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Benches, Bars & Briefs

Spring Edition 2012

Bar Society of the University of Westminster Publication accessus et doctrina


Editorial It has been an incredibly exciting year for the Bar Society of the University of Westminster. We were founded in February 2011 and through the dedication and hard work of our Executive Officers, as well as the time given up by our guest speakers, we have achieved so much. Particular highlights include, firstly, the First Year Mooting Competition. Before the Bar Society, there was very limited scope for Level Four students to participate in mooting other than via the University’s mooting module. This is, of course, a very valuable and useful module for budding mooters, but there are many students who have been unable to undertake it. We have now run the competition for two years (always in the second semester) and it has proven to be very popular with First Year students. The Society has also branched out into areas not immediately connected with the Bar. We are here to help students make an informed choice about a career at the Bar. This involves giving you a flavour of all the possible alternatives.

To help with this, we organised an Academic Workshop and a Practitioner Event, among many others—see the reviews pages in this magazine for more details. Benches, Bar & Briefs is part of the package of the Society’s service and your education. Some of you may have seen the first edition printed in October. If not, it is freely available on our website: www.westminsterbarsociety.net/b3. This edition is rather different. We hope that you will find the reviews, articles and opinions in here informative and entertaining and for those of you who saw the first edition, we hope you consider this an improvement. Most of us are now waiting in suspense for our exam and coursework results. We would like to wish everyone who is in this position (or, if any such law student exists, those who yet have exams to write) the best of luck! - Matthew Jay, Alistair Henwood and Wing-Yan Cheung

Farewell from the President, Victoria Brooks This year was the fledgling year for the Bar Society and it has been a privilege for me to be President in this exciting time. I would like to thank all of our members who have supported us at the variety of events we hosted in the past academic year, and of course I would like to thank the Executive Board for their help and dedication in making the events so successful. I wish the new President and Board the very best for this coming year!


Contents The Bar Society

• The Executive Board • Bar Society Events Reviews

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Work Experience & Education • • • • •

Your Summer Checklist The Good, the Bad and the Ugly: Mini-Pupillages Your Work, Your Career A Grand Day Out A sneak-peek into the LPC and the BPTC: the view from students present and past

9 10 11 12 13

Legal Interest Articles • Ever Larger Union(s) • Ciceronian Rhetoric, Or Something Else the Romans Did for Us • Language, Law and the Compelling Voice in Belmarsh • The Legal Services Act: Creating Greater Ethnic Diversity or De-Professionalising the Legal Profession?

15 17 19 22

Last, But Not Least…

• Other Societies • Acknowledgements • Contact details (rear cover)

23 24


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The Bar Society The Executive Board for 2012 - 2013 President, Sarah-Jane Loriot

barsocietywmin@gmail.com

I am a third year LLB with Commercial Law student, who aspires to practice at the Bar in the corporate sphere. Last year, I was the Mistress of Mooting and LUMS Team Captain. In my spare time, I work for a Hedge Fund in the Legal and Compliance team and last year I climbed Kilimanjaro for the charity, Dig Deep. But I promise I am completely approachable! This year, I will be running several events that are focused on allowing students the best possible chance of entering the legal profession. If you have any questions about the Bar Society, send me an email at s.loriot@my.westminster.ac.uk.

Vice-President, Mihai Brostian As a third year LLB, I am glad to be part of such a great society, especially in this newly formed position. Having helped the Bar Society last year and having attained abundant experience in the field I trust we will be able to enhance prospects for our students. During the remainder of my time at Westminster, I am determined to contribute to improving the reputation of the University, as well as that of the Bar Society, by reaching out to other universities whether for events or competitions. Please feel free to approach me for any further information! I can be reached on mihai.brostian@facebook.com.

Mooting Officer, Adrianna Jankowiak I am delighted to be behind planning and running the mooting competitions next year! Having won the Bar Society’s First Year Mooting Competition 2012, I am well placed to run the competition next year and to help out our mooters. I can be contacted on adrianna.jankowiak@gmail.com. Mooting Officer, Jim Hirschmann Alongside Adrianna, I will be organising moots and debates on behalf of the Bar Society in the upcoming year. I aim to develop the University’s mooting portfolio and generate opportunities for students to enhance their skills. I hope you will feel comfortable in approaching me; I can be contacted via/through/on (my e-mail) jim.hirschmann@my.westminster.ac.uk.

Public Relations Officer and Treasurer, Darren McGaughay My aim as the Public Relations Officer and Treasurer is simple. I want to increase our membership, and encourage more students to sign up and to give advocacy a go! As Treasurer, my job is to raise the funds necessary to continue our drive to compete in more competitions and to expand the Society. If I was asked "why should I sign up?” I would answer that the Bar Society enables students to learn practical skills and how CVs can be enhanced. If you are curious and would like to learn more, please contact me at d.mcgaughay@gmail.com.


The Bar Society Events Review

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During the first year of fast growth and continuing success, the Bar Society of the University of Westminster had the opportunity to provide Westminster students with incredibly fun, informative and educational events. We started off the academic year of 2011 – 2012 with the Students to the Bar Social Event, where the Executive Board got the chance to meet its new members. October commenced with Professor Lisa Webley’s Article Publication Workshop. She spoke to our students about how to publish an article and the importance thereof. Furthermore, Kaplan Bar School was very kind to stop by the University of Westminster to provide students valuable tips to enhance their CVs, which was emphasised as a crucial step towards a successful career. By the end of November, students received the opportunity to gain information on various legal professions including ILEX, the independent and employed Bars and that of solicitors. More information on the Practitioner Event can be found on p 4. As the end of semester one was approaching, students enjoyed the incredible wine, delicious canapés, and the DJ turning up the volume in the Foyer of Regent Street Campus. The Winter Law Ball organised by the Bar Society in association with the Law Society and the Law School was a great success. Are you interested in reading what the lecturers and students thought of it? Turn to p 5 where you can read what they had to say! The Bar Society commenced semester two with the Criminal Barrister Workshop where Christopher Grout of 15 New Bridge Street helped students and provided useful tips on how to resolve criminal problem questions. Some of the tips can be found on p 6. Continuing with the careers orientated events, the Bar Society in association with the Law School arranged an Academic Workshop and a drinks reception that gave students a unique opportunity to listen to and chat afterwards with Dr. Paresh Kathrani, Dean of the Law School Andy Boon, Professor Andreas Philippopoulos-Mihalopoulos, Professor John Flood, Professor Lisa Webley, Dr. Stephanie Roberts and last, but not least, Head of the Department Liz Duff. A report can be found on pp 7 – 8. In March, the Bar Society took Westminster students into a Courtroom-Body Workshop event where acting and reacting were the key activities to find out what goes on beneath and within the space of the courtroom, how bodies within the courtroom move, and why they move in particular ways. With Professor Andreas Philippopoulos-Mihalopoulos, Tiziana Silvestre, and Victoria Brooks as guides, students enjoyed an incredible afternoon that made them see the courtroom from a different light. As all good things come to an end, the Bar Society celebrated a brilliantly successful first year and said goodbye to the first Executive Board at the Celebrating and a Farewell! Whilst having a drink and talking to all the members that stopped by, we were preparing ourselves for the inevitable time of revision. For more information and pictures taken at all the events, visit www.facebook.com/BarSociety.Westminster or www.westminsterbarsociety.net.

