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the barrister

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7th april - 25th may 2007 www.barristermagazine.com

EASTER TERM ISSUE

A programme for the future success of the profession I believe in three guiding principles for the Bar.

Against background

APPOINTMENTS – 13 JUDICIAL A QUIET REVOLUTION

these

of the publicly and the privately funded Bar, and

it is instructive to

of the employed and self-employed Bars, must

review

work together as equals to preserve and enhance

objectives

the success of our profession.

2007 to see what

April saw the first anniversary of the Judicial Appointments Commission, the new, independent body set up to select candidates for judicial appointment in England and Wales.

principles, my

ISSN 1468-926X

Features

the

First, we must be a united profession. Members

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main

JAC Chairman Baroness Usha Prashar reviews the Commission’s achievements to date.

for

progress has been Secondly, our guiding light must be high

made.

standards in terms of both quality and ethics.

•

BAR VOCATIONAL 16 THE COURSE: MONEY WELL

Negotiating a

SPENT?

stable foundation Thirdly, the Bar must be, and be perceived to be,

for publicly funded

accessible to entrants from all backgrounds.

advocacy. •

GEOFFREY VOS QC, Chairman - Bar Council

Dealing with the increasing competition

The profession must have renewed confidence in

from HCAs in both prosecution and defence

its own ability to produce the best advocacy. It will

work.

only survive and prosper if we adhere to these

•

principles, and make each of them a reality.

entrants from all backgrounds.

By Tom Cross, BVC Student

Making the Bar more accessible to

p.6

By Fiona Woolf, President, Law Society

Chancery Lane in January gave their unanimous support to a motion critical of the government's

Legal aid has been at the centre of the law

approach to the proposed reforms to legal aid.

Society’s concerns for a long time now. We are

This sent a very strong signal to policy makers

confronting the long term under-funding of an

that I was able to report to MPs later that same

impoverished legal aid system and the additional

day when giving evidence to the Constitutional

threats posed by the government's foolhardy

Affairs Select Committee.

The SGM highlighted the strength of feeling among All involved in legal aid are caught up in a

both legal aid solicitors and the wider profession

maelstrom of hurried consultations on proposals

about the Governments plans. The Law Society

whose

The

wants the same result as all the solicitors who

Government is running major risks and if, as I

attended the meeting – a sustainable future for

believe, they are getting it wrong the price will be

legal aid and a commitment to the concept of

paid by the most vulnerable and needy members

access to justice to protect vulnerable clients.

of Society

The Society will continue to fight for

unknown.

that objective with all urgency. The 400 solicitors who attended the SGM at

The Criminal Defence Services Act reintroduced the means-testing of legal aid for criminal cases. It took effect in the Magistrates’ Court in October 2006 and is expected to be introduced into the Crown Court at the end of 2007. By Dr Peter Kenway, Director, New Policy Institute

News

timetable for changes to the legal system.

effect

IS THE REINTRODUCTION 38 WHY OF MEANS-TESTING FOR CRIMINAL LEGAL AID SUCH A CAUSE FOR CONCERN?

What Price Justice?

compound

I suspect that a significant number of those who sit on pupillage interview panels would openly state that a candidate’s performance on the Bar Vocational Course, or ‘BVC’, is one of the least important factors that are considered in determining applications

p.18 Tougher penalties for misuse of personal data p.19 LSC proposal for Family Graduated Fees: Some improvement but still major concerns, say LAPG Editor: Nigel Simmonds 0870 766 2715 email: info@barristermagazine.com Publishers: Media Management Corporation Ltd Publishing Director: Derek Payne

p.3

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the barrister

But it’s not just lawyers.

Our What Price

risks are greatly increased with a move to

Liberal Democrat and other parties shows that

Justice? campaign is supported by Shelter,

fixed fees which will significantly limit the

even the Government’s own back benchers

NSPCC, Mind, Child Poverty Action Group,

revenue earning ability of providers and will

are growing restless with the risks being

Refugee Council and the Advice Services

make the raising of the necessary working

taken on legal aid and access to justice.

Alliance. Much as Vera Baird spins the line

capital to finance the cash flow risk more

this is just a self interested whine got up by

difficult.

the Law Society, the fact is many recognize

These days, it really goes without saying

The broad coalition behind the WPJ campaign

the threat to legal aid and justice and in turn

that contract terms must be very tightly

is helping MPs to understand the importance

support our campaign.

drafted to minimise uncertainty, risk and

of legal aid as well as the impact of the under-

administrative

Public/private

investment. It is clear that MPs are very

burden.

contracts are carefully drafted to minimise

concerned about the future of the system.

We continue to engage closely on the

the scope for requirements, discretions and

The government and LSC are rushing through

profession's

changes resulting in increased cost and risk.

these proposals without the degree of detailed

behalf

with

the

LSC

and

government on their formal consultations.

consideration that is vital. The overall effect

The report we commissioned from economists

of these many changes is uncertain. If they

LECG exposed the fragility of the sector arising

A new legal aid contract must be clear, certain

are introduced to the current timetable there

from years of neglect. Now we are arming

and demonstrably fair. The unified contract

is a real risk that legal aid solicitors will soon

ourselves with more sound economic and

represents a step in the reform of legal aid,

be rarer than NHS dentists

legal arguments to address the very serious

which is why it is exceptionally important

shortcomings of the proposed reforms and

to get off on the right foot.

especially the new contract.

move forward when we have addressed the

The campaign to defend legal aid is also

imbalance between the legal aid practitioner

broadening, with the Magistrates Association

We can only

and the LSC. Whilst the LSC has taken on

and Senior Judiciary both having weighed in

I spent a miserable time over Christmas

some of our concerns, the contract they have

more recently.

trying to get my head around the LSC’s draft

published at the end of February does not go

Unified Standard Contract Terms 2007 – one

far enough. I hope that by the time you read

piece of the nightmare jigsaw puzzle under

this, more progress will have been made.

which legal aid lawyers will be forced to

But importantly to keep the campaign moving we have been asking our members for case

operate. It struck me as so unreasonable and

studies about people they've helped using

oppressive and so full of uncertainty that I

On other fronts, we continue to lobby

legal aid to deal with serious problems in

wondered if it would be enforceable.

One

parliamentarians intensively to secure a

their lives such as housing or family issues.

of the many troubles with the contract is that

viable future for legal aid. Early in January

This will raise public understanding of the

the LSC can change the contract terms like

MPs were given a detailed briefing on the

fundamental importance of properly-funded

it changes its socks. The contract drafting

threat to the future of the legal aid system

access to justice. We would also like to hear

is so loose that it is not really a contract at

in advance of a debate in Westminster Hall.

from you as barristers, if you have similar

all and you might as well agree to do as you

During that debate, MPs expressed concern

examples to share.

are told! My fears have been taken up by

at the lack of opportunity for parliamentary

external legal advisors. As I write, we are

scrutiny of the proposals.

providing that advice to legal aid contact holders so that they can make a properly

Radio 4's PM programme used our case

informed decision as to whether to sign the

So far, 140 MPs, 70 of them Labour, have

studies to run a 20 minute piece on legal

new contract themselves.

declared support for the Law Society’s What

aid in January – we need to keep up the

Price Justice? Campaign by signing an Early

pressure with sustained media presence,

Day Motion in Parliament. Nearly half of

to demonstrate to the Government that we

The LSC is moving us to a very different

those are on the Labour benches and this is

aren’t going to drop our opposition. Their

environment from the past where the public

increasing pressure on the government very

plans are wrong, their timetable foolhardy.

sector is asking the private sector to assume

helpfully.

and manage much more risk. The key risks Please write to me at president@lawsociety.

relate to the vagaries of the justice and social welfare systems, both of which are outside

This is a wake up call for the Government. The

org.uk or contact our Press Office, on 020

the control of legal aid providers.

level of support from Labour, Conservative,

7320 5811. The more evidence we and you

These

the barrister

can present to MPs and journalists, the more headway we will make.

For those of you who don’t know, you can

get

updates

our

campaign

www.whatpricejustice.lawsociety.org.uk. The

Call any of the countries below for the price of a UK national call

Law Society is committed to supporting its members working in the legal aid sector.

Right Here! Right Now! Of course this is an issue which unites solicitors and barristers; we want the government to commitment to access to justice as a reality,

You can begin using this service immediately.

and to enabling a sustainable legal aid system fit for purpose and fit for the future. I am

sure that a joint thinking approach from the profession will be more effective in protecting access to justice and achieving a legal aid system which can flourish.

We seek nothing less.

Just Dial the relevant access number for the country you wish to call (See below) At the prompt dial your international destination number in full (including 00)* That’s it ! you’re connected.

Access number 0870

794 8065 (weekdays) Access number 0844 570 8065 (weekend 5p) Algeria; Andorra; Antartica; Antartica, Mobile; Argentina; Argentina Buenos Aires; Armenia; Athens; Australia; Austria;

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A4 Concepts.indd 1

2/28/2007 4:28:36 PM

06 •

p.1

the barrister

Creating a blueprint for

to force the profession to fund the increasing

Making the Bar more accessible

the regulatory environment in

volume of public family cases by accepting

which barristers will practice in

lower fees. This is unfair and inappropriate.

It is good to see that much has been written on

the future.

It is not the lawyers’ fault that social

this topic in recent months. Historically, the

conditions lead to increased care issues, and

Bar has talked extensively about accessibility

the Government cannot expect the lawyers

and has appointed numerous working parties

quality of the service they receive from the

to accept reduced fees just because there

to consider the issue.

