuals were selected. The gates were shut up at 10 o’clock each night and the watchmen were told to inspect the premises and checked every staircase so that all lights were put out after midnight. An additional task was to drive away all beggars and other derelicts. And they were required to ensure that “no straying woman to be permitted to go in or come out of the house after 11 at night”. But the watch still botched the job. More than once during the 18th Century residents of the Inn were awoken by the news of murder within their precincts. In 1727 Mr John Darby, a young clerk in the office of Sir George Cooke, was found shot in the head. His hand and ear had been cut and all his rings, watch and all other valuables removed. In 1734, there was a triple murder and robbery of a lady and her two servants, whose belongings were also taken. The crime became a national sensation. The culprit, to general outrage, turned out to be a woman. Hogarth painted the murderess on the eve of her execution. In 1739, a suicidal barber threw himself out of a third-floor window in Fig Tree Court.

A Dissolute Year

Homicide at the Inn

TIMELINE INNER TEMPLE YEARBOOK 2014–2015

200 YEARS AGO

1814

The Greatest Advocate of the Century In November 1814 the “greatest advocate of the century” Sir William Webb Follett was admitted to this Inn. “This monument, raised by public subscription, is sacred to the memory of Sir William Webb Follett. He died on the 28th June 1845, being at the time of his decease representative in Parliament for the city of Exeter and Attorney General to Queen Victoria. Of unblemished conduct in every relation of life, of manner gentle and prepossessing; combining with great legal knowledge extraordinary powers of persuasive eloquence he attained with the esteem, admiration, and goodwill, of all who witnessed his brilliant career the highest eminence as an advocate and Parliamentary speaker. The general hope and expectation that he was destined for the highest honours of the law, were blighted by his untimely death. After a severe and protracted illness, aggravated, if not caused by his unremitting devotion to his public and professional duties, he died at the age of 48 years, heartily thankful to Almighty God for the many mercies vouchsafed to him, and in humble reliance on the merits of his Redeemer.” A mark of his extraordinary brilliance is given by the enormous rise in his salary. He began on 308 guineas which within four years had leapt to 2,853 guineas.

100 YEARS AGO

1914

Australian War Correspondent One of Australia’s foremost war correspondents, Charles Edwin Woodrow Bean, was admitted to the Inn. He was called to the Bar in 1904. His chief claim upon our interest is his editorship of the 12-volume Official History of Australia in the War of 1914–1918. Bean wrote Volumes I to VI himself, dealing with the Australian Imperial Force (AIF) which saw action in both France and Belgium and at Gallipoli. Bean was instrumental in the establishment of the Australian War Memorial. He also helped in the creation and popularisation of the ANZAC legend. In the first volume of his Official History of Australia in the War of 1914-1918 he wrote: “In August, 1914, the test came with extreme suddenness. War fell upon the British people out of a clear sky. A hundred years of peace, sheltered by the British Navy, had rendered the Briton guileless and unsuspicious even when trouble clearly threatened the rest of the world. The continental peoples of Europe, divided from hereditary enemies by mere lines drawn upon the map, realised that, if the clouds which they saw piling should break, they would be in the deluge. But the British gazed on the lowering quarrel as at a picture, an interesting spectacle, but one scarcely affecting themselves. The notion that the assassination of a foreign Archduke by an outraged patriot could precipitate them personally into battle and death – that the son who came home daily from his work in a London office, or who shook from his eyes the spray of the Sydney surf, would within a few months be lying with his hair matted in blood on a Turkish hillside – did not even suggest itself until the tempest was rushing down upon them in the last few days of the crisis.”

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Temple Family Picnic

TEMPLE FAMILY PICNIC INNER TEMPLE YEARBOOK 2014–2015

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Magna Carta, Religion and the Rule of Law An International Conference at the Temple Church by the Maﬆer of the Temple

ing John sealed Magna Carta in June 1215 “for the honour of God and the exaltation of Holy Church and the reform of our realm”. His advisors included two archbishops, seven bishops and Aymeric de Saint Maur, Master of the Temple. On Saturday 7 June 2014, the Temple Church, in association with the Institute of Contemporary British History, the Dickson Poon School of Law and the Department of Theology and Religious Studies, all at King’s College, London, held a conference on Magna Carta, Religion and the Rule of Law. The conference was arranged by Master Hill and the present Master of the Temple – successor to that remarkable Aymeric who both bankrolled King John and urged him to seal the Charter. Speakers joined us from the UK, USA, Canada and Spain. Master Schiemann chaired a session; Master Laws led an informal colloquium on the Sunday morning for further discussion of Saturday’s themes. The main sessions were in the Halls of Inner and Middle Temple. Lord Judge started the day: “ Today’s conference…has brought together an extraordinary array of talent and expertise. I doubt whether any of the myriads of occasions from now on for the next two years, where Magna Carta will be discussed and dissected and analysed will be equalled by a group of scholars of the international reputation and distinction which has been assembled here today.” We remember Magna Carta now as a staging-post on the way to the civil liberties which we can (almost) take for granted: no taxation without representation; due process; and enforceable restraints upon the executive. The Charter itself, however, begins with a ringing guarantee “for us and our heirs forever that the English Church shall be free, and shall have her rights entire, and her liberties inviolate”. This clause has a particular link with the Temple. The Temple and the Tower were the London headquarters of King John, 1214-15. A charter declaring the freedom of the English Church was issued from the Temple, 21 November 1214 and was re-issued, again from the Temple, 15 January 1215. It is increasingly clear that Archbishop Stephen Langton, famous for his study of the Jewish scriptures and responsible for the Charter’s final form, envisaged the whole Charter as a new, English version of Deuteronomy: it was to be ‘the book of the law’ which would realise a biblical kingship under God. (This would be the argument of the sermon preached at Choral Mattins on Sunday by Canon Professor Nicholas Sagovsky.)

MAGNA CARTA, RELIGION AND THE RULE OF LAW INNER TEMPLE YEARBOOK 2014–2015

Once Lord Judge had enthralled us with the story of the Charter’s gestation and survival, Master Baker drew on his peerless knowledge of medieval law to trace the Charter’s influence and, in particular, the role of the common lawyers in the application of its principles. He drew our attention to an opening irony: the most famous clauses, on due process, were to the succeeding centuries so puzzling and controversial that it was unclear whether they had any legal effect at all. “ The stirring words which later generations would hold sacred were thus explained almost out of existence through strict legal analysis. In spite of all this, many of the notions which Blackstone regarded as the rights of all mankind, and which have been formulated in the modern world as ‘human rights’, were nurtured during the very same period by the English common lawyers. They could not have been conceived without presupposing that kings should govern in accordance with law rather than by the exercise of arbitrary power. Magna Carta did not explicitly declare that, but it was the underlying subtext. By the time of Henry VIII, at the latest, lawyers saw a clear connection between Magna Carta and the rule of law…. Standards take centuries to evolve. As Coke was fond of saying, nothing is perfect at the same moment that it is invented. Yet the English legal system was moved and directed by the same basic principles as are found in the declarations of rights. The king’s government was obliged to observe the law. The king’s judges, even if occasionally (and only rarely) subservient, often ruled against the crown and set bounds on the prerogative. The king could not interfere with private property rights by exercising the prerogative in new ways; and if any minister of the crown purported to act unlawfully his act was deemed invalid, for the law presumed that the king would do no wrong…. The refusal by the two English universities to countenance the study of domestic law meant that the common law was developed by graduates of a different university, with their own distinct schemes of thought. They borrowed a few Roman principles which made sense, such as mens rea and aequitas, but they were very few. Roman civil and canon law were usually dismissed scathingly as ‘lour ley’ – their law, not ours. ‘Nostre ley’ was nurtured in the courts of law and in the Inns of Court by men of common sense, men who listened to both sides, men of the world who married and had children and learned about human nature from people rather than scholastic books: ‘the great mediators’, in Maitland’s words, ‘between life and logic, a reasoning, reasonable element in the English nation’.”

With this spell-binding paper from Master Baker, we were launched upon a remarkable day. Mr Justice Rabinder Singh brought us eight hours later safely to the harbour of the European Convention. En route we had heard how the Charter can be seen within Judaism, Islam and in Hindumajority India. The story was by turns inspiring and admonitory. Nobody can now read with equanimity the clauses removing, with clinical precision, financial security from the Jews. (The Charter was one in a series of worsening measures imposed through the thirteenth century on England’s Jews, culminating in their expulsion in 1290). And it was chastening to hear how the Charter had still been used in the eighteenth century to stir anti-Semitic fears. Lord Dyson rounded off the day. As Master of the Rolls, he has historic responsibility for the charters in public ownership. His overview turned our eyes from the past, through the present and to the future: “ It seems to me that the equality of all religions under the state’s secular law is the best guarantee in a secular society of equal freedom for each religion and its adherents. Faith leaders no longer have the power that they once had. But they continue to have a very important role in promoting such equality of freedom as a fundamental and indispensable social good. The organisers of this conference hope that it will help all the United Kingdom’s faith communities, and others throughout the globe, to become the conciliatory peace making heirs of Stephen Langton although they do not enjoy the pervasive power of religion which he could take for granted.” Indeed we do. And we look forward to the publication of all the day’s papers by Cambridge University Press in spring 2015. Additional chapters will include a resonant plea from Master Sacks, tireless advocate in our own day of a covenantal understanding of society, for a recovery of the insights that inspired Archbishop Langton eight hundred years ago. We owe a great debt of gratitude to the Inns for making possible such a fruitful day, and to Vicky Portinari and her team for making all our visitors so welcome. In 1215, the king and barons met for incandescent negotiations in the Temple, at which the barons first demanded the king’s subordination to the rule of written law. From this demand, centuries ahead of its time, has grown the principle of those constitutional restraints on the executive which now protect two billion people who live under common law. All these centuries later, Mark Hill and I were privileged to introduce a far more genial and unified group of visitors to the past and present roles of the Inns and their Church. Maﬆer Griffith-Jones

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Magna Carta and the Temple

Ahead of the 800th anniversary celebrations of the sealing of Magna Carta, the Maﬆer of the Temple gives an account of the months of feverish negotiations leading to June 1215 and the pivotal role of William Marshal.

fter months of fruitless negotiations and in the face of a looming civil war, King John and the barons met in June 1215, on a small rise in the meadows at Runnymede, twenty miles west of London. The barons came fully armed. But the setting was well chosen; no cavalry on either side could attack across the surrounding soggy ground. An agreement was reached; its terms were written down in one great Charter and confirmed with the King’s seal. All these efforts would fail. Within months the country would again be split in internecine war. So why do we bother to read – let alone to celebrate – this Charter at all? Because in the middle of the Charter two rights are granted that have never been forgotten or superseded. “ No free man shall be taken or imprisoned or dispossessed or outlawed or exiled or in any way ruined, nor will we go or send 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 will we deny or delay the right to justice.” A powerful King could of course ignore such terms. But at the Charter’s end, all the rights that it granted were guaranteed by dramatic and enforceable restraints imposed on the King’s power: No wonder the King appealed to Rome to have the Charter annulled; and no wonder the Pope granted its abrogation. These months would have been far worse without the steadying influence of William Marshal, 1st Earl of Pembroke. William was the son of a minor lord who held the hereditary title of ‘Marshal’, or head of the king’s security. William rose, by his own skill, courage and loyalty in the service of four kings to be one of the most powerful men in Europe. His alone were the power and the stature that could avert a civil war. He remained loyal to the King, but urged him to seal the Charter. He would live both to see the Charter’s apparent failure and then, through the Charter itself, to bring the country once more to peace.