"The Bar Soc have recently taken an excellent turn in event organising, beyond the usual and rather safe pedagogical events and towards some really novel, original and indeed seriously fun events that show both the law and the bar in a new light.“ – Andreas PhilippopoulosMihalopoulos, Professor of Law & Theory


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Advocacy and Mooting Highlights 2011 - 2012 - By Sarah-Jane Loriot, Mistress of the Moots Setting the social and informative events aside, this has also been an exciting year for mooting at the University of Westminster for students and members of the Bar Society. Martin Cubash, Thomas Rich, Florina Pop, and I demonstrated a strong commitment to the London Universities Mooting Shield (LUMS) in nine moots across the year, ending with winning the Spirit of the Shield Award. Not only did they receive the privilege to moot in the Old Bailey and The Royal Courts of Justice, but also in Kaplan Law School’s Caer Rhun, Wales. The Honourable Society of the Inner Temple Inter Varsity Moot was held in February. Two second years, Donia Alwan and Mihai Brostian, competed against Universities from across the United Kingdom. This competition offered a great opportunity to compete against high-calibre teams and to network with members of Inner Temple. The Introduction to Mooting Programme facilitated by family lawyer, Chrissie Cuming Walters started this year. Westminster students, regardless of any previous mooting experience, benefited from this practical mentoring scheme, culminating in a competition judged by 3 prominent family law Barristers in early March. In March, the 1st Year Mooting Competition unearthed some very talented future mooters. Being judged by 3 Barristers and a Tribunal Judge from 15 New Bridge Street, 16 teams demonstrated a high level of perseverance, passion for the law and analytical skills. The winners of this year, Adrianna Jankowiak and Lah Ahmeti, received mini-pupillages from One Inner Temple Lane. UH/Blackstone's National Criminal Advocacy Competition has been a challenging and rewarding competition for Darren McGaughay and Florina Pop, who presented their case to Sam Stein, QC. The competition run by the University of Hertfordshire is proving to be an enjoyable event.

First Year Mooting Competition 2011 - 2012


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Legal professions compared: Practitioner Event - by Sean Gardiner and others It is not often that law students get to be exposed to the professionals of the career that they study for. The Bar Society successfully managed to pool together an ILEX representative, 15 New Bridge Street barrister, in-house barrister for Armstrong World Industries and one solicitor for JP Morgan Asset Management, who made for a varied talk. Students listened to what they had to say, right down to the nitty gritty and up to the aspiring highlights of their day to day labour. As if that was not enough, opportunities arose to network and become known to the professionals. Such insight gives hope to those who worry of the conventional path one has to take to become a lawyer. It is not always the case of one step up the expensive educational ladder at a time, but rather a matter of being at the right place at the right time.

ILEX representative

Criminal Barrister

Aspiring criminal barristers were warned of the need for emotional suitability in what can be an exciting and varied profession. However, compared to solicitors, ILEX and employed barristers, the independent Bar was viewed to provide a lower sense of security and, at the criminal end, a lower pay. At the same time the in-house contingent gave real insight into their areas of practice and seemed to leave many students pondering previously stoic plans of careers in Chambers.

In-House Barrister

The most comforting words came from a practitioner who worked his way up through the business despite what would conventionally be deemed to be average qualifications. It is worth remembering to not give up, find your way, and keep an eye open for valuable opportunities. Oxbridge may hold a monopoly, but the rest of us can still get there with the right attitude.

Visit www.westminsterbarsociety.net to read more on the practitioner event.

Solicitor for JP Morgan

“An important feature of working with the law is the aptitude to make use of a diverse range of skills. From the capability of analysing facts in order to identify relevant legal issues, to conducting adequate research in order to reach sound and fully reasoned conclusions, legal work rests heavily on the adeptness to use skills. I have been following the work of the University of Westminster Bar Society for some time and would like to applaud it for the endeavour it has shown, particularly on putting on events that allow students to develop their skills. In particular, the Article Writing Workshop and Criminal Barrister Workshop were very resourceful. I look forward to watching the work of the Bar Society as it grows and wish it all the best for the future.� – Dr Paresh Kathrani, Visiting Lecturer in Law


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Winter Law Ball: Personal Thoughts “It was great to be involved in such a successful Christmas party organized by the Bar Society, the Law School and the Law Society. I particularly enjoyed judging one ‘Best dressed’ competition, but the drinks were pretty good too!” - Lisa Webley, Professor of Empirical Legal Studies “309 has never looked more glamorous than at the Winter Law Ball. Even passersby on Regent Street stopped and stared at the festive goings on – it was like the window display at Selfridges. So great to see the "The really impressive feat is that the Xmas Bar Society turning us all into Exhibit A.” - David Ball was perhaps the first collaboration Stewart, Principle Lecturer between The Bar Soc, the Law Soc and the “I had the good fortune to attend the Christmas Winter Law School. And it showed! The glamour, the Law Ball in December (obviously) and the atmosphere coolness, the dance moves! Regent St foyer was vibrant and everyone looked smart and will never be the same after that.” - Andreas sophisticated. My own personal highlight was dancing Philippopoulos-Mihalopoulos, Professor of with Wing-Yan Cheung and fulfilling a promise that we Law & Theory had made to each other!! It was a great event, with a great vibe and it was clear that a good time was had by all.” - Kenneth Umeh, Student Support Officer “An event that will be very difficult to be beaten, everyone had a blast. It showed the true dedication of the Bar and Law Society.” – Mihai Brostian, LLB (year 2) “What I liked about the Xmas Ball was the warm party atmosphere that was created by the people, the DJ and the members of staff which made it all lace together nicely, and although it was a formal event emphasised by the dashing good looking men in suits and the red/white wine - it was clear by the end of the night that lawyers certainly can throw a hell of a party!” – Olta Ponxha, Solicitors Exempting Degree (year 3)

“As a first year student, I only knew one other person at the ball so it was an awesome chance for me to meet new people and make new friends. I met some wonderful people, had some nice food and wine and just did not stop smiling.” - Sirena Chalhoub, LLB (year 1) “A night I would cherish, where I was able to meet new faces, strengthen relations, relax, and spend some quality time for myself. On a whole, it was an incredible and an unforgettable event.” - Suhood Thattarath Shamsudheen, LLM International Commercial Law “As an international LLM student, you only have one year to make the most out of the University. The Winter Law Ball was the perfect start to meet a lot of people, enjoy the drinks and the canapés, and, more generally, to have a really great time partying with other law students.” – Cansu Baş, LLM International Commercial Law


Criminal Barrister Workshop: Did You Know That‌?

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1. Christopher Grout, 15 New Bridge Street barrister, gave Westminster law students the opportunity to exercise answering criminal problem questions. 2. Although the focus was on criminal law, the most used framework in any module is the IRAC method: find the issue, state the rule, apply it to the facts and conclude. 3. Figuring out the right offence is essential, as it will not only allow you to identify the significant principles of law, but also affects the client’s outcome and sentence. 4. Turberville v Savage and DPP v Smith are very useful cases at University level and in practice. In the latter case, the court has given guidance on the fact that hair is an extension of the body and thus can amount to ABH. 5. The difference between s 47 and s 20 OAPA would be the degree of injury and the difference between s 18 and 20 OAPA is the degree of intent, as the injury is the same. 6. Oblique intent never occurs in practice; the last time Christopher had heard of it was in law school. 7. With number 6 in mind, you could try to argue oblique intent in Court, but you may have to remind the judge what it involves, as he has probably forgotten. (You are probably trying to make it difficult for the judge, but it will be very exciting!). 8. You should read the case R v Gnango [2012] 2 WLR 17 to add valuable knowledge to your criminal law studies.