Bar.

are more cases.

is crucial that our present initiatives are

•

Finding ways to assure the public of the

Publicly funding work

The Family Barristers’

In this context, it

Graduated Fees Scheme must be preserved.

successful, and that they do not result in the

Despite these issues, I remain optimistic that

issue being kicked one more time into the

we will succeed in persuading the DCA/ LSC

long grass. We must act now to reduce the

that the availability of proper public funding

barriers to entry, both real and perceived.

for criminal and family cases is crucial to the As always, there is a mixed picture.

future of our democratic society;

reducing

I would be the first to accept that school

the fees to a level at which only the least able

placement programmes and a BVC loan

The good news is that the criminal revised

will be prepared to do the work is a recipe

scheme (which the Bar Council and the Inns

advocacy graduated fee scheme (RAGFS)

for disaster.

are collaborating to introduce now) will not

that Lord Carter recommended will now be

be enough, by themselves, to achieve the

put in place in April 2007. It will provide

desired results. But they are a step in the

increases in fees for defence work, restoring the ravages of inflation over the last 10 years,

right direction. The fact that we need some

Competition from HCAs

fundamental culture changes is not an excuse

and providing the redistribution from the

for doing nothing.

We need to persuade

long cases to the 1-10 day cases that we have

Advocacy is a specialist skill in which

our own people to realise that the Bar is an

campaigned for. I cannot over-estimate the

barristers generally excel. Barristers do not,

intimidating profession even to the most able

amount of work that so many practitioners

however, have a monopoly on the practice

entrants.

and Bar Council staff have contributed

of advocacy. It is a fact of life that HCAs are

present ourselves as genuinely accessible, we

towards achieving this.

increasingly keen to compete for advocacy in

can start to explain how selection processes

Crown Courts and elsewhere.

within

There are other less positive developments.

Competition

Once that is understood and we

Chambers

can

made

on a level playing field is to be welcomed.

equitable so that the candidates from the less

But quality controls must the same for all

traditional socio-economic backgrounds are

First, the Government has brought forward

advocates

not disadvantaged.

the time when the RAGFS and the new

Advocates in the CPS, in solicitors firms, and

litigators’ graduated fee scheme (LGFS) may

at the self-employed Bar must be judged by

be harmonised, so as to produce one case

the same standards, and the work should

one fee, to October 2008.

be awarded on the basis of merit and fair

At that time, it

is intended to introduce price competitive tendering (PCT).

undertaking

the

same

work.

The new regulatory environment

pricing.

Our view is that neither

In the context of the passage of the Legal

measure is necessary or appropriate, and we

The quality of the justice system will be

Services Bill through Parliament, much has

intend to argue our case forcefully during the

threatened if advocates are chosen because

also been written recently on this topic.

forthcoming consultation process.

they are available in-house without regard to

believe that the new regulatory environment

whether or not they are sufficiently able and

is an opportunity for the Bar to launch

Secondly, the Government has no clear

experienced to undertake the type of case in

itself into the 21st century with renewed

direction

recent

question. Moreover, it blows a gaping hole

confidence.

consultation paper suggests a cut rate version

in the Carter philosophy of the advocate’s

Bar Standards Board (BSB) and the light

of the present scheme.

VHCCs,

and

their

Regulation by the ring-fenced

What is needed is

ownership of his/ her cases, if HCAs in

touch oversight regulator, the Legal Services

an architecture which will incentivise early

the CPS or in solicitors’ firms keep a case

Board, should persuade even the most

preparation and efficient disposal of long

in-house until they see if it cracks, before

sceptical member of the public that the Bar’s

cases.

That can only be achieved if case

deciding to instruct self-employed counsel

house is truly in order.

fees are bid or negotiated so that the highest

only if it looks like a fight – and then only at

quality advocates can take ownership of the

the last minute.

This undesirable practice

If the Bar Council (through the BSB) accepts

cases and achieve fast, just outcomes.

is becoming more prevalent and should be

after the present consultation process that

stopped: again it threatens the quality and

it is prepared to regulate all those who

efficiency of justice.

undertake full time advocacy in whatever

Thirdly, the prospects of the forthcoming (at the time of writing) consultation on family

business entities, the last vestiges of restrictive

fees are not comforting. There is an attempt

practices will be gone.

The Bar will be

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08 p.6

the barrister

competing on an equal footing

years call. Thirdly, the establishment of the

with all other advocates.

And I

Bar Quality Advisory Panel to assist those who

for one have no doubt that we

fall below the usually high standards of the

will compete successfully with all

profession. Fourthly, the BSB is undertaking

comers, because we can provide the highest

a major quality assurance review to ascertain

quality service at the lowest price, since

what measures are necessary to reassure

we generally have (and we generally need)

the public that they are receiving a quality

the lowest overheads and infrastructure to

service.

undertake our work efficiently.

Conclusion Quality assurance We must have confidence in the profession Barristers have conventionally thought that

of which we are part. The future is bright

they did not require any kind of quality

if we grasp the opportunities that present

assurance or accreditation.

themselves.

Surely, they

The demand for high quality

would say, the fact that we are members

advocacy is greater than ever, and we know

of one of the great professions is enough

that we are best placed effectively to service

for our clients to be confident in the quality

that demand.

of services we offer.

And more than that,

surely we are quality controlled by solicitors exercising experienced judgment in choosing whom to instruct for a particular case.

Geoffrey Vos QC, Chairman, Bar Council

A problem has now developed with this approach, work. by

least

publicly

funded

Less real choice is now exercised

prosecuting

authorities

and

defence

solicitors, particularly in respect of very junior advocates.

This is because the solicitors

in charge of cases are not often able to justify the time spent in attending Court to sit behind their instructed advocates. As a result, quality assurance mechanisms are more necessary to provide confidence in the capability of the advocate. In addition, it is for the benefit of the profession to be able to demonstrate effective quality control processes.

We should not

be afraid of these innovations.

They are

needed to enable the Bar to thrive in the modern world, where competence has to be demonstrated at every stage of a professional career. There are presently 4 initiatives on the quality front: First, the new quality assurance scheme recommended by Lord Carter, which will be introduced in the first instance for publicly funded criminal work.

Secondly, making

advocacy training a compulsory part of the CPD requirement for those between 4 and 6

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the barrister

Justice Reinvestment: a new approach to imprisonment and public safety By Andrew Coyle, Professor of Prison Studies, King’s College London

n February 2001 the number of

of “honest hard-working families”. More

some considerable way to explaining why

people in prison in England and

fundamentally, the task of the judge is to

the number of people in prison is increasing

Wales was 66,600 and Tony Blair

interpret and implement the law as enacted

exponentially at a time when crime is falling.

announced

government’s

by Parliament. Time was when we looked

As soon as a person who has a mental

intention to provide 2,500 new

for one major criminal justice bill in the life

health problem or a drug addiction problem

prison places as part of a ten year

of each Parliament. We have become used

commits an offence, the criminal justice

plan to deal with crime. In July 2006 the

in recent years to having several in each

system kicks in and takes priority, however

number of people in prison had risen to

session of Parliament. So long as government

reluctantly, over all other considerations.

78,400 and the Home Secretary announced

introduces more punitive criminal justice

The consequence of this, and one which I

his intention to provide an extra 8,000 prison

legislation in each session of Parliament

fear has not yet been recognised, is that if

places. These additional prison places are

and the police, prosecution and judges apply

the criminal justice system continues to be

numbers plucked out of the air or at best

these new laws, as they must, the demand for

used as a means of coping in the short term

made up in response to the latest crisis of

more prison places becomes insatiable.

with what are primarily health and social

the

problems, then there will be almost no limit

prison overcrowding. The media has recently

to the number of people who are likely to be

reported Home Office plans to purchase prison ships, to use former Army barracks

This has brought us to the position in 2007

and to convert disused psychiatric hospitals

where additional prison places are not

into prisons.

needed in response to an increase in crime.

sent to prison.

According to all reliable indicators crime has

Linked to this is the fact that the sentences

not been rising in recent years, nor has the

being handed down by courts are increasing

The question of how many prison places

number of convictions. In a joint consultation

in length. Over ten per cent of all prisoners

are needed in this country has exercised

paper Making Sentencing Clearer published

are now serving indeterminate sentences, a

governments for many years and successive

in November 2006 the Home Secretary, the

higher number than are serving sentences of

Home Secretaries have responded in different

Lord Chancellor and the Attorney General

less than 12 months. This is unprecedented

ways. Some have expressed an opinion about

provided

has

and has serious implications for the future

the need for a greater or lesser number of

become tougher, with offenders more likely

since, by definition, this means that the rate

prisoners. In the mid 1970s Roy Jenkins

to get a prison sentence for almost any

of imprisonment is unlikely to come down if

voiced great concern at the possibility that

offence and that sentence is likely to be

current provisions remain in place.

the number of people in prison might rise to

longer.” As a consequence of this, the three

45,000. During his tenure in that great office,

Ministers pointed out that there are people

Douglas Hurd talked of the need to reduce

in prison who should not be there. They

All of which leads inexorably to the conclusion

the prison population. More recent Home

stated that these include foreign prisoners,

that if the Home Secretary intends simply to

Secretaries have taken the pragmatic view

who should be deported; vulnerable women

continue to provide as many prison places

that the number of prisoners will be dictated

and young offenders; those for whom mental

as are needed, then the figure of 8,000 new

by the judges and that the task of the Home

health treatment would be more appropriate;

places will be hopelessly inadequate. As in

Office is simply to provide as many places as

the majority of non-violent offenders with

so many other areas, our experience in the

are required.

low level disorders, who could be treated

United Kingdom may well be ten or 15 years

in the community without any risk to the

behind the experience of the United States,

public; and those on remand for less serious

which has already gone down this path.

offences.

Their level of imprisonment now stands at

However, judges do not sentence in a

the

answer.