The Road to Runnymede

ebellion against a king was not unusual, but there was in 1212-15 no obvious rival to claim or to place on the English throne. The Temple was John’s London headquarters, and for a fraught week here at the Temple in January 1215, the barons confronted the King. They demanded a Charter, a set of written, practical demands raised to the level of principle. The King realised the threat to his own power; such a Charter would be a rival centre of allegiance and of sovereignty. He demanded in response that such barons swear fealty to him and undertake in writing never to seek such liberties again. Neither side gave way. John sought refuge in delay; such innovations, he said, would take time. The barons gave him warning: they were pledging themselves, one and all, as a wall of defence for the house of the Lord and would stand firm for the liberty of the Church and the realm. The barons distrusted the King. They were right to. During the negotiations themselves John sent emissaries (surely secretly) to the Pope. The barons’ emissaries were soon on their way to Rome as well; both sides knew they needed the Pope’s support. On 5 May, the rebel barons renounced their fealty to the King, and the country was on the brink of war. The King had the Pope and all apparent right on his side; a fair part of the baronage was at worst neutral, at best loyal; and on 9 May, once more from the Temple, the King sought the vital support of London by granting its free governance. The King must have thought himself well prepared. But on 17 May the rebels captured London and the balance of power moved suddenly and irrevocably against him; he would have to negotiate. He sent William Marshal to London to inform the barons. On 28 May, the King received the imperial regalia of his grandmother, the Empress Matilda, from the custody of the Master of the Temple. He was going to assert his full majesty at the coming conference. The barons came to Runnymede in arms. The King was there by 10 June, and the four known copies of the Charter all bear the date 15 June. The barons had secured enough to renew their homage, on 19 June, to the King. William Marshal’s heir was one of the twenty-five Surety Barons whose task was to check – and if need be to enforce – the King’s conformity to the Charter’s terms. So the great clauses, guaranteed by baronial power over the King himself, enter the history of England and of the world. The foundation stone was laid that week, on which all the liberties of the common law have been built in all the centuries since.

MAGNA CARTA AND THE TEMPLE INNER TEMPLE YEARBOOK 2014–2015

The Charter’s Survival: in the Balance

ohn died in October 1216. The King’s council named William Marshal as guardian (rector) of King Henry III, who was only nine years old, and of all the kingdom. Royal authority and the royal treasure were almost wholly exhausted. Louis of France had invaded, and controlled London and much of eastern England. William must win back the baron’s allegiance. Magna Carta was re-issued in 1216 and 1217, with emendations, under William’s own seal. It is in good measure thanks to William that the Charter survived. On his deathbed, William summoned Aymeric, Master of the Temple, to prepare for William’s own admission to the Templars. William’s almoner Geoffrey, a Templar, brought him the Templar cloak which had been secretly made for him a year before. William had arranged to be buried in front of the rood-screen in the Temple Church. Aymeric predeceased the sick marshal by just a few days, having asked to be buried next to him: “For I greatly loved his company on earth; may God grant that we be companions in the life eternal”. It is a measure of William’s achievement that his cortege was led to the Temple Church by former rebels, now pacified. The Archbishop of Canterbury and the Bishop of London presided when William was laid to rest here on 20 May 1219. Archbishop Langton described him as “the greatest knight that ever lived”. His effigy lies in the Round. Marshal’s heir (1190-1230), 2nd Earl of Pembroke, married the sister of Henry III and was himself buried in the Round Church; his effigy now lies beside his father’s. Our present Chancel was built ten years later to be the funerary chapel of Henry III and his Queen. It would take centuries to bring royal power, in 1689, under parliamentary control. Through long and terrible pangs, England’s democracy, the system of parliamentary government that has since spread across the world, was finally born.

Effigy of William Marshal (1146-1219), 1st Earl of Pembroke and greatest knight of his age, in the Round Church (before the damage of 1941).

ot everyone has been so taken with the rights granted by the Charter. Sellars and Yeatman sum them up briskly in 1066 and All That: The Barons compelled [King] John to sign the Magna Charter, which said:

©City of London

The London Charter, issued from the Temple, 9 May 1215. London retains the right to elect its Mayor on condition that the Mayor is presented to the Chief Justice on the day of the mayoral installation. This remains, to this day, the purpose of the Lord Mayor’s Show.

1. That no one was to be put to death – (except the Common People). 2. That everyone should be free – (except the Common People). 3. That everything should be of the same weight and measure throughout the Realm – (except the Common People). 4. That the Courts should be stationary, instead of following a very tiresome mediaeval official known as the King’s Person all over the country. 5. That no person should be fined “to his utter ruin” – (except the King’s Person). 6. That the Barons should not be tried except by a special jury of other Barons who would understand. Magna Charter was thus the chief cause of Democracy in England, and thus a Good Thing for everyone – (except the Common People).

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Collegiality, Conviviality and Civility by Maﬆer Simon and based (loosely) on a pre-dinner speech

ell, that was delicious … and most informative. The slightly cryptic reference is to two highly complementary aspects of this year’s Amity Dinner for the American Inns of Court. First, though certainly not foremost, the excellent kosher food that the Inn kindly arranges for me, which is consistent with what everyone agrees to be the gastronomic delights produced for the other attendees by the Inn’s own caterers. Secondly, from a slightly selfish perspective, the ease of opportunity to research first-hand a little more about how the various Inns ‘across the Pond’ work, in comparison with what we are used to here in Blighty. My interest in this subject was piqued by the need to give one of the Inn’s pre-dinner talks earlier this year. The subject, kindly suggested to me, was ‘Collegiality’, as the relevant event was the annual Mentors’ Dining Night. The Inn is fortunate in having a most efficiently co-ordinated and highly effective mentoring scheme (with thanks to Paul Clark in E&T), which is able to satisfy the full quota of calls on its services each year. Of course, this is but one of a number of schemes facilitated by the Inn with the aim of supporting our student members through the particularly challenging stages of professional studying and pupillage seeking. There can be no underestimating the benefit to students of the mentoring scheme. To have someone knowledgeable on the inside of the profession that they wish to join – and preferably still within the junior ranks thereof – offers the individual student a ready source of independent, informed and confidential advice and guidance. As the competition for pupillage continues unabated, such ‘professional’ input is invaluable, especially coming from someone unconnected with the student’s place of study or of law-related work. Although I have no direct, personal experience of working in any other profession, I do have regular opportunities to gain insight into how many of them are organised, particularly, though not limited to, those within the healthcare field. It seems to be incontrovertible that the role of an Inn of Court is rather unique. It is not the equivalent of a trade union, a task undertaken, for example, by the Bar Council and its equivalents elsewhere, although

the Inn rightly advocates on behalf of the profession in many spheres and justifiably seeks to exercise its influence at the highest level. It is also not a primary regulator, carrying out the functions of the Bar Standards Board or its counterparts. Yet, the four Inns of Court retain sole rights (and long may this continue) over Call to the Bar and one of their core functions, consistently carried out to the very highest standards, remains the education and training of aspiring, new and established practitioners. In one of its submissions to the Legal Education and Training Review, the Council of the Inns of Court outlined the role of the Inns as the provision of education and training, encompassing a continuum from widening access to the profession through to the ongoing professional development of established senior practitioners. The report also noted that whilst, historically, the internal emphasis at the Inns had been on learning by osmosis, augmented by networking through social activities such as dining with experienced members of the Bar, the current educational focus is now firmly aimed at developing the knowledge and skills necessary for practice as a barrister. Naturally, the Inns believe there is still great value in having personal and individual contact with knowledgeable practitioners and this is achieved through the compulsory qualifying sessions and skills training. In no other profession does there seem to be such a structured and regular coming together of those in the highest echelons of the Bar and the judiciary with students and the most junior of practitioners, with the former giving their time and their talents pro bono. This is clearly something precious and worthy of diligent preservation. This structure offers the would-be barrister from any walk of life a level of scaffolding in their early training and years of practice that, if it were better understood, could only contribute markedly to the social mobility aspect of widened access to the Bar as a career. One of my conversations at the Amity Dinner elicited the description that our American cousins had taken the best attributes of the Inn, tweaked them to fit their local legal landscape and moulded their own versions to suit their needs. The Inns of Court in the United States are understandably

COLLEGIALITY, CONVIVIALITY AND CIVILITY INNER TEMPLE YEARBOOK 2014–2015

different in many ways. They are voluntary, regional or for special interest groups and they are on a fraction of the scale of membership to that which we are accustomed. A brief analysis of the ‘basic creed’ for American Inns of Court offers the insight that there is much work done in these Inns to cultivate positive relationships as between judges and lawyers. The creed includes the following principles: “To foster a greater understanding of, and appreciation of, the [adversarial] system of dispute resolution in American law, with particular emphasis on ethics, civility, professionalism and legal skills; To provide significant education experiences that will improve and enhance the abilities of lawyers as counsellors and as advocates, and of judges as adjudicators and as judicial administrators; To promote interaction and collegiality among all legal professionals in order to minimise misapprehensions, misconceptions, and failures of communication that obstruct the effective practice of law; To facilitate the development of law students, recent law school graduates, and less experienced lawyers, as skilled participants in the American court system; To preserve and transmit ethical values from one generation of legal professionals to the next.” There is a good deal of emphasis on civility as between Bench and Bar, which may – or may not – come as a surprise. Interestingly, the educational emphasis seems to be as much

on improving the performance of attorneys as it is on elevating standards in judicial decision-making and conduct. The latter is, of course, not a problem that we experience in England and Wales and, in any event, there is always the Court of Appeal. One’s eye is drawn also in the creed to the desire to minimise misapprehensions and other failures of communication. I am given to understand, if American legal dramas are in any way representative of real life, that breakdowns in communication are not unknown. Students do feature, eventually, in the creed and they are welcome as members of the Inns, but there is no essential training function that causes them to be the focal point for the energies of the other members. It would seem that once successfully ensconced in chambers, it is easy for us to forget that the Bar remains predominantly a self-employed profession; a profession which knows in its collective heart that its continued health and vibrancy is predicated in no small measure on the need to keep replenishing its junior ranks with the very best candidates available, irrespective of socio-economic, cultural or other factors. Collegiality, which is so engrained in the life of the Inn, sustained by the unstinting dedication of Benchers, members and staff, plays a pivotal role not only in supporting aspiring barristers for their future but in safeguarding the very future of the Bar itself. Maﬆer Simon