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A Taste of The Academic World - By Wing-Yan Cheung The Westminster Bar Society focuses on helping to provide education to students to ensure they can make an informed career choice. With this aim in mind, the Bar Society, in association with the Law School, organized an ‘Academic Workshop’. Speakers included Dr. Paresh Kathrani introducing, along with Professor Andy Boon, Professor Andreas Philippopoulos-Mihalopoulos, Professor John Flood, Professor Lisa Webley, Dr. Stephanie Roberts and Head of Department Liz Duff. Attendees gained a valuable opportunity to grasp an idea of what the path towards academia and a career as an ‘academic’ involves. Professor Andy Boon, Dean of the Law School, changed his career path from being a solicitor to entering the world of academia by simply taking the opportunity to teach Equity and Trust. For him, practising law meant he had to focus on a very narrow area as well as experiencing a mundane work routine with little room for autonomy. As a solicitor one is obliged to commit to firm and obligatory duties, whereas an academic spends most of his time thinking about and researching the law. Although a PhD was not necessary back then, nowadays, to secure your job opportunity as an academic, having a PhD and

teaching a core subject has become of paramount importance. Even if, realistically speaking, the financial awards may not be great, satisfaction and benefits can be found in publishing your work. Professor Andreas Philippopoulos-Mihalopoulos then spoke of his path towards academia. He said that when he was our age, he could not imagine doing anything else but teaching. Although, he suspects that he had a somewhat romanticized idea of the academic world in mind, he focused on publishing his work whilst undertaking his PhD. This ultimately amounted to being asked to teach as a senior lecturer. He passionately emphasized that the most important part of this path is having the space and time for yourself to think. Teaching is more than just being in a classroom, as with it comes the responsibility of supervising students, as well as the constant practice of improving your public speaking skills. When the audience was passed on to Professor John Flood, he further explains that academia is probably the only career in which you can do what you want, when you want and how you want, with the luxury of being able to think. He elaborates on the concept of ‘there is more to academia than teaching’ with examples including gaining a set of skills that will help you achieve

teaching you to think properly and helping you to research efficiently in order to develop new knowledge. He further suggests that an American PhD, as opposed to an English one, may be more attractive as it trains you better, encourages intensive studying and aids you in your research and thesis process. As funding in the UK has become harder to maintain, he strongly advises the audience to travel outside the UK, for example to Holland, Hong Kong or the USA to undertake a PhD. This will allow you to become more cosmopolitan, which is a requisite characteristic to understand the law properly and expand your knowledge horizons even further. For those of you who are not yet familiarised with all the possible social networks, create that blog, Twitter and Facebook account, as Professor John Flood emphasised that it is a great start to be a promoter of your own ideas, thoughts and interests. On the topic of legal writing, Professor Lisa Webley said that textbooks are essentially academics speaking to you, which are considered to be useful and an opportunity to make money, but unfortunately it will not score high academic points with your colleagues. Therefore, an academic is


likely to focus on peer reviewed articles and monographs (around 8000 – 10 000 words). Such work will take you at least a year of time, space, and reflection to redraft your work. Academia is producing new knowledge, exploring ideas and theories that may fit. She explains that being an academic is an interesting, stimulating, yet difficult and challenging way to live, especially when meaningful and excellent writing takes a lot of time. She finished by saying that if you are considering a career in academia, you definitely need to ‘make friends with writing’. Dr Stephanie Roberts’ academic path encountered a rather traditional start in a non-traditional way. Having left school at the age of 16 to travel and work for ten years, she decided to pursue her interest in law at the age of 26. Having finished the LLB, she did an LLM at the London School of Economics and ended up doing her PhD there which took her about nine years. As a PhD student she was given the opportunity to teach which she thoroughly enjoyed, despite admitting to the audience that her first four classes of her teaching career were filled up with talking, so that students would not have the time to even attempt to question her! Nonetheless, with teaching comes the need to develop your module by designing it, thinking of the content, planning lectures and tutorials. This procedure takes time, as a lecturer must keep

in mind the variety of students. In addition, an academic must be able to control a room full of students, ensure that each student receives the same accurate information, as well as creating an exam that is a balance between too easy and too difficult, and ultimately develop a secure marking and moderation system. The importance of constantly reviewing yourself was highlighted with the aim to demonstrate that the only way to teach is instantly getting started in a classroom. The evening ended with Head of the Department Liz Duff, who focuses on policy lead research relating to institution and students and diversity. She initially started research to demonstrate what courses worked well and how it affected the students’ progression in their careers e.g. what students would need to obtain a training contract. She mentioned that the Law School has done a lot of policy research, and emphasised the importance of continuing something that interests and drives you. For her, it was finding an answer on how to increase students’ chances after law school. Policy research is there to influence an audience e.g. in her case it was the legal profession. Nonetheless, Liz Duff highlighted the challenges of writing an academic

8 paper: it should speak to the right audience, and make sense to those who pick it up to read it. The challenge then is to transform it in articles that are useful for conferences and publishable. Dr Paresh Kathrani also spoke about his PhD Experience, and said that he was very lucky to have a supportive environment at home in order to undertake what is a demanding course, both in terms of knowledge and finances. He explains to the students who are thinking of embarking on an academic career to start getting their work published as soon as they can, as this is a key requirement for all institutions. The evening ended with an informal drinks reception where students were able to question the academics and gain advice as to their career. Overall, students found the evening a very useful experience, not only with regard to obtaining careers advice, but in finding out what goes on behind the scenes for our lecturers and tutors.

“The Bar Society has become an important vehicle for student engagement through the organising of a whole range of events and initiatives. It is very important to have events for students driven and led by students and the Bar Society has become every good at doing this in such a short space of time.” – Kenneth Umeh, Student Support Officer


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Your Summer Checklist By the Editors

Summer holidays always seem to be short, and a trip to the sun, sea and beach is what one needs after putting in a lot of effort for the exams. But three to four months off can be seen as an investment period. What better time to enhance your prospects? Whether you are travelling around the world or staying in London, there are always things to do that could increase your chances of getting that pupillage or training contract.  Work experience Employers are impressed by any work experience you undertake which shows your determination. The starting point is a mini-pupillage or vacation scheme. If you can obtain both, even better: you will receive valuable insights on how the system works. Look at http://www.chambersandpartners.com/ and http://www.legal500.com/ for possible places to go, but remember these are the biggest sets and firms. It may be easer to rely on personal contacts or to get in touch with smaller, local practices.  Court visits With these, you will see the interaction between the lawyers, the judge and the jury. Or if you are interested in the philosophy behind the mechanism of a court, observing the action and reaction in the spaces of the court may open up a new way of thinking. Do take notes so you can better remember your visits when it comes to interviews.

 Volunteering Ideally, find some law related volunteering roles but do not be put off by opportunities in non-legal fields. Employers do not look for bookworms who show no interests beyond law, and if you want to travel, there are plenty of projects abroad. While legal experience is essential, it is often additional and surprising activities which can draw the attention of practitioners.  Applications BPTC – you will need to join an Inn in order to become a barrister and if you want a scholarship from an Inn, you will need to join one before you start your BPTC. You will also need to consider your provider as each is different and offers different funding opportunities. Applications for the BPTC: http://www.barstandardsboard.org.uk/

LPC – consider training contracts early as these are often given two years in advance and can be a vital source of income to aid with LPC. If you are unsure about the firms you wish to attend ask them for work experience, or better yet, for the big firms, apply for their open days and vacation schemes. Applications for the LPC: search http://www.sra.org.uk for a list of providers and apply individually  And remember… If you are worried or have difficulties with this remember to talk it through with the careers service.


Work Experience & Education

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The Good, The Bad & The Ugly: Mini-Pupillage Experience - by Alistair Henwood I suppose we have all heard that you can get both good and bad mini-pupillages. I have however, until late, had little experience with which to test this statement. I suppose I always thought that it would all depend on the Chambers, or the Barrister, or even the time of year, but what I did not expect was that within a three day period I could experience both extremes within one Mini-pupillage.

even what type of case it was I was about to see, nor how long it would last. It turned out that my supervisor was ill, and for the next two days I was to be passed around barristers who, like me, knew not that I was going to be following them that day. One did not actually realise I was following him until I got the chance to introduce myself when the court broke for lunch.