“Sentencing

738 per 100,000 of the population. The

vacuum. At a personal level they are affected

rate of imprisonment in England and Wales

by the political and media climate in which they operate. A sensitive judge cannot fail

The fact that the criminal justice system in

stands at 148 per 100,000, the highest rate in

to be influenced by consistent demands

general and prison in particular is being

Western Europe. If in a decade or so we were

that the criminal justice system should be

used to deal with problems of mental health,

to reach the American rate of imprisonment

“rebalanced” in favour of the victim and

of drug addiction and of homelessness goes

then the Home Secretary would have to

the barrister

11 Part of the TAX Watchdog organisation

provide a total of around 400,000 prison places. That is, not an additional 8,000 places but an additional 320,000 places. And this will happen unless we decide otherwise.

It is worthy of note that the one government department which seems to understand this A UK wide service. Est. 1996

is the Treasury. Since 1997 around 20,000 additional prison places have been provided in England and Wales. Reports indicate that the Treasury has finally baulked at continuing to provide a blank cheque for prison building at a time when spending on other public institutions such as schools and hospitals

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the barrister

prisons and then rent them out to private

lasting change in crime-ridden localities

for

prison operators, thus providing the investor

or to improve the quality of life for the

imprisonment in England and Wales has

with a guaranteed dividend from the rental

residents. The ICPS project, called Justice

existed in its present form since the 19th

income. Such a model would still leave the

Reinvestment, is seeking to discover whether

century. It is clearly, to use a current phrase,

Home Secretary having to find the necessary

there might be another way to give towns,

not fit for purpose and needs a fundamental

revenue to finance these new prison places

cities and communities a better return on

overhaul. If it is the system itself that is

on an annual basis.

the money which is spent in the name of

no longer effective, then simply making it

The average cost of keeping a person in

improving their quality of life.

more efficient means that we are merely

prison for one year is around £40,000.

radical

proposals.

The

system

improving the wrong system. Increasing its

That means that the cost to the taxpayer of

Take, for example, Birmingham Prison which

use compounds the error. The tax payer

maintaining a prison with 700 places will

holds around 1,450 prisoners. Because of

will be asked to pump more billions into the

be around £28 million per year. This figure

overcrowding and lack of facilities, the cost

system; we may end up with 400,000 of our

means little to the man or woman in the

of holding a prisoner in Birmingham prison

young men and women in prison; and we

street who has no point of comparison. Is

is lower than the national average, in the

will end up feeling less safe than we do at

it a lot, or not much? The reaction might

region of £30,000, and so the total cost to

present.

be that this merely shows that prisoners

the tax payer is around £43 million per year.

are being mollycoddled, given unnecessary

At present that money is paid by the Home

luxuries. Or it might be that if that is what

Office with funding from the Treasury. There

Out of every challenge comes an opportunity.

it costs, then so be it. These reactions are

is little local debate about the value which it

It would be to the advantage of all of us if

unlikely to change while these amounts of

provides to local communities in Birmingham

government ministers, instead of taking the

money, which represent poor value for public

and the West Midlands. Would people feel

easy option and simply providing ever more

money but which are relatively small in

safer if there were only 500 prisoners in

and more prison places, were to pick up that

terms of national government spending, are

Winson Green Prison; or if there were 2,000

challenge and look for a radical solution to

calculated on a national basis. If, however,

young men in the prison? The fact is that

the problem of increasing prison numbers.

they were to be calculated locally then the

we have no way of knowing what would be

public might react differently.

a sufficient amount of imprisonment for the people of Birmingham.

The International Centre for Prison Studies (ICPS) in King’s College London is currently

One way of finding out would be to discover a

engaged in a project along with other partners

mechanism to help the citizens of Birmingham

including local government to consider how

to identify as their money the £43 million

the tax payer might get better money for some

that is spent each year on the local prison.

of the resources that are spent on criminal

They could then be asked how they wanted

justice. The fact is that most crime happens

that money to be spent in order that they

locally, in streets, on estates, in shopping

might feel safer and their quality of life be

centres, in neighbourhoods. Local authorities

improved. They could decide through the

are responsible for keeping their areas safe

courts to continue to send 1,450 of their

and for providing the services to deal with

young men to prison and that would be

a range of social problems. Yet, decisions

the money spent. Alternatively, they might

about crime prevention and criminal justice

decide that actually only 500 were such a

expenditure are mainly taken at the national

threat to the community that they needed to

level. Imprisonment is the most costly

be removed from it. In that case, the prison

intervention available to the criminal justice

spend would be around £15 million. That

system. The local area sees little benefit from

would leave £28 million to be spent in other

that expenditure, except very short term

ways that would improve public safety and

relief from the activities of those imprisoned.

quality of life. It would be for the community

On their return, released prisoners still need

to decide what these might be.

drug treatment, or employment training, or mental health support, or basic education, all of which need to be provided locally

This is a radical proposal which needs a

out of non-criminal justice budgets. Criminal

fuller examination than this short article

justice expenditure often fails to achieve any

can provide. However, the time has come

the barrister

Judicial appointments – a quiet revolution April saw the first anniversary of the Judicial Appointments Commission, the new, independent body set up to select candidates for judicial appointment in England and Wales. JAC Chairman Baroness Usha Prashar reviews the Commission’s achievements to date. minister. For example, the judiciary is often

JAC’s collective strength comes from each

involved in adjudicating on lawfulness of

Commissioner’s knowledge, expertise and

he Judicial Appointments

the actions of the Executive. And so the

– above all – independence of mind. Their

Commission will shortly be

appointments system must be, and must be

task is to select candidates for judicial office

celebrating its first birthday.

seen to be, independent of Government.”

in England and Wales across all areas of the

Introduction

judiciary, from high court judges to non-legal

During our first year we have made a number of

It should be noted that the JAC’s role is to select

tribunal members and to recommend one

significant

candidate for each vacancy.

and recommend, not to appoint candidates.

the ways in which judicial candidates are

For each vacancy JAC Commissioners will

selected for office, and we have developed

select one candidate to recommend to the

At the outset the JAC set ourselves three

a wide-ranging programme to encourage

Lord Chancellor for appointment. The Lord

main tasks: first, to define merit – that is,

eligible candidates from the widest range of

Chancellor can reject that recommendation

what makes a good judge; second to identify

backgrounds to apply.

but he is required to provide his reasons

fair and effective assessment methods; and

to the Commission. He cannot select an

third to devise ways to reach and encourage

alternative candidate.

a wider range of applicants. In carrying out

changes

The Constitutional Reform Act

these tasks we reviewed every aspect of the previous selection process across all sectors

The JAC was set up in April 2006 as part of the far-reaching changes bought in under the

About the Commission

of the judiciary, from where we advertise through to our final recommendation to the

Constitutional Reform Act 2005, which also reformed the office of Lord Chancellor, and

The UK has one of the most highly respected

Lord Chancellor, and we consulted widely on

established the Lord Chief Justice as head of

judiciaries in the world. We have been careful

our proposed changes.

the judiciary of England and Wales.

not to introduce change for change’s sake: the JAC has been mindful that nothing we do

The JAC was set up in order to maintain and

must jeopardise the outstanding reputation

strengthen judicial independence by taking

of our existing judicial office holders.

What makes a good judge? Our new definition of merit comprises five

responsibility for selecting candidates for judicial office out of the hands of the Lord

But the old system of appointments was not

core qualities and abilities, with seventeen

Chancellor and making the appointments

without its critics. One perceived problem was

supportive behaviours. These are the criteria

process clearer and more accountable.

the way in which candidates were identified

against which all judicial applications are

as potential applicants. There was a feeling

assessed. They replace the previous system,

This is a major historical change: for the first

that the system didn’t reach out to applicants

which involved a complex matrix of up to 50

time in its 1000 year history the judiciary

- that you had to be already in a favoured

competencies and behaviours.

is fully and officially independent of the

position to consider applying. We also heard

government and the Lord Chancellor no

criticisms of the process itself, which was felt

longer has the power to choose which judge

to be overly cumbersome and bureaucratic,

to appoint.

and not sufficiently open.

The Constitutional Reform Act was designed

The new, independent Commission selects

in their fields; who can quickly absorb

to enhance the independence of the judiciary

candidates solely on merit, using streamlined

and analyse information; and who have

and to ensure clarity in the relationship

and transparent processes. We are also

appropriate knowledge of the law, and its

between the Executive and the judiciary. The

committed to widening the range of judicial

underlying principles.

current Lord Chancellor, Lord Falconer of

applicants: to seeking out merit, wherever it

Thoroton summed up the issue well when

can be found.

Our new qualities and abilities are: • Intellectual capacity. We are looking for people who show a high level of expertise

• Personal qualities. We want people to demonstrate integrity and independence of

he said: The JAC is made up of 15 Commissioners,

mind, who show sound judgement and are

“In modern democratic society, it is no

including

decisive and objective.

longer acceptable for judicial appointments

professionals. The Commissioners themselves

to be entirely in the hands of a government

were selected through open competition. The

judicial,

legal

and

non-legal

• We will select only those candidates who

the barrister

show that they are able to treat everyone

identify fair and effective selection methods.

developing our new high-level policies, the

with respect and sensitivity, and are willing

We have streamlined the application process

JAC managed over 40 selection exercises,

to listen with patience and courtesy.

considerably, reducing the application form

including High Court, Deputy District and

by almost a half, to 13 pages. We have

District

• Authority and communications skills are

introduced technical tests and case studies

Tribunal, Care Standards Tribunal and many

essential. Judicial appointees must be able to

in place of a previous system of paper ‘sifts’.

others. So far, some 50 Selection Exercises

inspire respect and confidence, and maintain

For High Court appointments, in particular,

are scheduled for the forthcoming financial

authority when challenged.

the selection process has been made more

year.

Judges,

the

Gambling

Appeals

transparent: all candidates are now obliged to • And they must be efficient, able to work

complete an application form, and references

under

are sought openly and fairly.

pressure

and

show

appropriate

leadership or management skills.