“ Collegiality, which is so engrained in the life of the Inn, sustained by the unstinting dedication of Benchers, members and staff, plays a pivotal role not only in supporting aspiring barristers for their future but in safeguarding the very future of the Bar itself.” 125

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Maﬆer Dunn D

ecorated soldier, barrister and fearsome crossexaminer who shone in complex cases and became a Lord Justice of Appeal. Sir Robin Dunn, QC, a Lord Justice of Appeal in the early 1980s, was described by his contemporaries as “a towering figure in the law” who had “the slight aura of a Montgomery”. This was hardly surprising given his distinguished war service, in which he was thrice wounded, twice mentioned in despatches and awarded a Military Cross, the citation for which ran to two pages. One of the most deadly cross-examiners of his day, Dunn was unfailingly meticulous in his preparation of documents. His clarity of thought and remarkable memory were demonstrated by his ability to sit down and write – in crystal-clear longhand with hardly a pause – an opinion, a speech, a book about his family or stag hunting on Exmoor, with virtually no need for subsequent revision. As an advocate, he appeared in many high-profile cases with an emphasis on the commercial and the complex, and while still a junior he represented the actress Vivien Leigh in her successful divorce action against Laurence Olivier. He also acted for Florence Nagle, who eventually persuaded the Jockey Club – which hitherto had not granted licences to women – to grant her a licence to train racehorses in 1966;

By March 1941, he was in the Western Desert with 11th Royal Horse Artillery of the 1st Armoured Division. The desert battles ebbed to and fro, and Dunn received a shrapnel wound to his side. Dunn was wounded in the knee and left Tobruk in the last ambulance before the besieged port fell. He was mentioned in dispatches for his courage and tenacity as a forward observation officer directing the fire of guns in support of the armour and infantry, but his wound required his return to England. By early 1943, recovered and shortly to become a battery commander, he rejoined 7th Field Regiment in the 3rd Infantry Division training for the invasion of Normandy. The 3rd Division struck inland on D-Day with the aim of capturing the communication centre of Caen by last light. During the battle for Caen, his battery was in direct support of 1st Battalion the Royal Norfolk Regiment, which was assigned to capture Lebisey Wood, a strongly fortified enemy position just north of the town. He was at the side of the Norfolks’ commanding officer throughout the battle and swiftly changed the artillery fire plan when the infantry were held up by enemy mortars and automatic weapons. Directing the fire of first his own battery, then of 7th Regiment and finally of all 72 guns of the divisional artillery,

“Lay down the sword and take up the wig” and for the marathon walker Barbara Moore, who obtained damages of £1,000 after alleging that she had been libelled by a series of newspaper advertisements for food that she had consumed while on a celebrated walk from John O’Groats to Land’s End. Dunn’s best-known case during his four years as a Lord Justice of Appeal (1980 to 1984) was the Sidaway case, which concerned to what extent a surgeon had a duty to inform a patient of the inherent risks before an operation. Mrs Sidaway’s claim against Bethlem Royal Hospital, over damage to her spinal cord, was rejected in 1984; the court held that consent did not require an elaborate explanation of remote side effects. Robin Horace Walford Dunn was born in 1918 into a military family; his great-grandfather, Major-General William Dunn, served with D Troop, Royal Horse Artillery in the Peninsular War. At Wellington School, he excelled at athletics and wrote in 1936 of his anxiety about a visiting German hockey team, who had lined up in front of the Great Gate and shouted “Sieg heil!” three times after giving the Nazi salute. From Wellington, he went to the Royal Military Academy, Woolwich, where he won the Sword of Honour on passing out. He was commissioned in the Royal Artillery in 1938. He went to France with 7th Field Regiment RA, only just returning safely through Dunkirk in 1940.

he subdued the opposition, allowing the Norfolks to clear the wood with relatively few casualties. In the final minutes of the action, Dunn was wounded in the head but refused to leave the side of the Norfolks’ commanding officer until the infantry had reached their objective. For this action, he was awarded the Military Cross, but even then his war was not over. After recovering from this injury, he joined 4th Royal Horse Artillery to command a battery at the crossing of the Rhine in March 1945. When he returned home after the war, his fatherin-law, Sir Gunne Pilcher, later a High Court judge, helped him to, as Dunn put it, “lay down the sword and take up the wig”, a phrase he later used as the title for his autobiography, Sword and Wig: Memoirs of a Lord Justice. He was called to the Bar at Inner Temple in 1948, having passed his Bar exams by correspondence course while in the army. Shortly after Dunn joined Queen Elizabeth Building (QEB). When it was based in Fountain Court, it took on its first female tenant, Hazel Stuart, Lord Denning’s stepdaughter, who was later to become a leading expert on sovereign immunity.

MASTER DUNN INNER TEMPLE

Dunn was a keen member of the Pegasus Club, a hunting and point-to-point club for members of the Bar. As the club’s secretary, he once persuaded Edward Cazalet (later a High Court judge but then a student member of the Inner Temple) to ride a horse belonging to a friend of his in the Pegasus members’ race. The horse subsequently performed a somersault at the open ditch, heavily unseating its rider. Dunn visited Cazalet in the first aid tent and later invited him to become his pupil. Dunn took silk in 1962, and began to move into commercial work. A major breakthrough came in 1964 when a shipping case concerning the salvage of a cargo ship, the Medina Princess, was being heard in the Admiralty Court. Leading counsel for the shipowner, Gerald Gardiner, had to leave the case to become Lord Chancellor in a new Labour Government. Dunn was brought in as his substitute and made a major contribution to winning it. This led to his becoming much in demand in top commercial work. In 1969, the year he was knighted, he was invited to sit as a High Court judge in the old Probate, Divorce and Admiralty Division. Before accepting the appointment, he discussed it with his wife, Judy, who said, “Of course you must accept, but you must retire early so that we can have fun. Then we can have ten years hunting together on the moor.” Dunn agreed and stuck to the bargain. In 1974, he became presiding judge on the Western Circuit; he regarded his four years in this post as the highlight of his career. In 1980, he was appointed a Lord Justice of Appeal, where he quite often sat with Lord Denning, Master of the Rolls; the pair became good friends, and when Denning stepped down at the age of 83, Dunn was asked to make the speech at his farewell dinner. Sticking to his agreement with his first wife, Judy, Dunn retired in 1984, at 67. He continued hunting on Exmoor until the age of 80 and vigorously led the campaign against the National Trust when it sought to ban hunting on its land. Judy died in 1995; his eldest daughter, Jennifer, died in a car accident in 1963, only a few months after her wedding; his son, Allan, a horse trainer, died of cancer in 2001. He is survived by his other daughter, Janie, as well as his second wife, Joan, whom he married in 1997; she had been at school with his first wife and was a longstanding family friend. Dunn was an adoring father. His daughter Janie recalled much reading of Kipling and R S Surtees, and regular, highly enthusiastic (and competitive) games played with her father, ranging from battles with toy soldiers to stalking and chasing him all over Exmoor – a game the family called ‘stag and hounds’. Courtesy of The Times

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The Legal Economy

A thoughtpiece by the Chairman of the Legal Education Foundation, Maﬆer Beringer

he Lord Chancellor recently announced that there will be a Global Legal Summit in London in 2015. The occasion arises because 2015 is the 800th anniversary of Magna Carta. The underlying purpose of the summit is to “champion the UK as global leader in legal services and as a destination of choice for global business in the 21st Century”. If the summit is to achieve its objectives, there will need to be some clear goals for the legal economy in the intervening period. Without such goals, the summit will not be able to provide a story which can be put before the world. These goals need to go beyond the narrow focus on City firms and international arbitration which has tended to dominate government thinking on the legal economy. What might these additional goals be? We have the opportunity to show that the UK is the global leader in many ways: in the provision of affordable and accessible legal services; in the use of technology; in the provision of legal education and public legal education; in the training of judges; in advocacy training; in the rule of law, both in terms of studying it and embracing it; and in the understanding and teaching of ethics in the context of the law. The summit is a wonderful opportunity to show that leadership in the fields outlined above will translate into business opportunity and growth for the UK economy both domestically and internationally. The summit can also remedy three key failings that threaten our national economic recovery plans if they are not addressed but which will give competitive advantage if they are.

First: we are complacent about the rule of law and its significance to our society and our economy. We tend to assume that we can export the rule of law to other jurisdictions as of right and we tend to forget that we can only export something that exists and is of sound quality. Second: we have no measured understanding of what the legal economy is or what we would wish it to be. This leads us to a narrow focus on City law firms and international arbitration, both of which are important and easily measurable, whilst ignoring much of the broader legal economy. Third: we have no measured understanding of why the rule of law is a national business issue of comparable importance to, say, membership of the EU. The reason these issues matter is that our national economic health is heavily influenced by the state of the legal economy. The law is a financial and business issue as well as being a social and political one. The legal economy contains a diverse variety of organisations and businesses, and also offers a diverse set of benefits and earnings for those it employs and serves. It is well known that the law is a valuable source of export earnings as services are provided globally to international clients, and because foreign businesses choose the UK as a venue for resolution of their disputes. The rule of law is an integral part of the intangible attraction of the City of London as a centre for international trade and finance.

THE LEGAL ECONOMY INNER TEMPLE YEARBOOK 2014–2015

“ But if we have any national brand at all, our legal system and the rule of law is a vital part of it.” problem. It suggests, for example, that the civil legal aid budget would sit more logically in BIS than in the MoJ and that the focus should be more on outcomes and cross government savings rather than the bare legal services rendered and the time taken to provide them. It suggests also that the focus should be on the sustainability of the businesses providing the service and their investments in efficiency. Unless these problems are solved, we will not be able to deliver affordable legal services to a large part of society. This will be a problem irrespective of the size and scope of the legal aid budget. The summit should be a catalyst for finding these solutions, as without them, we would be displaying a threadbare tapestry to the world. It would be fair at this point to ask: “What does this domestic analysis of the wider legal economy have to do with the City, the international attraction of English law and the export of legal services?” The answer to this question lies in the rule of law and it, like the legal economy, needs wider understanding. Why do people, businesses and capital still come to London? One part of the answer is that it is a self-sustaining attraction – crowds gather where a crowd is forming. The attraction, however, has identifiable components. Two components high up the list are the rule of law and a justice system which draws no distinction between insiders and outsiders. Elites tend to disappear when they believe they hold their position as of right. Our national approach to the rule of law requires constant attention to avoid falling into this trap.