Let me set the scene. It

However I actually rather enjoyed my time in court, which was invariably where I was shuffled off too. By watching a case from beginning to end, I found myself invested in the outcome, and began learning and understanding areas of law I never expected to. Most arrogantly of all, I also started correcting the arguments. The latter I did in my head, of course, although I was vindicated on one occasion when the judge agreed with my inner dialogue.

was my first day, of my first ever mini-pupillage. I am not a morning person and therefore I was overly tired for the hour, but I was looking forward to whatever it was one was supposed to do on such occasions. After I had been handed through a chain of consecutive people of apparent decreasing hierarchy I was told to sit outside the clerk’s office with another, equally baffled looking, mini-pupil. Ten minutes later we were following a clerk and his overly large trolley, for the size of its contents, down the Strand to the Royal Courts of Justice being introduced on the way to a silk who had no idea we were to be following him that day. By 10:30 I was sat in the back of a court not knowing

Additionally, whilst I was being passed around as if noone quite knew what to do with me, it was actually a fantastic opportunity to view Chambers from different perspectives. I had the chance to speak to five

different barristers as to their work and experience on a one to one basis and I actually started running out of questions by the end of it all.

Mini-pupillages are one of those things that you simply have to tick off your ‘things to do’ list. It is true that some can be good, others can be bad, but if you can find an interest, even a little, in what you are doing they will always be useful. I even found out I quite like immigration law having been given four, thick lever arch folders to sit and read through one afternoon. You will be very lucky if you find a job in which you enjoy every part of it, and the same will go for work experience. So whether you find yourself in the good, the bad or the ugly kind of minipupillage, remember that you may just surprise yourself and learn something useful. If not, don’t worry, they only last about a week.


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Your Work, Your Career Employed Work within a Solicitor’s Firm - by Sean Gardiner For those of you who wish to pursue a career at the bar or as a solicitor, it goes without saying that legal experience before applying for pupillage or training contract is indispensible if you are to win chambers or firms over. Some students put off work experience until the last year of university, some even later, but there’s no reason why not to start now, and every reason why you should. Whilst at college (as a mature student) preparing for university, I had decided that it was time to bite the bullet and swap my call centre work for something relevant. Daunting though it was, I had nothing to lose by searching for basic admin work at the lowest level in the legal sector. I knew that I wanted to become a barrister and so it was time to put my foot on the legal ladder. Due to my lack of legal experience, I had expected no more than to become an office donkey, undertaking mundane tasks to assist lawyers in their everyday work. It didn’t matter to me whether I was to be in charge of the coffee rounds, banking, photocopying, filing, faxing, data entry, all of which may not even be paid. Those students who lack in confidence (or interest) may argue that to obtain such work it is easier said than done. Well I disagree. By taking your CV to the university careers department and ensuring it is up to scratch, and by taking the time to write a decent, targeted covering letter, you can increase your chances to obtain a truly beneficial opportunity. I first began working one day a week (and progressed to full time during the summer), manning the phone and corresponding with other solicitors regarding property matters. Within a week or two I was given more complex work to do such as applying for local authority searches, replying to requisitions, serving notices of transfers, assignments and charges, discharging mortgages, registering new titles with the Land Registry and so on. The aforementioned is not to be taken modestly, in fact the whole experience was somewhat nerve racking with no training. As such I began to feel out of my depth. However, my determination prevailed and before I knew it, I was interviewing clients on criminal matters, applying for legal aid and was sent to court to liaise with defendants and shadow barristers. The trust they now repose has made all the beginning difficulty worth-while. Upon reflection of the last 18 months with the firm, I have come to realise that my skills have increased tenfold. I have gained more confidence in the work I do and I am now comfortable with my skills of legal administration, communication and organisation which I intend to continue to develop. I can strongly recommend that all law students seek work experience. Think about the kind of law you might be interested in and remember that experience does not always come as a mini-pupillage. If you can target your application to the firm or company you’re going for, you are much more likely to get in. Do not just take a scatter-gun approach. And remember, there is law all over the place and opportunities may arise outside chambers or solicitors’ firms.


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A Grand Day Out - by Alistair Henwood See one. Do one. Teach One. This particular learning system is something relatively prevalent in most vocational courses but in law in can be hard to accomplish. As a profession, the Law cannot allow for such a rate of speed in learning the practicalities of the craft, and I think that the professionals, clients and even students are grateful for that. But this does not mean that these three stages of learning cannot be beneficial at our level. We have mentoring schemes and societies which allow us to teach others, to an extent. We have the Mooting competitions and charities like the FRU to participate in advocacy. And we then have public courts to spectate in. It is this last point, and the first rung of the learning curve, that I have until recently neglected. We all know that we can go and visit the courts, but so few of us actually do, which is more than a shame. I have found the experience to not only be a fantastic learning opportunity but also something which is capable of stoking my interest in advocacy.

We are law students, should we not be taking more of an interest in the courts? Shouldn’t we revel in adversarial styles and legal persuasion? Well I think we should at least not be so put off by some unfounded idea that we cannot possibly learn anything about the law outside the classroom.

What I enjoy most is how cases come alive when they are happening before you, when you can smell the ink, and feel the persuasive power of practitioners. (So much more so than simply reading the reports.) And I suppose that is the best thing about such visits; you get a feel for it, for the court, for the case, for the story. And if you don’t enjoy it what have you lost? Find an area of the law you like and go see it. Just don’t be put off by all the silent sitting, because if you pick the right case, you may just find that a lot more law has got into your head than you might have thought previously.

Photo: UKSC Blog

Of course, if you get the wrong case, or even if you don’t, there will be an element of the naughty chair at school about it. You sit in silence in a room where the discussions go on without you, and as you desperately try to avoid making noise your mind floods with the thought of escape. However, this is matched by a sense of inclusion and confidence when you find yourself not only able to follow the argument, but criticise and rebut it. And I guarantee you, if you stick with it, cases have a way of drawing you in, grasping your interest and even teaching you something.

The substantive side is barely even half of what is going on around the court room. There is so much more to take in about the practicalities of the system that learning black letter law becomes almost an ancillary bonus. I was amazed at the variation in advocacy styles and judicial management of the courts. I loved the fact that the court clerks were all talking about the Man City game mere seconds before the judge entered, and that this contrasted perfectly with the old, empty court where a judge handed out his judgment to nothing more than attentive microphones when none of the parties had seen fit to attend. I watched judicial reviews in new courts lined with unused case reports, passed ranks of the press somehow feeling offended when they asked my group to get out of shot, witnessed applications lasting ten minutes, and stayed in court all day listening to QC’s argue over leasehold implied terms.