Widening the range of applicants Our third task was to devise ways of reaching

Current programme In addition to these qualities and abilities, the

a wider range of applicants. It is worth stressing again here that the Commission

JAC has published a new ‘good character’

The JAC’s role in the judicial appointments

selects candidates on merit, and merit alone.

guideline. In the past, the Lord Chancellor

process begins when Her Majesty's Courts

We do not have any targets or quotas, and

has always considered whether or not a

Service or the Tribunals Service, working

we do not positively discriminate in favour of

candidate for appointment was of suitable

with the senior judiciary, identify what

any applicant, whatever their background.

character, but for the first time there is a

appointments they will need and issue us

statutory duty on the JAC to determine good

with a vacancy request. We then seek out

Our aim is to seek out merit wherever it can

character and to publish guidance.

the very best candidates, using our new

be found, and to find new ways to attract

processes and the qualities and abilities

suitable candidates, who for various reasons

The judicial selection process

outlined above.

are put off from applying at present. So we

The second task we had set ourselves was to

During 2006/07, at the same time as

are using better-targeted and more prominent advertising to encourage people to apply. We

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are expanding and modernising our outreach,

puts pressure on many of our institutions, not

including a much greater emphasis on online

least the courts. Whatever those pressures

marketing, and working in collaboration

– from the media, from public opinion, or

with partners such as Association of Women

from the Government – the judiciary must

Barristers, Society of Asian Lawyers, Black

be seen to uphold the values of justice and

Solicitors Network and many others. We

independence for which they are renowned.

have also developed a monthly newsletter

The JAC’s aim is to select very best candidates

listing all current and forthcoming judicial

for judicial office, on merit, through a system

vacancies. We are also engaged in extensive

which is open, accessible and transparent.

outreach work, including regular roadshows

In this way we can help maintain public

and speaking engagements at conferences

confidence in the institutions that defend our

and events.

freedoms, and administer our justice.

The JAC does not work in isolation. We have

Further

developed a trilateral Diversity Strategy with

its

the Department of Constitutional Affairs and

judicial

the Lord Chief Justice. This commits all three

www.judicialappointments.gov.uk

information

selection

process,

vacancies

are

the and

available

JAC, current from

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the barrister

‘The Bar Vocational Course: money well spent?’ I suspect that a significant number of those who sit on pupillage interview panels would openly state that a candidate’s performance on the Bar Vocational Course, or ‘BVC’, is one of the least important factors that are considered in determining applications By Tom Cross, BVC Student

ualifying to be a lawyer is not

pupillage, performance on the BVC is rightly

to learn the skills at a sensible pace and in a

straightforward nowadays, if

a lesser consideration. Few would disagree,

sensible order.

it ever was. Quite aside from

after all, that academic ability is important

showing dedication to their

at the Bar (not least because true academic

The course is not just a question of box-

often

success comports a certain work ethic), and

ticking. Students can take a great deal from

the

that there can be no substitute for experiencing

the BVC into pupillage. Three examples might

unenviable task of trying to decipher exactly

real life cases with a pupil-supervisor as a

persuade the reader.

what on earth all the abbreviated course

means of training. What prompts this article

names stand for. The ‘law degree route’ to

is not a concern about that but rather about a

Firstly, it is now common for a student’s

qualification involves an LLB or BA, which

distinct yet often conflated view: that the BVC

performance in an advocacy class to be

may be followed by an LLM or a BCL and

is of minimal value to the embryo-barrister,

recorded on DVD, affording him an opportunity

possibly an LL.D. For my part, I took the ‘non-

or, worse still, is simply not worthwhile. The

to observe his court demeanour which he

law degree route’: a BA in Modern Languages

fact is clear: although they may not admit

would otherwise probably never have. As a

followed by a CPE (otherwise known as a

it in formal surrounds, many fully-qualified

result, friends of mine have been able to iron

GDL). This ‘academic’ stage complete, aspirant

barristers remain of the view that the BVC

out undesirable features of their advocacy

solicitors then take the LPC. Barristers-to-be

sooner deserves their disregard than their

before ever appearing in court. The Civil

have to complete the BVC at provider schools

respect. They are, I think, wrong to do so.

Procedure Rules require the court to make

demanding

students

today

studies, face

like BPP or ICSL. Successful candidates are

use of technology where appropriate to do so

then called to the Bar in a state of frank

Today’s BVC is very different from old ‘Bar

to further justice; the same principle is now

bewilderment as to which course they did

Finals’. There is no particular academic

rightly applied to Bar training.

when, and, more importantly, how useful they

emphasis on the new course. It is fundamentally

all were for the pupillage that awaits them

‘vocational’. Designed and taught well, a

Secondly, the practically-based BVC forces

at the start of their professional life. The

modern BVC will never fully equip the law

students to appreciate the differences between

pupillage that awaits those fortunate enough

student for pupillage, (and even less so for a

academic law and law in practice, and helps

to have obtained one, that is.

pupillage in a specialised area of the law), but

them to bridge that gap. My outstanding

it gives him or her a running start. It covers

recollection of academic contract law is that

I suspect that a significant number of those

a wide range of general skills, including civil

it comprised a succession of cases about

who sit on pupillage interview panels would

and criminal litigation, advocacy, conference,

horses (I do myself only a minor disservice).

openly state that a candidate’s performance

negotiation, legal research, opinion writing,

A necessary prelude to the application of

on the Bar Vocational Course, or ‘BVC’, is

drafting, and professional ethics. And contrary

law in practice, my study of contractual

one of the least important factors that are

to the belief of those out-of-touch, it is hard

theory (‘is freedom of contract a good thing’?)

considered in determining applications. Less

work.

nonetheless failed to make me appreciate

important, that is, than purely academic credentials

gained

through

school

the significance of contractual remedies in

and

Even the student with pupillage already

the real world. Working on a typical BVC

university examination performance. Less

secured is ill-advised to take the BVC lightly,

case, I now ask: what precisely are the terms

important than participation in traditionally

because

briefs

alleged to have been breached? Is there, in

recognised forms of legal training such as

(sometimes actual past cases) throw up many

fact, a breach? Are the Defendants entitled to

mooting or debating. Less important, too,

of the issues which typically arise in real life.

withhold payment entirely under the contract

than a candidate’s potential to ‘fit in’ to

Although the course is designed primarily

or must they pay now and claim damages

Chambers. A prevalent belief amongst many

for the general practitioner who concentrates

later? I feel confident enough now to apply

practitioners of all levels of seniority is that

substantively on contract, tort and crime,

these practical concerns to all cases in which

the inevitably artificial training offered by the

the ‘specialist’ is catered for with options

they are pertinent, regardless of whether there

BVC can never compare to the real learning-

such as Chancery and Public Law. The best

is any equine content on the facts.

curve experienced during pupillage.

BVC providers timetable classes on criminal

the

well-designed

‘mock’

and civil litigation to precede corresponding

Thirdly, the requirement on the BVC to

Far be it from one not yet called to the Bar

classes in advocacy in the same week so that

study ‘Professional Ethics’ should not be

to comment upon these views. It may well be

relevant procedure and tests are fresh in the

undervalued. In classes last term, I found

that, in assessing the quality of applicants for

advocate’s memory. Students have the time

it interesting how many students, before

the barrister

becoming familiar with the Code of Conduct,

date statistics, The Training Contract and

the occasional exception, it is not their fault

would have withdrawn from representing a

Pupillage Handbook 2007 suggests that out of

that insufficient places are available at the

criminal client they believed was guilty, even if

the 1,745 applicants successfully enrolled on

end of the road. It is not their fault that they

the client had not expressed his guilt to them.

the BVC in the year 2004-5, 598 candidates,

may now be in considerable debt.

It is surely essential that future barristers

at most, commenced pupillage, of which only

understand the adversarial underpinning of

544 were taken on as tenants. Even taking

At least the increasing availability of places on

our justice system before they become vital

account of those who abandon Bar training

this valuable course gives students the chance

members of it.

of their own volition, these figures remain

to apply for pupillage with practical training

startling.

under their belt. However, if people who

The above granted, there remain justified criticisms

the

BVC.

The

would otherwise be unable to get pupillage

hugely

This ratio of those who are offered a place

prior to commencing the BVC are realistically

disproportionate fees of the nine month

on the course to the number of places

to have their chances improved by taking it,

course are a plain disgrace. In central London

available in pupillage is, in my view, wholly

the way in which the BVC is regarded by

nearly £12,500 is charged. Even in spite

disproportionate. The contrary view holds that

practitioners may need to change. A student’s

of the availability of Inn scholarships and

to apply the ‘bottleneck of selection’ earlier,

success on the course should, in my view, be

possible ‘draw-down’ money from chambers’

narrowing the field of realistic candidates

an important factor in pupillage decisions,

pupillage awards, the size of the fees does

after only their academic lives, is no better

because it is a serious course from which a

the Bar no credit at a time when it is rightly

in principle. That is not an argument without

great deal can be learned. The Bar should

committed to attracting candidates from all

merit, and on that note it is worth bearing

take greater notice of it.

financial backgrounds. To stress that banks

in mind that the BVC can still be a useful

are more willing to lend to future barristers

qualification for careers other than the Bar,

(on the basis that barristers, as opposed to

such as in business. But the two-thirds of

Tom Cross is currently undertaking the BVC

many other professionals, will be able to

students who pay some £12,500 for the BVC

at a London provider. He begins pupillage at

afford to pay off significant debt in the future)

and for whom no pupillage is available at

Francis Taylor Building (formerly 2 Harcourt

is a weak point in defence of the current

the end are not all naïve and foolish to waste

Buildings) in October 2007, specialising in

situation: fewer than one third of those who

their money. Most genuinely believe that if

Public Law.