Image: Nasa

Less well observed, is the fact that the legal economy contains a very large number of SMEs (small and medium sized enterprises). Recent Law Society research shows that the part of the legal economy which comprises law firms and barristers’ chambers contains over 20,000 SMEs. It is clear that much of the focus of activity across government outside the Ministry of Justice has been on SMEs and their potential role as an engine of recovery for the economy. Many of these 20,000 SMEs lack investment in succession planning, technology, skills training, information and back office services. If they were engaged in any other sector of activity, there would be a concerted effort to assist them in obtaining investment, upgrading their skills and consolidating and becoming an engine for growth and employment. It is worth noting, that much effort in the SME end of the legal economy has been expended on the legal aid battlefield. There is, in fact, a growing problem which is not directly attributable to legal aid cuts. There is an increasing requirement within the legal economy for low cost legal services for people or organisations which can no longer afford to access legal services through conventional higher cost models. This requires new thinking and a new approach to discover the business solutions which must be incentivised and found. This need arises in areas which have not been part of the legal aid remit. It requires the legal economy version of Tech City. We require a proper analysis of the legal economy through a business lens. It is in part an SME problem. It is in part a technology problem. It is in part a consolidation

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Image: Nasa

If the UK begins to restrict judicial review, it may tarnish the rule of law. If a significant part of the citizenry cannot afford access to the civil justice system, that system will become discredited. These are economic issues because they could erode the position of the City. If we feel we need to have an environmental impact assessment for all new legislative measures because the environment is dear to us, why do we not have a rule of law impact assessment for all new legislative measures because the rule of law underpins our economy and the City? We are a society that depends on the rule of law commercially as well as socially. We are also a society which takes the rule of law for granted and that is like being a market leader in a business that is losing touch with its customers. The summit provides an opportunity to set ourselves the goals outlined above and to test ourselves against global best practice. If we are to survive this test, we need to take a more strategic view of the legal economy. This does not necessarily mean significant amounts of government funding, but we need at a minimum a government which has measured several aspects: the legal economy and its potential as a domestic business driver; the significance of the rule of law to our broader economy; and the potential of promoting English law and the UK as an attractive legal system and forum internationally. It may prove impossible to provide conventional measurements of intangible matters, but it is important to undergo the process of trying to measure them. It will then enable government to take strategic decisions about apparently unconnected matters which may otherwise impact the rule of law. Government can then identify where it should provide its support and effort. The promotion of Tech City is an interesting analogy. Many of its features could be applied to the need to develop a new approach to a technology based provision of legal services which will reintroduce many citizens to the civil justice system. The promotion of business angel groups and crowd funding could revolutionise provision of some legal aided services, if coupled with payment by results measured by cross government savings. The use of champions would provide an impetus for that change.

It should also be possible for government to find nascent areas of excellence and to recognise and encourage them. These might include: legal education; the Inns of Court, home of world class advocacy excellence; rule of law and human rights organisations; and the Judicial College, which underpins the international standing of our legal system. It is fair to say that the Government has recognised only the first of these areas as having potential for active promotion. We should also closely consider with universities and professional bodies the competitive advantage which would flow from making English law qualifications more accessible to foreign lawyers as part of their international legal education. At present the New York Bar qualification is widely viewed as a more attractive option to such lawyers than the English equivalents. We should use the period before the summit to devise and launch a more accessible international qualification. If an attractive route is offered to foreign lawyers, this would tie a larger part of the international legal world into the English legal system. Those in government may fairly say, “Why is this aimed at us? What about the market?” The answer is that the market is clearly responsible for doing many of these things itself and it should reap the benefits. But if we have any national brand at all, our legal system and the rule of law is a vital part of it. The maintenance of that brand is a matter of national interest. The summit gives us an opportunity to hold our own feet to the fire in determining whether we are guarding that brand closely enough. We are fortunate that we possess a global currency: it is not a financial one but it is what the financial markets would call a stapled product. It is the stapling of English law and the rule of law. We have been selling it for centuries. There is a gentle irony in the fact that Magna Carta requires that we ‘sell to no man either justice or right’, but it is a little late to worry about that. We need to understand that this reaches down through the whole of our legal system and society and is an economic issue. We must, as the marketing people say, live the brand if we wish it to flourish.

Maﬆer Beringer

INNER TEMPLE YEARBOOK 2014–2015

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The Murder of Julia Wallace Maﬆer James offers an original and compelling solution to a murder that has perplexed writers for decades. This is an abridged version of an article originally published in The Sunday Times Magazine on 27 October 2013.

he murder of Julia Wallace in Liverpool on 20th January 1931 is probably the most mysterious capital crime of the decades following the Second World War. The case has always intrigued me, but I certainly hadn’t envisaged adding my voice to the many who had discussed the mystery, particularly as I had then nothing original to contribute. But this changed in December 2010 when I was due to give a talk on Murder in Fact and Fiction, a subject which inevitably took me back to the Wallace case. Suddenly, a solution to the mystery came into my mind with the strength of an absolute conviction. Returning to published accounts of the crime, I found that it satisfied all the queries and anomalies. I am not putting it forward as the final solution. Officially the Wallace case remains unsolved. Before describing the conviction about the crime that came to me, it is necessary to set out the main facts. The Wallaces moved to 29 Wolverton Street in the summer of 1915, two years after their marriage. Wallace was a sick man; one kidney had been removed some years earlier and the other was diseased. Despite this, for fifteen years Wallace had been employed by the Prudential Assurance Company, his job being to collect the insurance premiums, trudging round the neighbouring district of Clubmoor. An intelligent, well-educated man, he was highly regarded by his employers, but apparently not to the extent of promoting him to a job more worthy of his undoubted ability. He was something of an intellectual manqué, fond of philosophy and strongly influenced by the stoics. His other intellectual interest was in science and one of the three bedrooms in 29 Wolverton Street had been converted by him into a small laboratory in which he could undertake experiments. Fond of chess, he was a member of the Liverpool Central Chess Club, held at the City Cafe, but was never more than a mediocre player. His wife, a frail woman who did not share his intellectual enthusiasms, was a housewife. An amateur pianist and painter, she had enjoyed an agreeable social life and was regarded as a popular and talented independent woman. 29 Wolverton Street was a two storey terraced house typical of many in that area of Liverpool. To the right of the entrance was the gas-fire heated front room, with its lacecurtained bay window facing Wolverton Street. It was in this room that Wallace and his wife shared the occasional musical evening in which she played the piano and he attempted to

THE MURDER OF JULIA WALLACE INNER TEMPLE YEARBOOK 2014–2015

play his violin. To the rear was the kitchen which served as a sitting room. The back kitchen behind it, where cooking, washing up and other domestic jobs were done, had a door leading to a back yard and a further door leading out to a passage which ran behind all the houses in the row. It was therefore possible to enter the house either through the yard and the back kitchen or through the front door, a fact that was to play an important part in the murder investigation. The first steps in the tragedy were taken on the evening of Monday 19th January 1931, when Wallace set out on a cold sleety evening to fulfil an engagement at the Central Chess Club. A list on the notice-board in the City Cafe in which the chess club met showed the name of his opponent and when the two were due to play. At 7.15, a telephone call was made to the club from a public call box in the Anfield district of the city. The call was taken by a waitress who passed the phone to Mr Beattie, the captain of the club. He explained to the caller that Mr Wallace was not there, and suggested he ring again later. The voice at the end of the line explained that he was too busy because, “he had his girl’s twenty-first birthday on and he wanted to do something for her in the way of business”. He named Wallace particularly, and asked that he call round the following evening at 7.30, giving the address as 25 Menlove Gardens East, and the name R M Qualtrough. When Wallace arrived, he was given the message and there was some talk about the best way to get to Menlove Gardens East. In his evidence at his trial he said that he had discussed the matter fully with his wife before deciding whether to set out for the appointment. The next evening, at six minutes past seven, Wallace boarded his first tram, later, on the advice of the conductor, transferring to a second which took him to Menlove Gardens West. Thereafter he began his search for Mr Qualtrough, speaking to seven people in addition to the two tram conductors, and occasionally following his enquiry by checking the time with them. If he were in the process of establishing an alibi he certainly did it diligently. Just before eight o’clock, he consulted a news agent who convinced him that there was no Menlove Gardens East, and he began his journey home. When Wallace arrived at 29 Wolverton Street at 8.45pm, his neighbours, Mr and Mrs Johnston, were going out for the evening and saw Wallace walking towards his backyard door. He asked whether they had heard any unusual sounds that evening, to which they replied that they had not. He said that on returning home he had tried to enter by the front door with his key, but the door was bolted against him. He had then tried the back door but was unable to open it. It was then that Wallace managed to open the door and asked the Johnstons to wait while he checked the house. After a short time, Wallace came into the yard and said, “Come and see. She has been killed”. The body of Julia Wallace was sprawled diagonally in front of the gas fire, her feet almost touching the fender, her head some eighteen inches from the open door. She was lying in a pool of blood and a huge wound above the left ear revealed bone and brains. A blood-stained mackintosh, identified by Wallace as his, was tucked beneath Julia’s right shoulder. Mr Johnston declared that he was going to the police and that nothing should be disturbed. Wallace said, “Get the police and a doctor. But I don’t think it’s much use. They’ve finished her”. At about ten past nine there was a knock on the front door. The policeman came in and the investigation of Julia Wallace’s murder was underway. By five past ten, members of the Criminal Investigation Department had arrived. The pathologist, Professor J E W MacFall, had already been summoned, and by ten past ten was examining Julia’s body. Professor MacFall was known as one of the most impressive

practitioners in his field, an opinion which he shared. Despite his wide experience of murder, Professor MacFall was surprisingly negligent at the scene. He was of the opinion that death had occurred four hours before. But some of the usual and vital procedures were not carried out, including taking the temperature of the body at the scene, and the time of death was always in doubt. In his book, Wallace; the Final Verdict, Roger Wilkes writes of Wallace’s visit to the chess club: “One thing was for certain. The following night, 20 January, Qualtrough would murder Julia Wallace”. This was the view of the police and of everyone officially connected with, or interested in, the crime. The search for the murderer was the search for Qualtrough. No motive for Wallace was put forward and no weapon was found. The last person to see Julia was a fourteen year old milk boy, Alan Close, who said that he had delivered the milk between half-past six and a quarter to seven. In the police’s view, three of the most compelling arguments against Wallace were, firstly, that Julia was killed having prepared the front room for a musical evening. Wallace testified at his trial that he had discussed the Qualtrough case with her, so why had she expected her husband to be at home? Secondly, was Wallace’s prolonged search for Menlove Gardens East and his constant checking of the time, which the police were convinced was intended to provide an alibi. Thirdly, on 22nd January, when Wallace had been at police headquarters until well after ten o’clock and had left, he saw Samuel Beattie and James Caird from the chess club. After asking Mr Beattie whether he could be more definite about the time he received Qualtrough’s call, which Mr Beattie could not, Wallace went on to say that he had just left the police who had cleared him. This was before he had been officially named as a suspect, although as an intelligent man he must have known that if a wife is the victim, the husband is usually among the first to be suspected. Not surprisingly, the committal proceedings resulted in