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A sneak-peek into the LPC and the BPTC: the view from students present and past Edited by Wing-Yan Cheung, with thanks to Sofia Karagiannopoulou and Mark Tsagas

Embarking on a law degree is a long and rewarding journey. However, what comes after your LLB degree remains a mystery. If you know someone who is studying for the LPC or BPTC course, they will most likely tell you horror stories about how difficult it is and how they wish they were back in their LLB days. But like stories and legends, these accounts are usually greatly exaggerated. We interviewed BPTC and LPC students—from different colleges—so this article will offer you a small sneak peak into the reality that shrouds such courses provided by the BPP Law School, City University and College of Law, that will lead to some handful tips on how to tackle the LPC/BPTC. What is the difference in workload between your LLB and your LPC/BPTC? The BPP LPC Student was of the opinion that the workload for the LPC is extremely heavy, and the best way to treat it is like a full-time job that required around 10-15 hours/week including reading and prep work. The atmosphere is completely different to university as you are now studying for a professional qualification instead of an undergraduate degree. For the BPP BPTC Student, although most law schools expect of their students to put in 40-55 hours/week, she got away with doing the absolute bare minimum of a total (including teaching) of about 20-25 hours per week. Interestingly enough, the City BPTC Student emphasised on how one needs around 25-35 hours per week for the BPTC. The workload is different as to its content and intensity. This was reemphasised by the CoL BPTC Student, who highlighted that the main difference with an LLB is that in addition to the general preparation for coursework and exams, one has to practice their skills through in-class tests and simulations of court proceedings to get closer to the issues a real lawyer would be faced with. How do the teaching methods differ from an LLB to an LPC/BPTC? At BPP Law School the teaching is done in small groups of around 15 people to discuss specific questions. The teachers are all friendly professionals that do their best to treat the students like young professionals. Most of the sources can be found on blackboard, which makes it quite an independent way of studying. The BPP BPTC Student said, and the CoL BPTC Student agreed, that the LLB motivation was more focused on understanding the law, its mechanisms and jurisprudence. However, the BPTC is more training for a specific profession by covering the topics outlined by the Bar Standards Board and applying legal knowledge to real life situations. This is not BPP specific, as with practicing law, clients are not interested in academic legal arguments, but in the most beneficial and straightforward solution. In City University, the course is split in Large Group Sessions and Small Group Sessions. The latter usually consist of maximum 12 participants. The student acknowledged that tort and contract law were the primarily used subjects adding value to the course. Did the institution’s policy on open or closed books exams affect your choice? In choosing the institution for their LPC or BPTC, most interviewees were not really concerned with this. The most common factors that were taken into account were: the amount of people one knew in a particular institution prior to commencing their courses; the reputation of the law school as observed by ‘magic circle’ firms, as BPP students provided; any historical events attached to the institution, i.e. City Law School’s originally being the Inns of Court School of Law, known to be the most experienced provider for the BPTC; and the environment of the school in general and the staff, including pro bono and career opportunities as the CoL student highlighted.


14 However, the BPP LPC Student disagreed and stated how the policy affected the choice of law school. The student argued that the main reason for this is the fact that when you apply for a training contract, some interviewers will ask whether you had an open book exam or not. Although not of the same opinion, the BPP BPTC Student acknowledged how an open book test could mean that one is expected to provide a lot more precise detail in their answers. Did you have a funding for your LPC/BPTC? Except for the BPP BPTC Student, the interviewees did not have any funding. Although the BPP BPTC Student would not have done the BPTC without any funding or pupillage secured, the students without any funding were still enthusiastic of proceeding with the LPC/BPTC. Mainly because the skills one acquires remain essential to succeed as a barrister or to work as a lawyer/advocate in a fused system. After completing your LPC/BPTC course, do you think it would be useful obtaining a Masters Degree in order to qualify for a position at a law firm or chambers? The BPP LPC Student said that a Masters degree would stand out on a CV, though it would not make any significant difference in applying to law firms. This was followed by the BPP BPTC Student who stated that if you have secured pupillage before commencing the bar course, a Masters becomes unnecessary. However, she mentioned that if one intends to take a more academically competitive area of law which is often related to commercial and public law, a Masters could be useful, provided that it is undertaken at a top university. Much depends on the circumstances, as the City BPTC Student highlighted. If one cannot obtain pupillage within 5 years of one’s Call to the Bar, you will have to retake the BPTC course. This was also the opinion of the CoL BPTC Student. Did you have any work experience before starting your LPC/BPTC? The BPP LPC Student worked as a paralegal in Chambers, which was helpful in familiarising with some taught skills of the LPC i.e. duties of a trainee and their workload. The BPP BPTC Student worked as a paralegal at two criminal law firms and had undertaken a number of mini-pupillages, which, ultimately, helped her secure pupillage as she was able to give real informed reasons as to why she was interested in criminal law. However, this is not an essential element to start the BPTC. The City BPTC Student did a one year internship and pupillage at a Cypriot law firm. The student found it much more easier to tackle certain subjects, though the BPTC gave the student the essential and solid foundations in order to use the skills as a barrister. The CoL BPTC Student was of the opinion that any hands on experience can support one’s studies because one will become more familiar with the practical angle of the course. If you only had one piece of advice to give to prospective LPC/BPTC students, what would that be? The BPP LPC Student advises you ‘to be fully dedicated before deciding to study the LPC as it is a lot of work and you should keep up to date with the reading’. The BPP BPTC Student said the following: ‘think long and hard about whether you actually stand a chance of getting pupillage. The BPTC is a £16k course that isn’t highly regarded for any other jobs; it’s not particularly well taught; it’s not very interesting; and often isn’t relevant to what you go on to practice. Therefore the only point in doing it (as far as I’m concerned) is that it’s a requirement before you start pupillage. If you have a 2.2 / aren’t very good at public speaking / don’t come across well on paper, then you’ll find it almost impossible to secure a pupillage. There's no rush, secure pupillage or funding first and then do the bar course. Applying for pupillage costs nothing, the Bar course costs a bomb!’. This message was further emphasised by the City BPTC Student who stated that ‘undertaking the BPTC is a full time job. It is not a course which one should take if they are unsure of how they want to develop their legal career. It is a skills based course and it is extremely demanding and intensive. If one truly wishes to follow this route and work for it, it will be extremely rewarding’. A final piece of advice was given by the CoL BPTC Student, stating: ‘Be determined to achieve your goal and willing to work hard for it. You will get there finally!’


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Ever Larger Union(s) - by Matthew Jay* The ever closer Union of the peoples of Europe grows ever larger as time flies by. Originally just six countries—the Benelux lands and France, Germany and Italy—the European Union now stands at 27 Member States, with Croatia set to join in 2013. And it probably won’t stop there: Macedonia, Iceland, Montenegro, Serbia and Turkey are all candidate countries. We should also not forget Norway, whose application for membership was shot down twice by its own people in two referenda, and Switzerland, whose application was frozen when the Swiss voted against membership of the European Economic Area in 1992. Over 500 million people are ‘united’ by European citizenship and by the common European identity (or, more realistically, constantly divided by it). But European integration, a project begun in its present form at the end of the Second World War, is not all-or-nothing. The economies, if not the political and legal systems, of the countries of Europe have become intertwined to greater or lesser extents through a variety of legal mechanisms. I shall use this space to introduce the reader to some of these methods and to the complexities of this fascinating aspect of the EU, with an emphasis on the free movement of persons. That which integrates its members most with the EU (without full-on membership) is undoubtedly the European Economic Area (EEA). The EEA Agreement,1 which came into force in 1992, gives three of the four European Free Trade Association (EFTA) States a stake in the internal market. They are Norway, Iceland and Liechtenstein. As already stated, the fourth EFTA State, Switzerland, had to pull out of the Agreement after an adverse referendum.2 The Agreement itself mirrors substantive provisions of the Treaty on the Functioning of the European Union (TFEU). So, for example, Article 28 EEA looks very much like what is now Article 45 TFEU. The Agreement goes further than simply reproducing main treaty provisions, however. It also incorporates, in a series of annexes, a whole host of secondary legislation. If you look at Annex V (free movement of persons), you will find references to Directive 2004/38 and Regulation 1612/68 and in Annex VII (mutual recognition of qualifications) is Directive 2005/36. Regulation 1612/68 has been replaced by Regulation 492/2011 in the EU. This does not affect the rights granted to persons under the Agreement (as both the Regulations are basically the same) but it does highlight the fact that there is often a slight delay in updating the law in the EEA-EFTA countries. One of the most interesting aspects of the Agreement is its institutional framework. It has its own court (the EFTA Court), its own ‘Guardian’ of the Agreement, the EFTA Surveillance Authority (ESA) and an EU-EEA Joint Committee, among other institutions.3 The Joint Committee is the body responsible for updating the Annexes to the Agreement. It cannot update the main body: this has to be done by renegotiation and, despite many EU Treaty changes (the Agreement being based on the EC Treaty before Maastricht, 1992), this has never been done. Because of this, the EFTA Court has to ensure the homogeneity of EEA and EU law by taking a prointegrationist stance.4 There are some unresolved issues, particularly in the area of free movement of persons: note that Directive 2004/38, the Citizenship Directive, has been incorporated into an agreement based on a Treaty that had nothing to do with citizenship. Should the ECJ rely more heavily on the concept in future, we will witness an increasing divergence between EU and EEA law.5 And if Iceland joins the EU, it is questionable whether the Agreement can survive at all.6 But, subject to this last point, and unlike the next scheme to be considered, there is nothing to suggest it cannot work in the future.