complete the course end up in pupillage, not

they work hard, ‘having a go’ might just bear

to mention with tenancy. In its most up-to-

fruit. Are they to be blamed for trying? With

s i l yy Case a D of Ke k

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NEWS ROUND UP

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NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Tougher penalties forNEWS misuse ofNEWS personal NEWS NEWS NEWS NEWS NEWS NEWSdata NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS For the first time courts will be able to jail people who trade in - or deliberately misuse - the personal data of others, in a move to crack down NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS on the illegal trade in personal information announced by the Department for Constitutional Affairs in February. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The decision follows a public consultation on increasing penalties for deliberate and wilful misuse of personal data and is part of the Government's NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS strategy on data sharing to deliver better public services to individuals. The Government has been increasingly concerned about an apparent NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS growth in the trade in personal data. Current penalties of a fine in the Data Protection Act 1998 (DPA) have not provided a sufficiently strong NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS deterrent. These concerns were highlighted in special reports to Parliament by the Information Commissioner, What Price Privacy, and What NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Price Privacy Now? Lord Falconer, Secretary of State for Constitutional Affairs and Lord Chancellor, said: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS "We are determined to do all we can to stamp out this intrusive and illegal trade. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS "People have a right to have their privacy protected from those who would deliberately misuse it and I believe the introduction of custodial NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS penalties will be an effective deterrent to those who seek to procure or wilfully abuse personal data. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS "Greater data-sharing within the public sector has the potential to be hugely beneficial to the public and is wholly compatible with proper respect NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS for individuals' privacy. One of the essential ways of maintaining that compatibility is to ensure the security and integrity of personal data once NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS it has been shared." NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Bar warns Peers of cost toNEWS consumers Bar Council in lobby NEWS NEWS NEWS NEWSpush NEWSover NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS of new legal services bureaucracy independence ofNEWS legalNEWS profession NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The Bar Council, has given its strongest warning yet over the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS potential costs of the proposed new Legal Services Board and the The Bar Council has launched a major new lobbying offensive over the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Office of Legal Complaints. Legal Services Bill, currently before the House of Lords. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The creation of the Board is a central plank of the Legal Services The Bar has voiced concerns during the passage of the Bill NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Bill. about the impact it could have on the independence of the legal NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS profession, arguing that its contribution to the UK economy could be NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS In a strongly worded letter to key members of the Upper House, jeopardised. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Geoffrey Vos QC, Chairman of the Bar Council, says: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS It has also warned of the high cost of setting up the Bill’s proposed NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS ‘The Joint Committee, which considered the draft Legal Services new regulatory architecture and the need to limit such costs by NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Bill, concluded that the Government’s estimate of the costs of the ensuring that the new Legal Services Board is a truly light-touch NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS new regulatory framework were “speculative at best”. regulator, and by giving the Office for Legal Complaints the power to NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS delegate complaints handling to the Bar Council, acting through the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS ‘We agree with that assessment and remain profoundly sceptical Bar Standards Board. The Bar Council’s record on handling consumer NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS about the efficiency savings claimed for the Bill.’ complaints has been both excellent and economical. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The influential Joint Committee, chaired by Lord Hunt of Wirral, The Bar Council has now written to 200 Peers and begun a round of NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS last year invited the Government to revisit its claims that the Bill face to face meetings to press home its case. Amendments reflecting NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS would produce savings. But the Department for Constitutional its concern have already been tabled during the passage of the Bill to NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Affairs claimed in January 2007 that, after “short-term transition date, though Ministers have as yet been unwilling to make changes. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS costs”, there would be a long-term annual saving of running costs NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS from 2008 of £9.6 million, of which £6.5 million would accrue to the Commenting on the lobbying initiative, Bar Chairman Geoffrey Vos NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS professional bodies. QC: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS This, the Department claims, would be “passed on to providers ‘The Bar is concerned that the provisions relating to appointments to NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS (through reduced practising certificate fees) and then to consumers the new Legal Services Board will weaken the perceived independence NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS (through charges)”. of the legal profession, by placing too much power in the hands of the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Government. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Mr Vos says: ‘We believe that this is wishful thinking, and note that NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the Department describes its own figures as “indicative, rather ‘Apart from the constitutional significance of this proposal, we believe NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS than statistically robust”.’ that the Government’s approach could have a detrimental effect on NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS our overseas markets. This approach could well threaten the Bar’s NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS He added: "the costs regime under the Bill is particularly £200m contribution to the value of the UK ’s service exports. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS unfair because the Government pays for the present system of NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS oversight regulation which is undertaken by the Department for ‘We propose that the Chairman and members of the LSB should be NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Constitutional Affairs, the Lord Chancellor, the Master of the Rolls, made by the Lord Chancellor with the concurrence of the Lord Chief NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS and other Government entities. Under the proposed new system, Justice. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the entire cost of regulation will pass to the legal profession and NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS then to the public." ‘This would reduce the perception that the appointment could NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS be subject to inappropriate political influence. We note that the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The Bar Council is pressing for amendments to the Bill, designed Government has accepted the formula “… in consultation with the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS to ensure that the start-up costs and additional ongoing costs of President of the Court of Session” in recent legal services reform NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the new arrangements are borne by public funds so that they do legislation in Scotland .’ NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS not have to be passed on to consumers as a result of increased NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS costs on the professions. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS

the barrister

NEWS ROUND UP

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS LSC PROPSAL FOR FAMILY GRADUATED FEES: IMPROVEMENT BUT STILL MAJOR NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSSOME NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS CONCERNS, SAY LAPG NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The Legal Aid Practitioners Group welcomed, with reservations, the improvements in the structure of the LSC’s proposals for family graduated NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS fees, but expressed continuing serious concern about the rates on offer. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Director NEWS Richard NEWS Miller said, “The NEWS structure set outNEWS in theseNEWS revised NEWS proposals is a distinct improvement on theNEWS proposals fromNEWS the WayNEWS Ahead NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS document, particularly forNEWS care proceedings. Nonetheless, are still sceptical as to whether fixed feeNEWS systemsNEWS can be appropriate for allNEWS family NEWS NEWS NEWS NEWS NEWS NEWSwe NEWS NEWS NEWS NEWS NEWS NEWS NEWS work; and we remain seriously that theNEWS rates payable these proposals will NEWS not be sufficient to ensure an adequate NEWS NEWS NEWS NEWSconcerned NEWS NEWS NEWSunder NEWS NEWS NEWS NEWS NEWS NEWS NEWSsupplier NEWS base for NEWS this work.” NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS published NEWS NEWS NEWSthe NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The documents also included LSC’sNEWS intended scheme for immigration. LAPGNEWS committee member andNEWS immigration specialist NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Lawrence Lupin said, “There remain many questions about how the LSC has calculated the proposed payment rates under this scheme. The LSC NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSwho NEWS NEWS NEWS NEWS has so far failed NEWS to answer these NEWS questions despiteNEWS repeated requests. MostNEWS of the respected practitioners have seen these figures have NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS concluded that they are not viable. Under these fees, there is no scope to undertake quality work, and clients will suffer even if they are able to NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS find a lawyer.” NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS “NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Miller also expressed concern about the pace and extent of change. I have downloaded nineteen pdf files fromNEWS the Legal Services Commission NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS website, including annexes and regulatory impact assessments. This is on top of consultations published earlier this month on police NEWS station NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS boundaries and the very high costNEWS criminalNEWS case panel, not NEWS to mention the negotiations on theNEWS new unified contract. I am paid full time to keep NEWS NEWS NEWS NEWS NEWS How NEWS NEWS NEWS NEWS NEWS NEWS on top ofNEWS the LSC’s initiatives, and NEWS I can barely copeNEWS with thisNEWS blizzardNEWS of publications. on earth canNEWS any practitioner who is trying to conduct NEWS NEWS NEWS NEWSbe NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSthe NEWS a substantial caseload to aNEWS high standard expected to do NEWS so? The sheer volume, speed and NEWS extent ofNEWS the changes is liable to destroy legal NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS aid system even if the substance doesn’t.” NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS JUSTICE ACCESS DENIED Campaign Bar Standards Makes NewNEWS NEWS NEWS NEWS NEWS NEWS NEWSBoard NEWS NEWS NEWS NEWS–NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Launched Appointments NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSinNEWS NEWS NEWSforces NEWS LeadingNEWS organisations the advice fieldNEWS have joined to The Bar Standards Board has announced two new senior appointments. oppose NEWS civil legal aid reforms for implementation later this NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSdue NEWS NEWS NEWS NEWS Valerie Shrimplin has been appointed Head of Education Standards year. The AccessNEWS to Justice Alliance (AJA) NEWS is to spearhead major NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS aNEWS and Julie Myers have been appointed Head of Strategy and campaign to show that the government’s proposals threatenNEWS a real NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Communications at the BSB. reduction in public access to justice. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Dr Valerie Shrimplin joins the BSB as Head of Education Standards The campaign JUSTICE – ACCESS DENIED brings together key NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSsector NEWS NEWS NEWS NEWS advice and voluntary organisations. TheyNEWS fear that the having been Head of Quality Assurance at the Royal College of NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSreforms NEWSwill NEWS NEWS NEWS Carter Report meanNEWS fewer people willNEWS be given legal Surgeons. She has some fifteen years’ experience of quality assurance NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSespecially NEWS NEWS NEWS NEWS advice, NEWS and thatNEWS it will impact on those with complex and the management of education and standards, including regulatory NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS needs. NEWS NEWS NEWS NEWS NEWS NEWS NEWS frameworks and procedures, as applied in UK high level professional NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS statutory bodies and universities. Valerie is also experienced in policy The support the advice is NEWS central NEWS to successful NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWSsector NEWS NEWS making in education and standards, and in the drawing up and implementation of the reforms. The campaign asks NEWS the government NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS implementation of appropriate QA systems in universities in the UK to step NEWS back andNEWS reconsider these proposals, especially new NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSthe NEWS and overseas. funding system of fixed fees. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS is NEWS NEWS NEWS NEWS NEWS The campaign adopting the ‘No Entry’ sign NEWS as a logo (see Julie Myers, Head of Strategy and Communications at the BSB, has NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS attached) to underpin its themes, showing how access to justice a background in regulatory policy-making, consumer affairs and NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSAction NEWS NEWS NEWS NEWS NEWS NEWS will be denied. being planned includes: organisational change. She joins the BSB from the communications NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS regulator Ofcom where she was most recently responsible for • Pressure in parliament for review of Carter reforms NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS managing delivery of the high-profile investigation into the impact • MediaNEWS briefings using case examples from clients NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS of food advertising on children. Previously she established Ofcom’s • A petition to goNEWS to the Government NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS independent Consumer Panel, providing advice on a broad range NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS of consumer issues and developing innovative techniques to make A week of action is also planned for the week beginning 14th NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS regulators accountable for the way they promote and protect the May. There will be campaign launch meeting that week and AJA NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS supporters will NEWS demonstrate outside County Courts and tribunal interests of consumers. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS offices using placards with the noNEWS entry sign logo. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Mark Stobbs, Director of the Bar Standards Board said: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWS NEWS NEWS NEWS “The purpose the week of action is to NEWS raise public awareness of the potential impact NEWS the Government’s reforms will have on NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS "I am delighted that Julie and Valerie have joined us. Both bring access to justice.NEWS Everyone concerned about these NEWS services NEWS should NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS valuable knowledge and experience that the Bar Standards supportNEWS the campaign contact AJA members to takeNEWS part,” NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSand NEWS NEWS NEWS NEWS Board needs and which will help us greatly in meeting our future says Alison Hannah, the NEWS Chair of NEWS AJA. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS challenges." NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Press contact Michael MacNeil: mmacneil@lag.org.uk NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Telephone: 020 7833 7435NEWS (direct NEWS line) NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS