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Wallace being committed for trial to the Crown Court at the spring assizes. Mr Justice Wright was the trial judge, Roland Oliver KC was counsel for the defence and Edward Hemmerde KC, the Recorder of Liverpool, led for the Crown. Like the conduct of the investigation, the trial has been strongly criticised and there seems little doubt that the jury was prejudiced and some members inattentive. Mr Justice Wright summed up strongly for a not guilty verdict. He said, “The whole crime was so skilfully devised, and so skilfully executed, and there is such an absence of any trace to incriminate anybody, as to make it very difficult to say, although it is entirely a matter for you, that it can be brought home to anybody in particular.” The judge could hardly have made his own opinion more clear. However, the jury were absent for only an hour before returning a verdict of guilty. From that moment onwards there was general unhappiness and concern about the verdict. An appeal was lodged. The Vice-Dean of Liverpool Cathedral wrote a prayer that the judges of the Appeal Court should be “guided in true judgement”, which was to be used at every service in the diocese. The defence lawyers were not sanguine about the result but, on 19th May, the Court of Appeal quashed the conviction on the grounds that “the case against the appellant… was not proved with that certainty which is necessary in order to justify a verdict of guilty”. In other words, the jury had got it wrong. This at the time was an unprecedented decision. Wallace found the antipathy towards him was too strong and vicious to be borne and retired to a bungalow across the Mersey where he died two years later. Part 4 of Roger Wilkes’s book begins with the sentence, “William Herbert Wallace died a broken man. And an innocent one.” The name of the killer: Richard Gordon Parry. Mr Wilkes was convinced not only that Gordon Parry was the murderer, but that there was a conspiracy of silence on the part of powerful people in the community to conceal the truth. Richard Gordon Parry was twenty-two years old at the time of the murder. He seems to have been something of a jack-the-lad, popular, but with a police record and a

reputation for being unreliable with money. He was an accomplished amateur actor and was unofficially engaged to an attractive young woman called Lily Lloyd, a pianist at the local cinema. He was a petty crook who was known to live above his income and was short of money; he would know that there would be cash at 29 Wolverton Street and probably where it was kept; he had deputised for Wallace at a time when Wallace was ill but there were discrepancies in the amount paid in and Wallace had reported him to the Prudential, depriving him of a job; he had the use of a car, which would have been a convenient way of escaping after the murder; as a member of an amateur dramatic society which met at the City Cafe, he could have seen the notice showing chess fixtures; in addition, as an actor, he would have no difficulty in disguising his voice. He had been provided with an alibi for late in the day of the murder by Lily Lloyd, whom he later jilted, an alibi which she eventually withdrew. But the strongest evidence came from John Parkes. In January 1931, when he was twenty-four and worked at an all-night garage, Parry was one of the clients who would occasionally drop in for a late-night drink or chat. On the evening of 20th January, Parry arrived with a car which he said he needed to be thoroughly cleaned. This Parkes did. When doing this, he saw a glove inside a box in the car and pulled it out to stop it getting wet. It was covered in blood and Parry, snatching it from him, said, “If the police found that, it would hang me!” Parkes stated that he was too terrified of Parry to get in touch with the police at the time and that his boss, when told of the incident, had decided that they should await developments. When, later, they did report Parry’s visit, the police did not take it seriously. I, too, find this story unconvincing. If Parkes was terrified of Parry, as he claimed, the sensible action would not have been to destroy the evidence but to go to the garage office where the money and records were likely to be kept, lock the door and telephone the police. Parkes must have realised that, once he had reported what had happened, he would be safe. The story seems far more likely to have been Parry

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indulging his self-aggrandisement, capacity for mischief and the desire to be always the centre of attention, and it is surely certain that he would not have acted in this extraordinary way if he had not been convinced that he had an unbreakable alibi. It has always seemed to me that, for a prospective murderer, Qualtrough was curiously unintelligent and unimaginative. He could not reasonably take it for granted that his scheme would succeed. Surely a genuine prospective customer, told that Wallace was expected at the club, would have rung back later as Mr Beattie suggested. Wallace would have had the whole of Tuesday in which he could consult a local map to check the precise location of Menlove Gardens East, or telephone the Prudential headquarters to discover what if anything was known about this promising prospective client. Any prudent man hoping for a lucrative sale would have done this, and Wallace was prudent and conscientious. Most importantly, a prospective thief would have no need of such a complicated and dubious plan. Anyone planning to rob Wallace of his comparatively paltry possessions could do so any day when he was out collecting or dispensing insurance money. Qualtrough’s telephone call, so far from being a carefully and cleverly thought out scheme for murder, far more resembled a sick joke, and the conviction that came so strongly to me in 2010 was that Qualtrough’s call was exactly that, a sick and malicious joke. I believe Roger Wilkes is right in saying that Richard Gordon Parry was Qualtrough, but his intention was not murder, nor indeed theft, but a plan to take petty revenge on Wallace for losing him his job with the Prudential. The Qualtrough call was the first step in Parry’s plan to send an ageing and sick man travelling though the cold winter’s night in the hope of an important commission, only for him to realise that an enemy was laughing at him for being a fool. Even if his victim decided not to take the bait, he would be left wondering if he had lost the chance of a commission which could have changed his life for the better. The news next day that Julia had been murdered must have appalled and frightened Parry. He knew that he could not tell the truth without being regarded as a prime suspect and there seems no doubt that the police, without knowing that he was Qualtrough, did investigate him thoroughly and that the alibi he produced held. Even so, to confess his part would brand him as the man ultimately responsible for what had happened, whether or not he was the main culprit. So he said nothing and awaited events. There are two obviously salient facts covering the period between Wallace’s return home and the arrival of the police: the state of the room and the position of the body when discovered, and the nature of the attack. It was obvious that Mrs Wallace was preparing the front room for an evening of music, presumably with her husband. Secondly, the frenzied nature of the attack. A burglar would have needed only one blow to have killed so fragile a woman. Whoever killed Julia Wallace was activated by a frenzy of hatred or fear, or a mixture of both. One suggestion in Roger Wilkes’s account strikes me as particularly intriguing because it bears on the central problem, the time Julia died. Junior Crown Counsel, Mr Leslie Walsh, said that he did not think that Mr Edward Hemmerde KC, Prosecuting Counsel, believed that Mrs Wallace had been seen by the milk-boy between 6.30 and 6.45, as the boy testified, and nor did he. The person the boy had spoken to was Wallace impersonating his wife, wearing one of her dresses and a hat. That would have accounted for the upstairs bedroom being in such disarray, which otherwise seems inexplicable as the work of a burglar. I originally rejected this idea as being ludicrous, but returning to the plan of the house it seems to me perfectly

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possible. It was an evening in winter and it would have been dark. Inside the front door was a vestibule and beyond it the passageway to the kitchen from which the gaslight would have been coming but only faintly, and it is probable that the part seen by the boy would be an arm and hand quickly taking in the can of milk and returning the empty can. He expected to see Mrs Wallace and it was Mrs Wallace whom he saw. I think it very likely that Professor MacFall was right in putting the time of death closer to six than seven, which would have given Wallace adequate time to clean himself before leaving the house. From the beginning there has hung about this case the suggestion that vital information was withheld by the police. There seems little doubt that some people knew more than was revealed and I think it highly likely that certain police officers knew that Richard Gordon Parry had made the Qualtrough call. Undoubtedly Parry would have denied this absolutely while there was a danger he would have been regarded as a suspect. On the contrary, a confession by Parry to being Qualtrough would have ensured Wallace’s conviction. If Qualtrough was indeed merely a prankster with no thought of murder or theft, the only serious suspect left was Wallace himself. The belief that R M Qualtrough’s telephone call was a malicious joke came to me with such absolute conviction that I wondered why none of the writers who had studied the crime had arrived at the same idea. It may be that someone has come to the same conclusion as myself but has not put it into print, or that I have somehow missed it in my reading. If I am the first, the reason is, I think, that no rational person could possibly believe the coincidence that Wallace had decided to murder his wife on the same evening that a prankster had conveniently lured him from home and provided him with an alibi. The answer is that we have absolutely no evidence as to when Wallace decided to murder his wife. It may be that the idea was at the back of his mind, an escape route which he took some comfort in pondering over but had no real intention of using, and it is interesting that after the murder he pointed out that had he planned to murder Julia, he had plenty of means of getting rid of her in his upstairs laboratory. If he did have this in mind, he would quickly have realised that if Julia had died from poisoning, particularly from being given any of the substances in the house, his arrest would be speedy and the outcome inevitable. So when did Wallace decide to murder his wife and attempt to free himself from a life that had become intolerable? It could have been on the Monday evening when he left the chess club but I think it more likely that the fatal moment of decision took place when he reached home on the evening of the following day and had told Julia that he proposed to keep the appointment with Qualtrough.

Julia might well have reiterated complaints with which he was familiar – the drabness of her life and her home, the lack of real friends, the humiliation of his demeaning job, the shortage of money. And now he was proposing to leave her unprotected while he pursued yet another prospect that would end in the usual failure. He could have pretended to give way, agreed that he would stay at home, and ordered her to prepare the front room for one of their musical evenings. Then, when she was in the kitchen, he could have armed himself with the iron rod from beside the fire, gone upstairs to remove his outer clothing, put on his mackintosh to protect him from blood and returned to murder Julia when she had made the room ready, including placing his violin over a chair, and having lit the gas fire. Perhaps when he struck the first tremendous blow which killed her, and the ten afterwards delivered with such force, it was years of striving and constant disappointment that he was obliterating. Perhaps a carefully constructed dam of stoicism had at last been breached, and what he was destroying were the failures, the humiliations, the existence to which he had brought his wife, the lack of hope for the future, the increasing pain and the knowledge that he was a dying man. That cluttered kitchen which could have been a warm domestic refuge for a couple who loved and were at peace with each other had become a cauldron of disappointment, hatred and despair. In the end justice was done, if only the fallible justice of men. The jury were right in finding Wallace guilty and the Court of Appeal right in quashing the conviction. The truth about what lives were lived in that cluttered kitchen will never now be known. Perhaps the Church, quoting the Apostle Paul in the prayer written before Wallace’s appeal, has the last word; an enigma to end an enigma.

INNER TEMPLE

Inner Temple Library Facilities and Services The Library is open to all members of the Inner Temple and to members of the other Inns of Court. It is a reference Library, staffed by experienced information professionals, which offers users access to a wide range of print and electronic resources in a comfortable working environment. The Library offers the following facilities and services:

• assistance with online searching and legal research • AccessToLaw, a gateway site providing annotated links to selected UK, Commonwealth and worldwide legal websites (www. accesstolaw.com) • Current Awareness blog for legal news, changes in legislation and new case law (www. innertemplelibrary.com) • quarterly electronic newsletter

• a quiet environment for study, with over 90 reader places • a reference library of over 80,000 volumes, including the most up-to-date editions of major practitioner texts

• a Facebook page with information on Library services, news and events (www.facebook.com/ innertemplelibrary) • legal research FAQs on our website

• a comprehensive archive of old editions of practitioners’ works

• range of guides available in the Library or for downloading from our website

• specialist Commonwealth & Scottish collections

• equipment and software for users with hearing or visual impairment

• an enquiry service (in person, by telephone and by email) • tours for students and pupils, plus a virtual tour on our website • legal research training for pupils • photocopying facilities • a document supply service for barristers in chambers • internet access to the catalogues of all four Inn Libraries • free web access within the Library for legal research (including subscription-based services) • computers available for word processing and access to email

Details of the Library’s collections, services and contact details are on our website at www.innertemplelibrary.org.uk.