EU-Swiss relations are characterised by a series of bilateral agreements between Switzerland and the EU, though some, in particular Switzerland’s participation in Schengen, and the EU-Swiss free movement of persons agreement,7 are mixed agreements between Switzerland, on the one hand, and the EU and EU Member States, on the other. There is no overarching supervisory machinery as such: no court or surveillance authority. Each of the bilateral agreements has its own committee which is given certain powers by each agreement. In the case of the free movement of persons agreement, the EU-Swiss Joint Committee can, by decision, amend Annexes II (social security co-ordination) and III (mutual recognition of qualifications). However, it cannot amend Annex I, which deals with substantive free movement rights. To amend Annex I, agreement between Switzerland, the EU and the 27 Member States is required and this has not happened. Because the Swiss agreement was based on the law before Directive 2004/38 came into force, different rules apply in the Swiss context to those in the EU. The interpretation of EU law in accordance with Union citizenship will increasingly become a problem for Switzerland more so than for the EEA, for at least the EEA has the EFTA Court to ensure a Euro-friendly interpretation. Because of this, and because the whole framework of EU-Swiss agreements is very complex, it is clear that something needs to be done. The Council is getting fed up with the Swiss system: it ‘has become complex and unwieldy to manage and has clearly reached its limits.’8 Switzerland will probably never join the EU or the EEA so only time can tell what happens next. Only two methods of integration have been looked at in this brief introductory paper. The EU, which is one of the world’s most important economic and political blocs (unions), has also developed relations with many other countries, which provide for more or less integration. With Russia, for example, a Partnership and Co-Operation Agreement,9 which has very broad aims,10 contains a non-discrimination clause obliging EU Member States and Russia to treat each other’s nationals, who already have lawful access to the territory of the host state, in a manner which does not discriminate on the basis of nationality.11 One should compare this with the Ankara Agreement with Turkey12 and the more extensive provisions discussed above. And when considering the extent of integration, the reader should bear in mind problems of enforcement, especially on the non-EU side. Within the EU and EEA, strong judiciaries ensure the effectiveness of EU law. However, the Swiss and other systems are highly dependent on the legal interpretations of domestic judiciaries and the political will of either the country’s leaders or, in those states, like Switzerland, with a strong democratic input in the form of referenda, of the country’s nationals. A constantly evolving picture emerges as the EU develops relations with its neighbouring (or further) countries who may or may not want the benefits (and detriments) membership of the EU can bring, whilst at the same time recognising that many countries either cannot or will not apply for membership. —— *

Third Year LL.B. University of Westminster; matthew.jay@my.westminster.ac.uk. I have been greatly assisted in the preparation of this piece by, in particular, the following work: Blockmans, S. and Łazowski, A. (eds) (2006) The European Union and Its Neighbours (The Hague: TMC Asser Press) and I am very grateful to Adam Łazowski for his encouragement. 1 [2004] OJ L 1/3. 2 Łazowski, A. (2006) ‘EEA Countries’ in Blockmans, S. and Łazowski, A., ibid., pp. 95 – 107. 3 For a diagram, see ibid, p. 109. 4 Fredriksen, H. (2010) ‘The EFTA Court 15 years on’ 59 Int’l & Comp L Quarterly 731. All of the EFTA Court’s cases (there aren’t many) are found on its website, www.eftacourt.int, and the Court’s president, Carl Baudenbacher, produces a summary called ‘Legal framework and case law’ available at http://www.eftacourt.int/index.php/court/publication/others/ (accessed 16 March 2012). 5 However, see Case E-4/11 Arnulf Clauder for the EFTA Court’s first decision on Directive 2004/38, which, I suggest, essentially assimilates nationality of one of the Contracting Parties with EU citizenship for the purposes of free movement and residence. The Court even made reference to the ECHR and the EU Charter on Human Rights, even though these documents are not mentioned in the EEA Agreement. 6 Méndez-Pinedo, M. (2009) EC and EEA Law (Groningen: Europa Law Publishing), p. 308. 7 [2002] OJ L 114/6. 8 Council Conclusions, 14 December 2010, [48]. 9 [1997] OJ L 327/3. 10 See ibid, art 1. 11 Ibid, art 23. 12 [1977] OJ L 361/60.

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Ciceronian Rhetoric, Or Something Else the Romans Did for Us - by Oliver Mitchell While many people have heard of the man more properly known as Marcus Tullius Cicero, particularly among the legal community, far fewer actually know anything about him or his techniques. Historically viewed as the legal orator par excellence, Cicero took the foundations of Greek and early Roman rhetorical study and built upon them a towering edifice of study of the art which created his career, launched him to the stratosphere of Roman political society and eventually got him killed, and in these days of American-inspired courtroom dramas in which the defence or prosecution counsels convince everybody to turn the verdict around with an impassioned (if unrealistic) speech, it is something of a shame that proper rhetoric is such a mysterious art. So how to insert astonishing rhetoric into your next moot, the like of which has not been heard since Churchill? Well, not at all really, since Churchill’s speeches were only very slightly influenced by the Ciceronian ideal, since their purpose was not to persuade, but rather to fortify, to reassure and to rally. On the other hand, it is the barrister’s task to convince an audience of unimpressed and possibly bored jurors that he is correct. Indeed, one might even use the construction I just have: it epitomises much of what Cicero taught and used himself. Firstly, the question: you are talking directly to your audience, and engaging them by causing them to think, rather than simply to listen to statements. It contains a deliberate fault which can be rejected in the following

clause and cites an important and almost universally admired historical character. Even this passing mention helps to establish a connection between Churchill and Cicero, despite the fact that it is unfounded. Next, the deliberate fault is refuted. Such a tool has clear use in the wider legal sphere. One might well ask of opposing counsel why his client was doing something which he clearly could not have done, then explain the impossibility of the situation while at the same time reinforcing one’s own point. At the end of that sentence, differences between the Churchillian and Ciceronian styles are given as explanation as why the former is not applicable in the courtroom, and it makes use of a tricolon, that is, an emphatic triple (in much the same style as Tony Blair’s infamous ‘Education, Education, Education’). The next sentence presents the alternative and, in this case correct, view, followed by a brief self-referential conclusion. All of this adds up to a concise yet effective and persuasive way to say why to study Cicero’s rhetoric rather than Churchill’s. All is not concluded, however! Cicero was never a mere technical analyst. For him, professional oratory represented a way of life and something of a philosophy. His frustration with the lack of skill among his colleagues led Cicero to write De Oratore, a manual of his version of rhetoric. While technical skills are important, Cicero was at great pains to explain the importance of being morally and factually aware.


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Obviously, one cannot make a proper speech unless one is in possession of all the facts, and one should be able to answer a question about any of their points at length and in detail. However, knowledge of human conduct (in vitam atque mores – literally ‘of life and morality’) is critical for the best orators. A defence or accusation may be based on factual evidence, but an understanding of human emotions and reactions is the only way to successfully take those facts and give them an immediate human relevance. Without that, they are simply statements of fact.