the barrister

Increase in the number of barristers suffering from stress, depression and alcohol abuse By Hilary Tilby, LawCare

below

mitigation for one of the same. Public funding

So, the end result is that lawyers are

demonstrates very clearly

chart

was freely available for contested cases and

understandably

the growth in the number

those paying the bill appeared to value the

demotivated and are suffering from stress

of UK Lawyers in distress.

service provided, since there were few, if any,

and depression. Those can, in turn, lead

The

quibbles about the fee.

to excessive smoking, drinking and eating,

magenta

column

indicates the number of

feeling

undermined

and

because when you are subject to long-term

new LawCare case files opened that relate to

stress you feel lousy and when you feel lousy

stress and depression and the purple column,

Nowadays? Little of the above work is still

you want to feel better. Alcohol, nicotine and

those suffering from alcohol abuse. Bearing

available to young Barristers and Lawyers,

sugar are all quick fixes to sort the problem,

in mind that 80% of those who come to

who in general, seem to rank in the public

but, of course, over a period of time, you

LawCare seeking help with alcohol issues

esteem marginally ( but only marginally)

need more and more of the same substance

say that they started drinking due to stress

above Traffic Attendants. There is a false

to get the same effect, and what goes up

in the workplace, and that the new case files

perception of “fat cats” engendered by the

must come down. Alcohol, in particular is

opened by LawCare are rising, year on year,

press and members of the government, which

a depressant, so that a vicious circle starts

by between 22% and 30%, it is apparent that

might apply to a small minority but which

to develop. Nor should we lose sight of

the strains of life in practise are increasing

fails to take into account the majority, who

drugs, particularly cocaine and crystal meth.

inexorably.

work extremely hard to make only a moderate

Statistics indicate that the highest usage of these drugs is amongst young professionals and with it commonly being available for less

Law C are Cases

than the price of a drink, usage is growing. Currently, only 1% of LawCare’s case files relate to drug abuse and we think that is for two reasons. Firstly, use of these drugs is still

A lcohol

a criminal offence, so even on a confidential

Stress/D epression

basis, lawyers are reluctant to admit their addiction. Secondly, many of the users are still young enough for the damage being caused not to be too apparent. But it is there and in time, it will impinge seriously on the ability to lead a professional and private life.

1997

1998

1999

2000

2001

2002

2003

2004

2005

What can you do to avoid this happening?

2006 18

Many Lawyers share the characteristics of the obsessive personality ( driven; ambitious; unable

delegate;

perfectionist;

high

Is it any surprise when you examine the

living. Fees are constantly under attack and

achievers;

market place in which members of the Bar

with fixed fees, particularly in relation to

prepared to give 110% of themselves, no

practise today? I was called to the Bar in

publicly funded work, by the time that travel

matter what the consequences in health terms;

1974 and in those days, a young Barrister

expenses and preparation / waiting time are

A type personality etc). That is usually coupled

could cut his or her teeth by doing a number

taken into account, work can end up being

with a perception that as a Barrister, one is

of undefended divorces in a morning in the

done for less than the hourly rate paid to a

in the business of sorting out other people’s

County Court; prosecuting part / the whole

plumber.

problems, so that, by definition, one should

over

conscientious;

only

ever

of a list of guilty pleas on a Friday morning

also be able to sort out one’s own problems

in the Crown Court; or by providing a plea in

and if one cannot, one is “inadequate”, “a

the barrister

failure”, and other such pejorative terms. That

The typical symptoms of vicarious trauma are

including one specifically relating to vicarious

then creates an immediate barrier to seeking

reduced tolerance to others; difficulty in relating

trauma), ranging from 1½ hour to 3 hours, at

help and problems just fester and worsen.

to others; increased cynicism; becoming

the time and place of your choosing.

overly

judgemental

others;

emotional

numbing; sleep problems; depression; and

An important tool in dealing with health issues

addictive behaviour. Vicarious trauma cannot

commented:-

is to actually listen to what your body and

be avoided, but it can be recognised and then

“The most important thing I now know is that

mind are telling you. Few people who suffer

dealt with by de-briefing with a qualified

we all need help. At some point in our lives,

sudden death or breakdown have not actually

counsellor. Such counsellors must, by the rules

we will need help and we should never be

had any warning signs. Either they chose to

of their professional bodies, have regular de-

ashamed to ask for it. Just make that phone

ignore them or they simply did not appreciate

briefing sessions with a supervising counsellor,

call. It will be the best phone call you ever

them for what they were. Our bodies do not

to relieve their emotional pressure, yet lawyers

make.”

just exist as vehicles to move our brains from

open themselves to as much emotional trauma

place to place, and repeated bouts of infection;

and just battle on without thinking of the effect

aching joints for long periods; a clouded mind

it is having on them.

with “scrambled egg brain”, when previously easy tasks become painfully difficult; constant exhaustion; seeing everything in shades of

The most important tool of all in dealing

grey; loss of usual joie-de-vivre; excessive

with the kind of issues set out above is to

negativity; loss of self-confidence and self-

be prepared to ask for help. No one can

esteem; with or without increased drinking,

survive the 21st century isolated and alone. As

smoking and /or eating, are all symptoms of

recognised by Chief Justice Christine Durham

long-term stress which can lead to mental and

of the Utah State Bench

physical ill health if ignored.

“As lawyers and judges we identify ourselves as problem solvers. But we also live lives dominated by high expectations and multiple

There is also the issue of Vicarious Trauma,

demands. We are often convinced that any

a syndrome identified by Lisa McCann and

admission of the stress our lives generate

Dr Laurie Pearlman, and taken very seriously

is a sign of weakness that will undermine

amongst Judges and Lawyers in the USA. The

everything we strive to be. No one is immune

principle is that continued exposure to those

and most of us cannot cope

actively suffering trauma can result in shifts in

alone.”

the personal perception and experience of life of the observer ie. you:“ Anybody who engages with trauma survivors

LawCare is there to help by means of a

or perpetrators …can be open to vicarious

365 day a year, free and totally confidential

trauma, even lawyers and Judges.”

helpline.

“Lawyers and Judges hear terrible things.” By seeing clients in conference; drafting or

0800 018 4299

reading affidavits and / or witness statements;

Monday to Friday

preparing a case for trial; and being involved

9am – 7.30pm

in a trial, in order to do your job properly you

Saturday

have to open yourself to absorbing elements

Sunday

of what you are hearing, reading and writing.

10am – 4pm

and

Over a period of time, that has an effect on you and this applies whatever type of practise

We also provide free

you have. Clients contesting a will or fighting

( save for travelling

a contract dispute can be just as emotionally

expenses) interactive

draining as those who have committed

stress

distressing crimes or whose contact with their

and

children is at stake.

training sessions (

recognition management

someone

who

Hilary Tilby, LawCare

sought

such

help

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the barrister

Management of compensation claims- Why a well managed compensation claim can be part of the rehabilitation process By Bill Braithwaite QC, Head of Exchange Chambers was asked to give a talk a while

the catastrophe, and to do so in a way which

and beyond the ability of all professional

ago to the Walton Neuro Centre

suits them, not the insurers, nor the State,

carers. And yet families are frequently left

in Liverpool, and I used the title

nor even the defence solicitors.

to manage on their own. Good care and

“Lawyers treating severely brain

support can be the key to rehabilitation. It

injured patients”. I wanted to see

Going back to visiting the patient in

is widely acknowledged that a good case

if the doctors could contemplate the

hospital, it can be exceptionally difficult

manager, with suitable support workers, can

possibility that the intervention of lawyers

to return home from hospital; the obvious

provide

could, within the damaging limitations of

example is the patient in a wheelchair, whose

Unfortunately, that can be expensive, and

the judicial system, actually be constructive

house is inappropriate. In order to find new

it may not be realistic to see it as cost-

in the therapeutic process. They appeared

accommodation, the sympathetic lawyer has

effective. Sometimes there is no chance of

to be very receptive to that notion (possibly

to find out what the family really wants. It is

reducing dependence, or of rehabilitation

just being polite), and I wonder if the time

not uncommon for the patient to be told that

back into work, and so the cost is aimed at

has come when doctors and lawyers are

he should move into a bungalow, because that

improving quality of life. If that is so, it can

able to co-operate more extensively in the

would suit his disability. However, bungalows

be difficult for insurers to justify funding an

management of the patient’s rehabilitation.

do not suit everyone, and families should not

expensive package. However, if that is the

This appears to be particularly topical

feel any pressure to alter their wishes to suit

correct course for the individual claimant, his

because insurers are keen to be involved in

lawyers. The correct rule is that there is no

lawyers must make the rehabilitation process

that process, which raises some interesting

fixed rule; I have clients all over the country,

work by obtaining the money, and helping

ethical issues.

in all sorts of different accommodation, and

the client to initiate a suitable package of

the only true guidance they should be given

support and rehabilitation.

community-based

rehabilitation.