Opening Hours The Library’s opening hours are as follows: During Legal Terms: Monday – Thursday 9.00am – 8.00pm and Friday 9.00am – 7.00pm; Saturday 10.00am – 5.00pm on one Saturday in four (on a rota with the other Inn Libraries). Outside Legal Terms: The Library closes at Bank Holiday periods and for the second half of August. For the remainder of August and September the hours are Monday – Friday 9.00am – 5.30pm.

• Wi-Fi access

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The Cardinal, the Law and the Smiling Elephant by the Sub-Treasurer, Patrick Maddams

The Jackdaw sat on the Cardinal’s chair Bishop and Abbott and Prior were there Many a monk and many a friar Many a knight and many a squire With a great many more of lesser degree In sooth a goodly company. Richard Harris Barham, 1788–1845

here cannot be many legal institutions, apart from those of the Catholic Church, that can claim to have a Cardinal amongst their membership, and Inner Temple must certainly be the only one that can claim to have two. On 18 May 2000, the feast day of St Felix of Spoleto, Cardinal Cormac Murphy-O’ Connor was admitted as an Honorary Bencher, and on 16 July 2009, the feast day of St Jerome of Pavia, his successor as Archbishop of Westminster, the Rt Rev’d Vincent Nichols, was also admitted as an Honorary Bencher. To those of us not familiar with the Catholic hierarchy, the difference between an Archbishop and Cardinal must seem as opaque as that between the Chancellor of the High Court and President of the Queen’s Bench Division. They are both ancient and important offices, and the current holders in each category command great respect and affection amongst those they seek to serve and lead. “Servus servi Dei, Servus servi Legi” Servant of the servants of God, Servant of the servants of the Law. Another similarity is that both are installed at colourful and grand ceremonies in court and cathedral respectively, and this is how the Sub-Treasurer, representing the Inn, found himself in Rome on the weekend of 22 February, the Feast of the Chair of Peter – a feast full of symbolism most relevant to the creation of new Cardinals – to witness the admission of Master Nichols to the Sacred College of Cardinals. The ceremony is known as the Ordinary Public Consistory, and

was held in St Peter’s Basilica, presided over by His Holiness the Pope, ‘Papa Francesco’, the first of such appointments in his papacy. “ Full in the panting heart of Rome, Beneath the Apostles crowning dome” Cardinal Wiseman, Archbishop of Westminster, 1802–1865 Cardinals, who wear red hats and robes, are the most senior clergymen in the Catholic Church, below the Pope, and are eligible to take part in the election of future Popes until they reach the age of 80. No such restrictions apply to the Inn’s Governing Benchers when it comes to electing the Treasurer. But neither is the fireplace in the Sub-Treasurer’s office used to send up the white smoke. Master Nichols was one of 19 new Cardinals to receive the red biretta from the Pope, who also gives each one a cardinalatial ring. Master Nichols has noted that relatively few new Cardinals were from European countries, with many from Africa, Asia and South America, thereby broadening the perspective of those who advise His Holiness. The following day, 18 Cardinals concelebrated Mass with the Pope under Bernini’s awesome bronze baldacchino with a packed congregation inside St Peter’s and an even greater one in the sunny piazza outside, assisted by huge digital Sony screens. Here the fan clubs of each new Cardinal waved their flags and shouted joyously as their local hero came ‘on screen’. Many a monk and indeed many a nun temporarily put any notion of humility to one side, with much hugging and dancing, ably assisted by several Scots who were still up following their victory over Italy the previous night in the Six Nations Cup. A most confusing mix of kilts and cassocks. A word also about the glories of the Vatican’s music. Very traditional of course but majestic nonetheless, with double brass quintets in the style of Gabrieli to accompany the Sistine Choir in the anthems and chants of the Roman liturgy. “ Vere sanctus es, Domine Et merito te laudat omnis a te condita creatura” You are indeed Holy, O Lord, and all you have created rightly give you praise.

THE CARDINAL, THE LAW AND THE SMILING ELEPHANT INNER TEMPLE YEARBOOK 2014–2015

Photo: Johann Kleindl

And for those of us who could not get enough there was then a performance of Bach’s B Minor Mass, conducted by Antonio Pappano, at the Accademia Nazionale di Santa Cecilia, the only piece of modern architecture we experienced all weekend. Which brings us to the smiling elephant. Each Cardinal is allocated a church in Rome to be their home from home, so to speak, whenever they are visiting. Most are grand baroque masterpieces but Master Cormac Murphy-O’Connor resides at the titular church of Santa Maria Sopra Minerva, just round the corner from the Pantheon. It is of an earlier Gothic origin, and built over the ruins of a temple to Minerva from classical times. It houses the tomb of Fra’ Angelico and is adorned with works by Michelangelo and Lippi, a rogue if ever there was one, abducting a young nun to his home in Spoleto. On a darker note, it was for a while a court of the Inquisition and where Galileo was hauled up in 1633 for violating an order not to teach the Copernican theory, that the earth and other planets orbit the sun rather than that the sun and other planets orbit an earth at the centre of the universe. Outside is one of the most curious monuments in Rome, an ancient obelisk mounted on top of a smiling elephant, another of Bernini’s creations. The inscription at its base might well come from our Code of Conduct. It reads, in translation: “ A strong mind is needed to support a certain knowledge.” Here, on the evening before the Vatican ceremonies, our senior Cardinal celebrated Mass with the many bishops and clergy from England and Wales who had come to participate in the festivities. The restaurants of the Piazza Navona

provided a secular ending to a spiritual evening for clergy and laity alike. Our new Cardinal has been given as his Roman home the Church of the Most Holy Redeemer and St Alphonsus, dedicated to the founder of the Redemptorist Order, and designed by a Scottish architect, George Wigley. Try to visit both titular churches when next you visit Rome. They are charming in equal measure and you will be assured of a warm welcome, as you will in their other ‘titular’ home, the Temple Church, where, as a Bencher of the Inner Temple, the Cardinal delivered a profound and moving sermon at Choral Evensong on 7 July to commemorate the anniversary of St Thomas More’s execution (6 July 1535). One final reflection: the late Lord Clark in his magisterial TV series, Civilisation: a Personal View, said that he doubted that any great idea which had shaped our society had ever been conceived in a large room, except perhaps for the reading room at the British Library. The Vatican ceremonies, and the cathedrals and palazzi which host them, are designed to dazzle and this they do in an awesome way. You are rarely alone and more likely to be in a crowd. The liturgy, the red and golden vestments, the soaring polyphony and the profumo incense all convey a sense of immense grandeur and majesty. And yet this author found the small quiet voice within was not overwhelmed. Was it the gentle speaking voice of the Pope, was it the companionship of a close friend, or was it a brief glimpse that the world is not always as it appears – a message from the Vatican for a modern uncertain age. “There is need of only one thing.” (Luke 10:42) Sub-Treasurer

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Sermon for Choral Evensong in the Temple Church

Celebrating the anniversary of the death of St Thomas More by HE Cardinal Vincent Nichols on 7 July 2014

am most grateful for your kind invitation to take part in this Choral Evensong and to preach here in the Temple Church, the Mother Church of the Common Law. I appreciate, too, that this occasion is marking the anniversary of the death of St Thomas More, on 6 July 1535. I apologise for my late arrival. May I begin with a personal reflection. As a boy I did not cry very much. But I remember vividly some occasions on which I did cry. And they were mostly connected not with physical pain but with a deep sense of an injustice being done. They were childhood things. I remember one occasion crying with frustration that I was being burdened with a very unfair proportion of task and duty. It was simply not right! I also remember, and know for sure, that children on the whole do not object to being punished, as long as they know and accept the reason for that punishment. But nothing rankles more deeply than an unjust punishment! Where do these strong instincts for justice come from? What has ingrained them so deeply into our hearts? A clue lies in the first reading, from the Book of Exodus, that we have just heard. It was announced as being taken from Chapter 23. But that is not entirely true. The first two lines are, in fact, an import from Chapter 20. Why does that matter? Listen again to those two lines: “And the Lord said unto Moses, ‘Thou shalt say unto the children of Israel: Ye have seen that I have talked to you from heaven.’” These two lines introduce, in Chapter 20, a long list of legal requirements, a list that goes on right into Chapter 23 and the passage we heard concerning duties towards one neighbour and other requirements of the law. These two lines are important, and have been placed at the head of our reading, because without them the list of commands makes no real sense. Unless these commands and requirements are rooted in something outside of ourselves they are nothing more than a list of arbitrary opinions, a selection of views as to what should be done. But when they are framed by the words, “Ye have seen that I have talked to you from heaven”, then they have a source and a solidity that command our attention and our observance. This was the point made by Pope Benedict XVI in his speech in Westminster Hall in September 2010. He

put forward the necessity of law and obligation having an objective quality, one that is indeed accessible to reason, especially when reason is illuminated by faith. Such an objective order takes us beyond ourselves into a realm of solid principle, which provides the foundation for our law. Without such a foundation, Pope Benedict explained, “the moral principles underpinning the democratic process are themselves determined by nothing more solid than social consensus.” Then he said, “Herein lies the real challenge for democracy.” He illustrated his point by reference to “the lack of solid ethical foundations” for economic activity which contributed so significantly to the financial crisis. He referred also to the “totalitarian ideologies of the twentieth century”, which had wreaked such havoc and yet had gained a kind of “social consensus”. The “word spoken from heaven” then helps us to seek and grasp these solid foundations of the ethical order and thereby casts crucial light on how we should behave in our desire to live together constructively. And the “word spoken from heaven” also helps me to understand my own longing for justice and my burning sense of injustice. This too comes from God in whose image and likeness my inner being is made. Let me put it like this. The goodness of God – and God is infinite goodness – can only offer resistance to evil. The goodness of God is never indifferent. It “detests” evil, which is the corruption of the goodness which is the very essence of God. This is what the Bible means when it speaks of the “wrath of God.” And this wrath is faintly reflected in my tears of frustration and anger at perceived injustice in my life and in my world, just as my desire for justice is rooted in a reflection of the goodness of God imprinted on my soul. But God’s wrath is not, like mine, an upsurge of rage or of angry intervention. It is pure resistance to evil as such. Its focus is the injustice. Its desire is the generation of good. That is why we are always taught not only about the wrath of God but also about the mercy of God. God’s wrath is always tempered by mercy. But that mercy is not a kind of liberal laissez-faire attitude, one that suggests that our waywardness,

SERMON FOR CHORAL EVENSONG INNER TEMPLE YEARBOOK 2014–2015

our misbehaviour, doesn’t really matter. Rather, God’s mercy is a holding back so that there is space for the errant one to amend his or her ways. God’s mercy is the provision of space for forgiveness and redemption. It is not for me to comment here on the exercise of jurisprudence which is your profession, nor on the work of the courts, nor on patterns of sentencing, nor on the purpose or effectiveness of our prison system. All I know is that, like all human efforts, they are most often noble and nearly always flawed. With our best efforts we approximate the justice of God and we attempt, sometimes, to express God’s mercy, too. In doing this, we – you – give honour to the Creator, the God of infinite justice and unending mercy.