This being only a short article, there is not enough space to expound properly on the virtues of Ciceronian rhetoric, but the words of the great man himself can still be read. Many transcripts of his cases survive, of which I personally prefer his Pro Milone (‘In defence of Milo’), in which he successfully defended an accused (and definitely guilty) murderer. His De Oratore is also widely sold, and both are available in translation. An ancient Greek manual of rhetoric called the Progymnasmata is available for free and in translation at this web address:

http://rhetoric.byu.edu/pedagogy/progymnas mata/Progymnasmata.htm.

De Cicerone (About Cicero) Cicero, born in Arpinum (now in central Italy) and a contemporary of Julius Caesar, is hailed as one of the greatest orators of all time. He was a statesman and the closest thing ancient Rome had to what we might call a barrister. We know much of his personal and political life and his philosophy from a great variety of sources: from his speeches, his contemporaries and from personal letters. His use of, and contribution to, Latin is tremendous and it is doubtful that anyone who has studied the language has not studied Cicero. He met his death in the tumultuous period towards the end of the Republic. – Matthew Jay


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Language, law and the compelling voice in Belmarsh—a look at the power of language in legal persuasion - by Matthew Jay* ‘To succeed in the profession of law, you must seek to cultivate command of language. Words are the lawyer’s tools.’ –Lord Denning.1 What is the key to success in law? One answer is ‘work hard.’ However, those asking probably already knew that. I hope this article will provide at least one other answer to what is a very difficult question. Success entails many doors but the key to the first (and heaviest) is, I think, language. Language is fundamental to us. In discussion with friends and tutors, when talking to pets and flowers, when reading this article, we utilise language. Whether consciously or not, we are taken by great oratory and great prose; and history is filled with greats. Those who have read Bleak House will recall the sea of bewigged fog which hung around Chancery. Everyone remembers Churchill’s sombre and stirring ‘we shall fight on the beaches’ and the dream of Martin Luther King Jr. And despite the often dry nature of legal judgments, some speeches delivered in our courts can resonate just as effectively. This article will highlight Lord Hoffmann’s opinion in the Belmarsh case.2 The case is long but very important, as it raises a host of interesting constitutional and human rights issues. Unfortunately, there is not the space here to go into them. Instead, we shall simply see how useful and important language is when communicating and, as lawyers, persuading. Under the European Convention on Human Rights,3 states are allowed to enter derogations, so that rights conferred by the Convention will be suspended. To do this, there must be a public emergency which threatens the life of the nation and any measures taken must not be discriminatory and must be rationally connected to the aim pursued by the derogation. The questions for the House of Lords in Belmarsh were (a) whether there was a public emergency and (b) whether section 23 of the AntiTerror, Crime and Security Act 2001 (which allowed for the indefinite detention of foreign suspected international terrorists, but not suspected terrorists who were British nationals) was discriminatory and/or rationally connected to the aim of public security. The majority held that it was disproportionate and not rationally connected to the aim of public security and that it discriminated unfairly against foreigners. But they all thought that whether there was a public emergency was to be determined solely by the government. This is where Lord Hoffmann disagreed. Let us now look at his opinion and consider how his use of language is so effective. Lord Hoffmann sets the grave and important tone in the first paragraph: ‘This is one of the most important cases in recent years. It calls into question the very existence of an ancient liberty of which this country has until recently been very proud: freedom from arbitrary arrest and detention. ... Nothing [other than the power to arbitrarily detain] could be more antithetical to the instincts and traditions of the people of the United Kingdom.’ [86] An appeal is made to the historical pride of the English. Almost anybody raised in England will be aware of her unbroken history. Not since 1066 has a foreign force vanquished these isles and in that time, the inhabitants of these islands fought for, and fiercely defended, their liberties. But the speech is cynical, not patriotic. He is pointing out that we can no longer be proud of this heritage because, as he will come on to explain, we have destroyed it through fear and panic.


20 In the next paragraph, he says: ‘Someone who has never committed any offence and has no intention of doing anything wrong may be reasonably suspected of being a supporter [of terrorism] on the basis of some heated remarks in a pub. The question in this case is whether the United Kingdom should be a country in which the police can come to such a person’s house and take him away to be detained indefinitely without trial.’ [87] He is further careful to point out that ‘we are [not] concerned with some special doctrine of European law. Freedom from arbitrary arrest and detention is a quintessentially British liberty...’ [88] Again, we can see another emotional tug. Nobody wants this to happen to himself and nobody wants to live in a tyrannical society. More than this, however, is that Lord Hoffmann grounds this prospect in the familiar. In the first sentence just quoted, he takes the ominous threat of being deemed a suspected terrorist and juxtaposes it to the pub. Just ‘the pub’. The kind of place most of us frequent. He shows that the threat posed by section 23 is not something extraordinary: it could happen today, tomorrow, here, there: to you. Paragraph 91 is particularly crucial for the speech. The majority applied the ECtHR’s reasoning that an emergency will be said to threaten the life of the nation if it poses a material threat to the life and limb of some of its inhabitants. Lord Hoffmann’s analysis penetrates to the core of the meaning of ‘life of the nation.’ To him, the life of the nation ‘endure[s] through generations’ and ‘is not coterminous with the lives of its people.’ ‘Life’ is ‘metaphorical’. [91] ‘The Armada threatened to destroy the life of the nation, not by loss of life in battle, but by subjecting English institutions to the rule of Spain and the Inquisition. The same was true of the threat posed to the United Kingdom by Nazi Germany in the Second World War.’ [91] These ideas speak for themselves. Everybody understands immediately the danger which was posed by the Armada and Hitler and everybody can see that the cowardly acts of extremists do not have that effect. Terrorists do not subject us. Here yet again Lord Hoffmann plays to the English sense of historical identity and also to the (immaterial) fear of subjugation. From here, the speech builds to a ‘big bang’. Terrorism is a real threat [94] and ‘of course’ the government must protect its people, but this ‘is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms. There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom.’ [95] ‘Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda.’ [96] ‘The real threat to the life of the nation … comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.’ [97] These quotes, the lattermost of which ends the speech, do not require further comment. Before leaving this article, I should give a word of warning. Lord Hoffmann’s opinion is very ‘high and mighty.’ It will be rare that you will have to write in a similar tone (how many times have you


21 even seen the word ‘fissiparous’?). I said above that judgments tend to be dry. This is not through a lack of imagination or linguistic ability on the part of judges. It is because, for example, a case concerning the implied repeal of primary legislation is dry. Laws, L.J. went as far as to castigate counsel, in the judgment of the Metric Martyrs Case, for utilising passionate rhetoric.4 Make sure that in your writing you do not come across as either too pompous or too relaxed. No matter what you have to say, if you say it inappropriately, people will not listen. And do not feel that you must use lots of ‘big words’ and a convoluted sentence structure to sound intelligent. A reading of Lord Hoffmann’s speech shows that you can be effective by using a good mix of short, simple sentences, clear compound ones, and an everyday vocabulary. To come back to the original question posed, I have always thought, without going into the philosophy, that law is language. If you want to be an effective lawyer, you will need, as Lord Denning wrote, to master your language. Linguistic communication is an art like any other. If you practise enough, and absorb yourself in it, then, as nebulous as this advice is, you should be able to learn how to communicate to great effect. —— *

Third Year LL.B. University of Westminster; matthew.jay@my.westminster.ac.uk. I should like to thank Victoria Brooks and Emma McClean for their very helpful comments on earlier drafts. 1 Lord Denning (1979) The Discipline of Law (London: Butterworths), p. 5. 2 A and others v. Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68. The numbers in square brackets in the text refer to the paragraph numbers of the judgment. 3 For more information on the European Convention, see the Council of Europe’s website: http://www.coe.int (accessed 17/11/2011). The Council of Europe (do not confuse this with any of the EU institutions) is the regional organisation responsible for the Convention and the European Court of Human Rights (ECtHR). 4 Thoburn v. Sunderland County Council [2003] QB 151, [46]: ‘…in summarising [counsel’s] arguments on implied repeal I have not sought to give any impression of the passionate rhetoric with which they were delivered. It did not advance his client’s case. They are entitled to dispassionate justice according to law.’