In my opinion, the legal management

is that they ought to act reasonably. The

of a claim can and should start, subject to

rule for the lawyers is to listen and enable,

It is all too easy for lawyers to overlook

the family’s wishes, whilst the patient is

thereby managing the client’s expectations

the pressures of continuous care, but it is our

in hospital. That may sound controversial

and solving his problems. By doing that, you

duty to perceive the problem, and manage it

(shades of ambulance chasing) but in fact

discover what he wants, help him to find it

in a way which will suit the family, and help

it is precisely the reverse. Again and again

(eg by giving guidance on how to look, or

them to cope.

I see families who have not been helped by

by employing a property finder), obtain the

That requires money, which has to come

lawyers, doctors or the State, and who have

money to buy it, arrange the legalities, and

from the defendant. Oddly though, it is

consequently struggled to get out of hospital

sort out the moving. What could be more

not universal for claimants’ lawyers to

when ready, and have then found it almost

therapeutic for the patient than to have this

obtain substantial interim payments, even

impossible to survive in the radically changed

huge problem solved to his, and his family’s,

though this is an essential part of the good

circumstances following catastrophic injury.

satisfaction?

management of a claim.

As I write this, I can think immediately of three clients who all need lawyers’ help to

When that first problem is solved,

An area of difficulty which has arisen

move on in their lives; one has been stuck in

by discharge of the patient into suitable

in the last few years is that insurers seek

an institution for well over a year when all

accommodation, all is not over. First, the

involvement in the process of “rehabilitation”,

she wants to do is to go home.

accommodation may prove not to be suitable

used in its widest sense of finding suitable

after all. That raises the question whether

accommodation, implementing a support

This management question raises what

they have to stay, or can they move when

package, sourcing suitable equipment, and

is, I think, a fundamental difference in the

they realise their mistake? Putting that

generally returning life to as near normal as

approach of personal injury lawyers. The

on one side, it’s no good finding the right

can be expected. The concept sounds ideal;

traditional method of managing a claim was

accommodation if the patient cannot survive

co-operation in the way envisaged when the

to take the claimant as you find him, and

without help. Families are often the most

Civil Procedure Rules were implemented in

establish the cost of what he thinks he needs.

powerful support for the injured person, but

1999. Sadly, all is not as it seems, and there

The more sympathetic system is to enable

they cannot always provide continuous care;

can be a risk that outside involvement will

(empower?) the claimant and his family to

it is axiomatic in this world of catastrophic

be damaging. There was an attempt recently

put their ruined lives back together following

injuries that 24/7 care is highly demanding,

to ensure involvement by insurers in the

the barrister

brain injury case management of a patient,

that might not be the best way forward. It is

An incidental effect of this form of

but fortunately it did not succeed; case

very difficult to see what a defendant could

rehabilitative management is that, by the time

management is a form of clinical treatment,

add, by way of expertise or advice, to a well-

the case comes to trial, most of the problems

and it should remain part of the treatment

managed claimant’s team.

and uncertainties have been resolved, and

process.

there is less left to argue about; those are the When accommodation and care have

cases which are more likely to settle, thereby

Another example of the difficulty is the

been arranged to the claimant’s satisfaction,

saving the claimant from stress and worry,

attempt by insurers to insist that a claimant

there are many other areas which all need

and aiding his rehabilitation.

should seek local authority or health authority

attention, and money. Transport can be vital

help in finding accommodation, and in the

to a person’s well-being; if he does not have

provision of care. There are all sorts of

a suitable wheelchair or vehicle, he cannot

tactics being used, some covered with sugar

move around with dignity and independence;

to hide the bitter taste, but they all have the

he cannot go out, be entertained, or live life

same object; to reduce the cost to the insurer.

as the rest of us know it. Suitable equipment

Good management of a claim requires the

can make an enormous difference in what

lawyers to understand the law correctly,

an injured person can do, but it all costs

apply it individually to the client, support

money.

Bill Braithwaite QC

the client and his family in their decisions (helping them to reach reasonable ones), and

The more we can persuade doctors that

resist outside pressures. This is not always

we have a place in the therapeutic process,

easy, because in order to obtain sufficient

the more likely it is that they will be prepared

money to buy accommodation, instal care,

to involve us in the therapeutic management

fund equipment, and put life back together

of their patient. By working together as a

again, one has to rely on the insurer (or other

team, it is more likely that the patient will

defendant). Sometimes, they will promise

achieve a good result.

co-operation in return for involvement, and

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the barrister

Online challenges face-to-face CPD With online learning, barristers can choose from a whole host of courses that interest them, choosing from content which is continually updated and added throughout the year. The lessons take place in any location: wherever you choose to set up your computer or laptop. Stephen Caine, CEO of CPDChannel.com*, explains why he believes online learning is the future for Continuous Professional Development

very year, all practising

lifesaver for barristers. The Bar Council’s

disciplined, and tend to structure their CPD

barristers

the

annual CPD deadline is December 31st and

learning more throughout the year.

UK are required by

while barristers are certainly clever, there

the

are more than a few of them that left

Time and money wasted not doing CPD

twelve

meeting their CPD requirements until the

courses online

mandatory Continuous

very last minute in 2006. In fact we saw

Bar

Council

complete

points.

more visitors anxiously trying to complete

A typical face to face CPD course usually

Solicitors, as instructed by the Law Society,

their mandatory CPD hours online on New

works out to be somewhere in the region

must achieve sixteen CPD points. The points

Year’s Eve than on any other day in 2006.

of £75 per point. Add to that the cost

can be on any legal subject but practitioners

If it weren’t for online learning, there would

of travel, subsistence, accommodation and

naturally tend to gravitate towards areas of

be many barristers in trouble with the Bar

(most importantly) the loss of billable hours

their own professional interest.

Council right now, facing fines or penalties.

while you travel to and from the courses and

Professional

Development

(CPD)

you’re looking at some very costly sessions. This

where

practitioners

usually

Online courses allowed them to log on during

encounter their first problem with meeting

the holiday period,

CPD requirements: shopping around for the

taking

courses that interest them, in a convenient

of the long stretch

location, and at times of the day, month or

of down time, and

year which suit them. It’s a tall order, usually

claim their missing

not met by most course providers in the UK.

points. Our servers

Many family practitioners end up in the odd

were red-hot right

Personal Injury course for example, just

through New Years

because they couldn’t find anything closer to

Eve and on average

their own interests that they could attend in

one

the time they had available.

completed

advantage

course

was every

five minutes in that With online learning, barristers can choose

single

twenty-four

from a whole host of courses that interest

hour period. This

them, choosing from content which is

is a huge amount

continually updated and added throughout

considering people

the year. The lessons take place in any

are

location: wherever you choose to set up

spending the time

your computer or laptop. As for the time,

celebrating

whenever suits you - 9am, 3pm, midnight,

their

weekends, even Christmas day or New

families.

Year’s Eve if you want.

solicitors

usually

slightly

with

friends

appeared This particular benefit has proven to be a

out

or far have

be more

Invariably barristers are forced to absorb

the barrister

the cash loss or compensate for it by giving

It’s not only learners that face massive time

to realise that online CPD training courses

up more of their own personal time.

constraints. Course presenters are also

not only save billable hours, but also allow

reluctant to spend time travelling to and

them greater flexibility and convenience.

Then there are cancellations. Once barristers

from courses. As a result face to face course

have gone to the effort to source and

providers very often may be unable to secure

schedule a suitable course, book and pay for

senior barristers and QCs as lecturers.

* CPD Channel is a CPD course provider accredited by the Law Society and the Bar

it, even arrange their necessary transport and accommodation, invariably a client will

Online courses will often attract the more

Council which broadcasts digital training

have an emergency or a case will need

senior lecturers. It allows them to reach

content in 1 hour courses containing video,

urgent attention. One way or another, you’d

unlimited audiences, in a short space of

sound and text to an online audience.

have to cancel and in most cases lose your

time, from the comfort and convenience of

Practitioners

deposit.

their own chambers.

content from leading barristers in their

receive

quality,

up-to-date

chosen areas of interest and are able to This all adds up to some shocking figures.

Making the change

complete their requisite hours whenever it suits them, without the hassle and extra

Recent research undertaken by CPD Channel estimates that legal professionals in the UK

While solicitors are required to complete

costs associated with attending face to face

are wasting on average 860,000 billable

at least four face to face hours, barristers

courses. Visit www.cpdchannel.com.

hours and £145 million in fees doing their

are free to complete all of their CPD

CPD face to face - just by travelling to and

requirements online. Of course some face to

from courses, waiting around, and taking

face learning will be invaluable, and online

breaks during courses. The figures are

courses can work very well in partnership

conservative, based on the assumption that

with the more traditional training methods.

practitioners attend three blocks of CPD

Many of CPD Channel’s learners visit the

courses per year, and factoring in Legal 500

site simply because they have completed

hourly rates and HMCS’ “Guideline figures

most of their points, and just need to “top

for the summary assessment of costs”, as

up”. They would otherwise be faced with

well as Ministry of Transport statistics on

having to commit to, and pay for, a block

average travel times for business trips in

with too many points. The overrun would be

the UK. So in some cases barristers will be

wasted as you cannot carry points over to

looking at an even larger amount.

the following year.