“ Ye have seen that I have talked to you from heaven.” These words find their fulfilment in the incarnation of the Eternal Word of God in the person of Jesus of Nazareth. That is the heart of our Christian faith – that in Jesus is the full expression of the life and truth of God. The justice and mercy of God, then, are also made flesh in Jesus, in his teachings and most clearly in his death and resurrection. In the death of Jesus, a punishment freely accepted, he gives his total identification with our broken world. In his resurrection from death he gives the ultimate promise of the fruit of God’s mercy, our forgiveness and fulfilment in the life God for all eternity. In presenting this core message of the Gospel to the people of Rome, Paul does not hesitate to use the language and imagery of the law and its processes. He does so because the Romans were proud of their law. Their boast was the pax Romana, the fruit of that legal system. But Paul’s appeal, his proclamation, is that in Christ there is something greater than the law. He insists that what Christ brings is a justice beyond our justice and a mercy beyond our mercy. If Jesus ultimately delivers us from our sins, our offences, who then shall impeach us? This is a law and a justice that is stronger than all evil, than every crime. “Nothing, therefore, can separate us from the love of God, made visible in Jesus”, says Paul. He lists the evils that are overcome, a list of all the horrors of our world, a list that those of you who practice law may well be acquainted with. But none of them is stronger than the fidelity of God to the goodness of his creation. Today, we recall the execution of St Thomas More. A few months ago I spent some time in his cell in the Tower, alongside the Bishop of London. Together we prayed and reflected on the time that More spent in that cell, a time of increasing hardship as the powers of the day tried to break his spirit and his will. But his trust in the fidelity of God was stronger than all else and despite dreadful cold, dampness, deprivation and oncoming illness he did not break, clinging to his Saviour and the trustworthiness of his promises. The Hebrew stem of the word fidelity is the word aman. It means, literally, to stand firm. And from that same word comes our word Amen, the word by which we give our consent to the will of God, the word by which we express our belief, by which we say, “Yes, I believe.” This evening as we say Amen, let it be an expression of our trust in God’s graciousness, fidelity and boundless mercy, for in such faith we are given a firm place on which to stand, a reliable place in which to live. Amen. HE Cardinal Vincent Nichols

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INNER TEMPLE CELEBRATE THE LIFE

Maﬆer Hyland

by Maﬆer Williamson

raham Hyland, who has recently died aged only 59, was known as a charmer with an irresistible personality. Born in Halifax in 1955, he attended Heath Grammar and showed early promise as a chorister. He was due to apply for a choral scholarship to St John’s, Cambridge, but nature had other ideas and his voice broke. His ambitions were thwarted, but only temporarily. He contemplated a career as a Shakespearean actor while also weighing up the possibility of entering Cambridge for Anglo-Saxon and Nordic studies. The obscurity of the subject would, he felt, narrow the size and quality of the

with the students well into the early hours. Veterans of those courses will remember him as a man of great enthusiasm, wit and verve. He was not just a great advocate but a passionate and assured public speaker who could apply his abilities to any occasion. He was elected Bencher of the Inner Temple in 2007. He is remembered with affection not just by colleagues and family but by the Friendly Brass Band, based in Halifax, whose members were honoured to play at his funeral. He was proud to serve as their Vice President. Renowned for his many adventures, he once regaled

“He is remembered with affection not just by colleagues and family but by the Friendly Brass Band, based in Halifax, whose members were honoured to play at his funeral. He was proud to serve as their Vice President. ” competition. In the end he opted for Law at Newcastle Polytechnic. In those days Newcastle Poly did not offer its own degrees and his award of an external 2:1 was an outstanding achievement. He was called to the Bar by the Inner Temple in 1978. He joined Bradford Chambers and later became Head of those Chambers. Its success was in large measure due to him. He became an Assistant Recorder in 1992, and a Recorder in 1996. He took Silk in 1998. He was adept at cultivating friendships with the Bench. Many times he appeared in court to greet new judges and to bid farewell to the older Judges. His method was worthy of examination. He took great care to address the subject rather than himself. He always found the right turn of phrase and he was meticulous about expressing himself sincerely and succinctly. As a senior member of the Inner Temple he was a key member of team that ran weekend courses for Inner Temple Students at Highgate House in Northamptonshire. He joined in all the activities with great gusto and he liked to socialise

friends with an account of his experience of skiing. His instructor was a young woman from Argentina. She could not accept that this gangly creature was not teasing her with his apparent lack of physical co-ordination, his inability to even mount the ski lift chair and his own frustration. He gloried in his decision to give up trying and to rest content at the mountain top restaurant, watching the world, pleased that his instructress turned out to be such a patient person after all. Twice married: his wife Jane survives him and their daughter Lucy, and his son Edward from his first marriage to Angela. He is remembered as a charismatic friend and companion, with a sense of fun that was irresistible. He possessed something indefinable that made people want to be with him and enjoy life with him. Time spent with Master Hyland was never dull. Maﬆer Williamson

INNER TEMPLE

Malaysia Inner Temple Alumni Association Report for Inner Temple 2014-2015 Yearbook

he Malaysia Inner Temple Alumni Association (MITAA) enjoyed yet another active and fruitful year. MITAA would like to take this opportunity to record its thanks to its members, friends and Inner Temple, London, for their dedicated support and spirited enthusiasm. We are pleased to report on some of MITAA’s activities and developments in the past year below.

The Maﬆer Treasurer’s Visit to Malaysia MITAA was honoured to receive Master Treasurer, Simon Thorley QC, his daughter Miss Francesca Thorley, and the Sub-Treasurer Mr Patrick Maddams when they visited Kuala Lumpur in August 2013. During his time in Kuala Lumpur, Master Thorley visited the Intellectual Property Committee of the Bar Council. Master Thorley, Mr Maddams and Tan Sri James Foong also spoke to law students and lecturers at the Advance Tertiary College (ATC). Accompanied by Tan Sri James Foong, Master Thorley and Mr Maddams then visited Kuching, where they attended a talk delivered by Datuk Seri Panglima Sulong bin Matjeraie. Mr Maddams then made an official visit to the Kuching High Court and was hosted by the Honourable Tan Sri Dato’ Sri Haji Mohamed Apandi Bin Haji Ali.

Public Lecturer by Maﬆer Simon Thorley QC On 22 August 2013, Master Thorley delivered a public lecture entitled, “Law Liberty and Morality in the Age of the Genome”. The event was held in the Ballroom of the Royal Selangor Club, Kuala Lumpur, and was well received by members and guests.

Annual Dinner 2013 MITAA hosted its 2013 Annual Dinner at the Sage Restaurant & Wine Bar on 23 August 2013. Master Thorley, his daughter Miss Francesca Thorley and the Sub-Treasurer, Mr Patrick Maddams, graced the event. In true Inner Temple fashion, the event saw MITAA members and guests enjoying a sumptuous dinner, witty speeches, talented entertainers (in the form of both a string quartet as well as a small band of young MITAA members, including Miss Thorley), and delightful company all round.

Dining Night at Taylor’s Law School MITAA and Taylor’s Law School jointly hosted a mock dining night for the students of School on 2 June 2014, which was attended by students and faculty of the school and MITAA members. This dinner was organized with the objective of introducing the traditions and culture of Inner Temple to the students. The dinner was held at the Thyme and Tarragon, which was located on Taylor’s University’s scenic lakeside campus. MITAA Representative, Tan Sri James Foong, delivered the

opening speech while Datuk N. Chandran shared his insights into legal practice in his address, “Then & Now: The EverChanging Landscape of Legal Practice”.

MITAA’s 8th Annual General Meeting (AGM) MITAA’s 8th Annual General Meeting was held on 27 March 2014 at the Royal Lake Club, Kuala Lumpur. MITAA is pleased to announce the office bearers elected for the year 2014-2015: President The Honourable Tan Sri Dato’ Sri Haji Mohamed Apandi Bin Haji Ali Vice President Datin Faizah Jamaludin Secretary Ms Ezane Chong Assistant Secretary Ms Ong Doen Xian Treasurer Mr Oommen Koshy

Committee Members Datuk N. Chandran Dato’ Roy Rajasingam Serene Ong Si-Oui Ariff Rozhan Leong Hui Yee (Jessy)

Congratulatory Addresses MITAA warmly congratulates our member, Datuk Seri Panglima Sulong bin Matjeraie on his election as an Overseas Bencher of the Inn earlier this year. MITAA warmly congratulates our member, Dato’ Mahadev Shankar on his being conferred the Malaysian Bar Lifetime Achievement Award in March 2014. This Award was instituted by the Malaysian Bar Council in 2011, in recognition by the Malaysian Bar of past or present members, for outstanding contributions to the Malaysian Bar “inter alia in terms of leadership, service to the Bar and/or to the Nation, and/or in their practice at the Bar, which contributions had a significant historical and lasting impact on the legal profession and on the community at large.” MITAA warmly congratulates Ms Sabin Ann Thomas on being awarded the Tun Azmi Inner Temple Scholarship by MITAA, in support of her pursuit of the Bar Professional Training Course at the City Law School, London. MITAA looks forward to another year of activities and good fellowship, including welcoming Master Treasurer, Lord Justice Tomlinson, and the Sub-Treasurer on the occasion of their visit to Malaysia in August 2014.