Enforcing Human Rights and International Human Rights The ECHR is not the only human rights treaty to which the UK is a party, though it is the one which benefits from the strongest enforcement. The EU Charter on Fundamental Freedoms now stands alongside the EU Treaty and the Treaty on the Functioning of the European Union. However, Protocol No 30 to TFEU states that the Charter shall not create justiciable rights in the UK. Justiciability is also a problem with international (UN-level) human rights treaties. The International Covenants on Civil and Political Rights and Social, Economic and Cultural Rights bind the UK in international law but do not create legal rights at domestic level as the UK is a dualist state. The same is true for the many other Conventions which the UK has ratified (e.g. the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child). Even if these treaties were actionable, many states, including the UK, often seek to limit their obligations by entering reservations and, as seen in Belmarsh, derogations. These are major problems for the protection and enforcement of human rights. – Matthew Jay


The Legal Services Act: Creating Greater Ethnic Diversity or De-Professionalising the Legal Profession?

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- by Siobhan Duncan* The Legal Services Act has laid the foundations for effective change particularly through the creation of alternative business structures (ABSs). However, what does this mean for the future of the legal professions and perhaps most importantly, could it create greater diversity as regards to Black and Minority Ethnic groups (BME) in the professions? I have spoken to a prominent barrister who has given her views from the viewpoint of a BME entering the profession. Although she is optimistic for the future, she fears that pro bono work could begin to dwindle as competition tightens. Could this lead to the de-professionalisation of the legal profession? As a BME law student like many Westminster students, it is encouraging to know that the creation of ABSs should stimulate business diversity. If this forecast is correct, we might witness a move away from the traditional perception of lawyers as white, middle-class men. ABSs are regulated entities providing legal services and are staffed by lawyers and non-lawyers. The barrister, who has asked not to be named, emphasises that ABSs could have the potential to provide an olive branch in which people from wide-ranging backgrounds can firmly hold on to and be united in the legal professions. From her experience, she found it particularly difficult obtaining pupillage simply because many BMEs ‘did not fit the image’. But since being called to the bar in 1996 and specialising in public law, she has seen an increase in the number of BMEs entering the profession. Though there is still more work to do. The compulsory diversity data that all firms and chambers must publicise by 2012 could also be viewed as trying to encourage law firms and chambers to re-evaluate their stance on their employment practices towards BMEs. The emphasis, however, is rather on the Legal Services Act, which could act as a catalyst, accelerating the movement

towards greater ethnic diversity. Although diversity amongst BMEs may be improving in the legal professions, could this be to the detriment of pro bono schemes? Huge cuts to legal aid already place more pressure on law firms and chambers to engage in pro bono work as a social duty, but it seems that as competition and pressure increases, many firms and chambers are beginning to take the view that pro bono should be left to the state. It appears that the professions are becoming more businessfocused as opposed to client-focused. From this view, according to the barrister, the ABS could be seen as a ‘smoke-screen’ for a purely business orientated endeavour and this could essentially damage the very integrity of the legal professions. For some, part of becoming a lawyer is the prestige. But could the Legal Services Act and, more specifically ABSs, actually begin to deprofessionalise the very profession that BMEs have worked to desperately to break into? My interviewee does not necessarily believe so. She feels that it could be the key to unlocking change if those who are serious about entering the profession stay true to it despite growing pressures and changes to the legal structure. She argues that regardless of ABSs, employers will always seek to employ the most talented, charismatic candidates. It is clear that as a BME student, the future does seem promising as there will be alternative routes to practising law. There will always be hurdles and uncertainty, but the door is beginning to open for BMEs. Stepping through requires a level of intelligence, talent and above all, integrity in order to prevent this growing fear that the legal profession could become de-professionalised. *

Second Year LL.B. with French University of Westminster; Second Year Course Rep.


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Other Societies The Political Debating Society was set up to provide a

political platform at the university where all students interested in Politics have the opportunity to discuss controversial contemporary events and express their views on them. Occasionally, the society will organise discussion with prominent speakers from different areas of academia and policy making. Debating offers a great opportunity to enhance your skills of public speaking and critical thinking and it also enhances the flexibility to react quickly to new ideas together with the ability to present an argument persuasively. All these skills are crucial for building a successful career. All regular participants in the debating exercises stand out for their intelligence, which combined with the practice they receive, gives them a great basis for professional development. This academic year we organized a Debating workshop for the new member to teach them basic rules of structured debate (Karl Popper debating format), several structured debates between students, and discussions by experts. Most recently we hosted the debate Energy Security: Towards an International Crisis?, featuring panellists such as Professor Paul Stevens (Chatham House), Minister of State Charles Hendry MP, and journalist Tony Lodge.

The Global Ideas Society intends to be a forum for critical examination of mainstream and emerging thoughts and philosophies that have had or are likely to have an impact on society and culture. We have an open platform for new thoughts to be presented to members of our society, which will allow students from all disciplines to engage with the key thoughts of our age. For this reason, we will invite writers, speakers to attend our society and present thought-provoking lectures and discussions. To find out more information please visit the following pages: Add us on Facebook : http://www.facebook.com/global.ideas.soc Visit us on YouTube : http://www.youtube.com/user/GlobalIdeasSociety President of the Global Ideas Society, Gulum Alamgir, global.ideas@su.westminster.ac.uk

Call to other societies If you represent a society at the University of Westminster, we would love to hear from you. Many law students will not be seeking legal careers and will be looking to the alternatives. Please do get in touch with the President if your society might be interested in collaborating on an event which would be mutually beneficial. Our email address is barsocietywmin@gmail.com. Or if you would just like some free coverage in our next edition, send an e-mail to the editors at benches.mag@gmail.com.


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Acknowledgements This edition has been a collaboration among many. The editors would first like to thank the Editorial Team (in no particular order): Siobhan Duncan, Sean Gardiner and Sofia Karagiannopoulou. We have also been greatly assisted by our external contributors and all those who have taken the time to provide their feedback which has appeared throughout the magazine. Mention also goes out to those who have photographed Bar Society events: Anna Vye and Dora Manta.

The current Editors, all of whom sit on the Committee of the Bar Society, also wish to extend a very warm thanks to all those who have helped make the Bar Society a success. We cannot mention everyone here, though we have especially in mind Liz Duff, Paresh Kathrani, Andreas Philippopoulos-Mihalopoulos, Lisa Webley and all the academics and practitioners who very kindly volunteered their time both in events and behind the scenes. And, of course, gratitude is owed to all the students and Board Members, who, since February 2011, have come together to put on some incredibly exciting events. We hope that these have gone at least some of the way to fulfilling the Bar Society’s goals. - Wing-Yan Cheung, Alistair Henwood and Matthew Jay


Contact details Facebook: www.facebook.com/BarSociety.Westminster Website: www.westminsterbarsociety.net Bar Society e-mail: barsocietywmin@gmail.com Benches, Bars & Briefs Editors’ e-mail: benches.mag@gmail.com

Benches Bars and Briefs  

Benches Bars and Briefs Volume 2 University of Westminster Bar Society Publications