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Mary Lamb: Woman’s Work

Helen Walton celebrates the 250th anniversary of the birth of the writer Mary Lamb

he discreet plaque in Inner Temple of famous residents lists Charles Lamb, but makes no mention of his sister, Mary. A published author in her own right, as well as co-author of the Lambs’ Tales From Shakespeare, Mary Lamb was an integral part of the circle that included her brother, Charles; the writers Coleridge, Southey, De Quincey, Keats and Wordsworth; and a range of critics, artists and radicals, such as William Hazlitt, Geoff Dyer and William Godwin. Today, she is remembered mostly for her tragic personal history. In 1796, when she was 32 years old, she killed her mother with a carving knife. Each year, she suffered relapses lasting from a few weeks to many months. Charles cared for her as long as he lived, working hard to keep her in a private asylum, and not the dreaded public madhouse, Bedlam. This view of Mary does her a grave disservice. It ignores the evidence of Charles himself – who always gave full credit for her authorship in their shared works and her assistance with his essays – and the praises of the writers who knew and admired her. Most unfairly of all, it suppresses the significant body of work that Mary left behind her, including many

stories and poems, all of the comedies in the Lambs’ Tales, and the work which I shall discuss here – her essay On Needlework, a startlingly modern exploration of women’s labour. Mary Lamb was born in 2 Crown Office Row, Inner Temple, in 1764. She loved its gardens, buildings and courts: “I wish to live and die”, she wrote “in the Temple where I was born.” But her beautiful surroundings did not indicate family wealth. The Lambs were servants to Mr Samuel Salt. They lived in two basement rooms underneath his office and rooms in Crown Office Row, sharing the space with Salt’s wine collection. The family consisted of three adults and the three children who survived infancy. Mary’s father, John Lamb, served Samuel Salt as valet and clerk, and also as a butler in the dining hall of Inner Temple. He wrote poetry and enjoyed drawing, sculpting and carpentry in his spare time. In this poor but aspirational family, the two boys would thrive. John and Charles were sponsored by Samuel Salt to gain places at the prestigious Christ’s Hospital School. There they received an excellent education – one that allowed both to make the social leap from servants to gentlemen. In her essay, Mary writes feelingly of the lack of education which is the common lot of daughters of “every parent whose income does not very much exceed the moderate”. She had only a few years in a day school, making good the deficiencies as she could, reading in the Inner Temple Library and teaching herself Latin from Charles’ school books. Mary was apprenticed in one of the few trades open to women, as a mantua-maker. It was scarcely a desirable choice. Almost the only bitter sentence in her essay is when she states: “Needlework and intellectual improvement are naturally in a state of warfare.” Writers of the time wrote movingly of the painful circumstances of seamstresses, unable to earn enough to survive. With fingers weary and worn, With eyelids heavy and red, A woman sat, in unwomanly rags, Plying her needle and thread - Stitch! stitch! stitch! In poverty, hunger, and dirt, And still with a voice of dolorous pitch She sang the ‘Song of the Shirt’. The Song of the Shirt, Thomas Hood, 1799–1845

MARY LAMB: WOMAN’S WORK INNER TEMPLE YEARBOOK 2014–2015

When Samuel Salt died, the family had to leave Inner Temple and the rooms in which they had lived for over 30 years. Paralysed by a stroke, John Lamb could no longer serve in the dining hall, while the two boys were still in the early stages of their careers. The entire family was now reliant upon what Mary could earn through what she called ‘humble labours’. Mary could have written a passionate denunciation of the working conditions and pay of seamstresses – as Hood did in his poem – but she didn’t. Instead, she wrote a much more revolutionary and far reaching essay, one which encompassed the economic value of work, women’s education, their happiness and occupations. She begins with two economic insights. Mary points out that as long as all women of all classes viewed sewing as a duty, the wages and quantity of work for seamstresses would necessarily be depressed. The relationship of supply and demand to wages as well as prices had only recently been described by Adam Smith, but Mary takes the argument further. She points out that the labour spent upon sewing was not free, that it had a cost – whether stopping women from doing something more useful or exhausting and boring them. A penny saved, she points out, is not equivalent to a penny earned if the saving takes much longer than the earning would do. This is heady stuff. Mary uses a homely metaphor to illustrate opportunity cost, the very idea of which was not formulated until 1848 by the French economist Bastiat. Of course, this brilliant insight left Mary with a conundrum because respectable married women were not permitted to ‘earn’ further pennies in the time which they spent sewing. Mary was forced to fall back upon occupations without a specific financial value. Agreeing that “the highest praise we can aim at is to be accounted the helpmates of man”, Mary suggested women should spend their time reading in order to talk intelligently with their husbands, running the household and educating children. It is not long before Mary gets to the heart of the economic issue: that women are only permitted any employment at all while they are single and then are limited to sewing. Her passionate plea for single women to have a greater choice of work is worth quoting at length, not least because her first thought for female employment is an occupation she understood well – the clerk’s duties her father undertook in Inner Temple. “If, at the birth of girls, it were possible to foresee in what cases it would be their fortune to pass a single life, we should soon find trades wrested from their present occupiers and transferred to the exclusive possession of our sex. The whole mechanical business of copying writings in the law department, for instance, might very soon be transferred with advantage to the poorer sort of women, who, with very little teaching, would soon beat their rivals of the other sex in facility and neatness.” Like many reformers, she hides the revolutionary nature of her argument under seemingly moderate demands, such as a few inferior jobs to be permitted to single women, married women only to work in the case of need. But a more daring view emerges in barbed comments: “The females of a family nominally supported by the other sex”; “Men engrossing to themselves every occupation and calling”. She denounces the drudgery and boredom of “female duties” that have no “consoling importance”. She hints that married women should “add to the common stock … money in its true shape”, and that women are equally capable of trades requiring capacity of mind and robustness of body, if only they were educated properly.

The Song of the Shirt by John T. Peele, 1849 Albany Institute of History and Art

This then is the true thrust of Mary’s essay: girls should be educated as boys are; occupations should be open to women; economic independence should be the aim of women; and leisure and enjoyment are women’s right as much as men’s. On Needlework is, in its polite and ladylike way, as radical as Mary Wollstonecraft’s polemic, A Vindication of the Rights of Women. In grounding her argument so firmly and so clear-sightedly in economics, Mary Lamb’s short essay is also the more original. Mary offers us an insight into the frustrations and limitations placed on an intelligent woman. No reader could fail to grasp the real feeling with which she says: “Real business and real leisure make up the portions of men’s time: – two sources of happiness which we certainly partake of in a very inferior degree.” And yet the essay is also a beacon of hope. For Mary, with no education to speak of, labouring under the twin disadvantages of poverty and mental illness, did achieve those two sources of happiness. She wrote, was published, forged a name for herself and, even after Charles’s early death, continued to live “in the midst of many friends”. Could Mary see Inner Temple 250 years on, no doubt, she would delight in what remained of the beloved buildings and grounds. But how much more would she delight over the changes – the impossible and thrilling sight of female barristers walking “its ample squares, its classic green recesses”! The Lambs’ Tale is her first collaboration with Art Start, an arts and education organisation based in north London, which has produced a puppet show specially written for Mary Lamb’s 250th anniversary. Helen Walton Helen has recently finished Lambs’ Tale a collaboration with Art Start, an arts and education organisation based in north London, which has produced a puppet show specially written for Mary Lamb’s 250th anniversary.

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Rachel Lawrence

22 June 1968 – 6 September 2013 An appreciation by Maﬆer de Wilde

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n 30 October 2013, the Temple Church was packed for what was described as ‘A Celebration of her Life’. The congregation included family friends, professional colleagues, friends of her parents, members of Hall, Benchers, as well as members of the Hall staff, who not only knew her well, but appreciated what she was and the nature of the life that she had led. I noted at least one retired Law Lord present and several members of the Court of Appeal as well as many others whose lives she had touched. The opening words of the Master of the Temple, the Reverend Robin Griffiths-Jones, set the tone for what was to come. He started the service with the words: “We are come together to commend Rachel to the loving mercy of God; to give thanks for the full life she lived among us, for her energy, humour and verve, for her dedication and acuity at the Bar, for her immense courage and for her devoted love of her family; …” I knew that her qualities were going to be properly appreciated.

Rachel Lawrence was the only child and daughter of Ivan and Gloria Lawrence. Her father is a distinguished criminal silk, Bencher of the Inner Temple, sometime Conservative Member of Parliament and an influential politician who has served not only on the Bar Council but in many other organisations. He has also written an entertaining volume of memoirs entitled My Life in Crime. Gloria ensured everything at home ran smoothly so that both Ivan and Rachel were supported in their more public lives. Rachel was born with cystic fibrosis, a crippling and now better appreciated genetic illness. In her teenage years she was afflicted with type 1 diabetes. At an early stage she made a profound personal decision that she would live as full a life as she possibly could, despite these two medical disadvantages. This she managed, to the extent that when she died at the age of 45, she was one of the longest surviving sufferers of cystic fibrosis, who had not been able to benefit from a lung transplant. That early decision meant that she led a more fulfilling and taxing life than most of us have done, without either of her disabilities. In fact, so little did she reveal to the world at large, that many who came across her never appreciated what the true nature of her problems were. She read for a degree in law at the LSE and was called to the Bar of the Inner Temple in 1992, found a pupillage and then a tenancy. She also achieved the Duke of Edinburgh’s Gold Award, and Distinction at Grade 8 on the piano at the age of 15. She acted in theatricals both at the LSE and at the Inn in the principal female roles, most recently playing the part of Marlene Dietrich in a play concerning a trial in postWorld War II Germany. She acquired friends and admirers throughout her life. Not for nothing was her email address ‘socialbutterflyofLondon.com.’ She was smart, sassy, and great fun as a person. She had opinions about all sort of things and whatever she did, she made light of her condition. Over the last few years, she had to attend the specialist clinic at the Royal Brompton Hospital, once or twice a year, for a fortnight at a time, so her system could be drained of the many impurities and poisons that she had gathered in

Rachel with Baroness Thatcher, her father Master Lawrence and mother Lady Lawrence

RACHEL LAWRENCE INNER TEMPLE YEARBOOK 2014–2015

the previous 12 months. One of the nursing staff at that great hospital was so impressed with her courage that she decided to devote the balance of her nursing career to the care of those suffering from similar problems. After her yearly spell in hospital, she returned to her normal daily life, defending criminals, with her usual professionalism and verve, achieving quite unexpected results, on occasions not only to her clients’ amazement, but sometimes to her own surprise as well. Rachel always knew what the likely outcome was going to be. Prior to her death, she had been so busy defending in ‘end to end’ child abuse cases in the Midlands, that no one appreciated that she needed a lung transplant. However, she continued to live life to the full, totally undaunted and insouciant about her medical condition. After her death, her kidneys and eyes were used as transplant donations. The family have endowed a scholarship in her name at the Inner Temple. She was an inspiration to all who knew her. Those who fully appreciated how she made light of her problems, reacted in a way that she often did not know. A number of people came forward when she died, telling her family that the thought of Rachel living her life as she did, gave them the resolve to continue with their own careers, whatever difficulties they personally faced. She should stand as an inspiration to anyone who faces some grim adversity, whether personal or professional. For her sheer courage, she should be remembered and celebrated. She was a remarkable human being. Maﬆer de Wilde

In Memoriam

The Honourable Society of the Inner Temple mourns the loss of the following members. Henry Armstrong DL

Sir Andrew Kirkwood

His Honour John Arthur

Miss Nodley McCarthy

David Barker QC

Miss Mary McCarthy

Henry Bridger

Michael Meredith-Hardy

Christopher Bridges

Florence O’Donoghue

Mrs Jean Gardner

Miss Elisabeth O’Flynn

Miss Joanna Hall

His Excellency Arthur N.R. Robinson

His Honour Rolf Hammerton

His Honour Peter Simpson

Jeremy Harwood

Richard Sones

Mrs Catherine Henderson

Mrs Sarah Taylor

His Honour Charles James

His Honour Sir Lawrence Verney

Ms Debra Jamieson-Hesk

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Weddings at the Temple Church

Debbie Middleton and Dominic Lee Married 26 October 2013

Sarah Carter-Stephenson and Tim Gilbride Married Sunday 9 February 2014

Chantal Baxter and Adam Chandler Married at the Temple Church on 28 June 2014

22/12/08