Legal practitioners have yet to realise

Many barristers privately admit to being

the full impact that attending face-to-

slightly “techno-phobic” but do not realise

face CPD courses has on their time and

that online CPD learning is actually very

their profitability. E-learning, podcasting

simple. Online providers use straightforward

and virtual meetings have taken off on an

processes that allow for all levels of computer

enormous scale in other sectors and with

literacy. No special software is needed,

online CPD learning the legal profession

video presentations open automatically, and

now has at its fingertips the same kind

documents are easy to download.

of convenience. There is no reason why barristers shouldn’t have more control over

The Bar Council has been phasing in an

when, where, and how they complete their

“established practitioners programme” and

CPD courses. Online courses are designed

since January 2005 all barristers have been

with the ultimate aim of giving barristers

subject to CPD requirements, right up to the

more control over their timetables, their

level of Queen's Counsel. As time goes by I

costs, and their billable hours.

expect more and more practitioners will start

the barrister

Is the Bar ‘fit for purpose’ in the twenty-first century? Barbara Hewson says the Bar must change its working methods to survive

n 8 January 2007, the

and dry, unless they start making proper

be far more pro-active. At a minimum,

new

contracts.

chambers must ask themselves whether it

Chairman

the

Bar told the Financial Times:

is reasonable to meet with the instructing

“"Where we're

Much of the Bar fails to recognise that, like

solicitor and his client to set terms in

missing out is ordinary

solicitors, it is in the business of selling

advance. From the lay client’s perspective,

working-class

people,

legal expertise. Chambers that do not

this is perfectly normal. Marginalizing the

from all racial and social origins, who think

recognise this are becoming “price takers,”

Bar is no basis for developing a strong

the Bar is unattainable." It’s unclear who

and will see income per tenant decline. A

relationship between lay client, solicitor and

is working class nowadays. According to a

bizarre situation is developing in some sets,

barrister. After all, they are all on the same

survey carried out for the Royal Liverpool

particularly when high volumes of repeat

side.

Friendly Society last year, “about 2.67m

work are involved, whereby they are being

people consider themselves working-class

excluded from the pricing “loop” altogether,

Many chambers have a slovenly approach to

even though they are among the top 20%

resulting in the imposition of “take it or

fee collection from private clients. This comes

of richest Britons, as do 500,000 who earn

leave it” briefs.

from not setting proper terms as to payment,

more than £100,000-a-year” (BBC News, 5

when work comes in, and (incredibly) not

May 2006). But if such people consider the

A parallel to this would be having your

stipulating a time for payment, or stage

Bar unattainable, maybe it’s because they

doctor refer you to a specialist for a surgical

payments in ongoing cases, still less prompt

don’t fancy being part of a legal theme park.

procedure and telling the surgeon, as you

payment of disbursements and interest.

But if the Bar wants to make itself more

are climbing on to the operating table,

Some silks and juniors do much better and

attractive to clients especially through Direct

what you are prepared to pay him. This

so do some sets but, I suspect, fewer than

Access, it must radically change the way

would result in the

in which it operates.

surgeon

If it doesn’t, the

handing

companies and private equity firms who will

over to his newly

be sniffing around once the Legal Services

qualified

Bill becomes law, will force change upon

surgeon, to allow

us.

him a bit of practice.

house

Such

practices

At present, chambers operate with a model

always

derived from the eighteenth century. We

lowest-common-

wear wigs, have pupils and clerks. The

denominator results

computerised

for the client, and

billings

systems

current

produce

in chambers are primitive, and solicitors

ensure

complain about them with good reason.

experienced,

the

least least

qualified,

lowest-

But it’s the Bar’s archaic terms of work,

priced

person

its pricing practices, and its approach to

does the job. The

fee collection which are beyond the pale.

lay client deserves

It beggars belief that any profession that

better than this.

operates as sole traders, should think it acceptable not to have contracts with private

S u c c e s s f u l

clients. True, there are alternative contractual

chambers looking to

terms on the Bar Council’s website – but who

attract and develop

uses them? Only a few senior practitioners

young barristers by

utilise bespoke contracts.

offering

Code

for

Solicitors,

The new draft

currently

before

personal

development

the Master of the Rolls for approval, has

objectives

dropped solicitors’ professional obligation to

some idea of future

pay counsel. This will leave many sets high

income will have to

and

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the barrister

one might think.

introduce new, and exclusively contractual

stated, without making clients run for the

terms

hills.

with

its

dominant

client

group,

This is absurd, not least because solicitors

solicitors. These are still being negotiated

insist on such terms, when they take on

with the Law Society. Having seen a draft,

“Charges and expenses.

clients; they cannot get paid without a

they do not seem calculated to enhance the

Unless stated otherwise our charges are

retainer. There is no reason why barristers

Bar’s standing in the fast-changing world

based upon a combination of factors: the time

cannot mirror these arrangements. Yet there

of legal business.

I cannot imagine any

anticipated to complete the matter, urgency and

is a supine reliance on the Bar’s existing non-

busy professional welcoming 16-odd pages of

‘value’. Time recorded will include: Meetings

contractual terms of work. These treat the

legalistic provisions, including four and half

with you and others, travelling, preparing

Bar as suppliants, who should be grateful for

pages of recitals and definitions. It is not until

and working on papers, correspondence and

instructions, and assume that if our solicitor

page 9 that we learn that a barrister “shall

making/receiving telephone calls and other

clients had to treat us as commercial equals,

be entitled to submit a fee note and..to be

electronic communication.

we would simply not be instructed by them.

paid.” Solicitors get two months in which to challenge a fee note. Most businesses require

Time recording charges. The firm charges

The inevitable result is that clients can

you to query an invoice straightaway, or

<partner/staff member’s name> time at $___

withhold fees for excessively long periods and

within 14 days.

per hour for each hour he/she (delete as

get away with it. Most businesses would think

required) is engaged on this matter.

90 days was pushing it. Private hospitals,

There is a cumbersome procedure “for the

Our rates are reviewed annually on <review

doctors and dentists collect payment from

agreement of fees which have not been agreed

date> and any change to charging rates will

the client before they leave the premises. Yet

before the performance of the services have

be notified to you, in writing, following that

barristers who have provided a professional

been completed.” After four months of serving

review.

service, often at very short notice, can be

notices and counter-notices on each other,

In addition to time spent other factors may

reduced to begging for “interim” payments,

and a further six weeks in which a barrister

influence the time charge. These include: The

months after a case has concluded. Worse,

may choose to accept the solicitor’s counter-

speed with which action must be taken, the

they pay tax on aged debt, which has not

offer, the barrister and solicitor are supposed

complexity of the issue(s), the value of the

been collected. No private equity firm taking

to present themselves to a Tribunal, which

subject matter involved. On the basis of the

over a legal practice would tolerate such

will act as an expert and not as an arbitrator.

information currently available we do/do not

financial anarchy.

But this is not an encouraging template for

(delete as appropriate) expect these factors to

modern professional relationships.

influence our charges.

accountant in charge of monitoring and

The new terms in form and content are

Disbursements policy. We will also charge

ensuring fee collection, on a monthly basis.

very

different

from

the

you for any disbursements (court fees,

The time lag in collecting payment in some

straightforward

and

user-friendly

Client

registrations, duties/levies etc.) and travel

chambers reinforces the stereotype that

Care letters for Direct Access clients. By

expenses incurred on your behalf. These will

barristers need private incomes to survive.

an interesting coincidence, the Bar’s latest

be billed separately and in the case of court

The preliminary results of the Bar Council's

Practice Management Guidelines (2006) also

fees, registrations and other unavoidable

Exit Survey show unacceptably high numbers

recommend the use of Client Care letters,

costs must be paid for in advance. A separate

of barristers leaving private practice between

although their model letter is pretty thin

estimate of disbursements will be issued.

five and 10 years after being called to the

on detail. However, a properly drafted,

[…]

Bar. Who can blame them?

accessible client engagement letter should be

I do not know if any set has a qualified Bar

Council’s

the model to adopt. Every solicitor who takes

Billing Arrangements.

One result of the Bar’s dismal inertia is that

on a client is required to send them a client

To help you budget we will send an interim

we do not benefit from the Late Payment

engagement letter, which spells out what the

account at the end of every calendar month

of Commercial Debts (Interest) Act 1998,

relationship entails.

while any work is in progress. We will send a

Directive 2000/ 35/ EC, and the 2002

final bill on completion of the work. For your

Regulations. The statutory rate of interest

To illustrate, consider this extract from a

convenience a number of payments methods

for contracts between businesses concluded

short-form engagement letter in use for

are available: Electronic funds transfer,

before 7 August 2002 is 8% plus the Bank

solicitors in the UK and New Zealand. It has

cheque and credit card.

of England base rate, and for contracts

been kindly supplied by Ashley Balls of Legal

concluded after that date it is 8% plus the

Best Practice (www.legalbestpractice.com), a

All accounts, whether interim or ‘final’ are

reference rate, plus compensation for the

company with a reputation for improving

due for payment immediately. Accounts

cost of chasing late payments. The Bar has

client relationship management, which has

remaining unpaid after a period of 30 days

looked this gift horse in the mouth.

just completed a comprehensive study on

from the date of issue will attract interest at a

this in New Zealand. * It shows how a core

rate of 1.75% above MLR (Minimum Lending

element in the relationship can be simply

Rate) from the date the bill is due. Interest

More recently, the Bar has attempted to

the barrister

will be charged on a daily basis.

cashflow,

most

solicitors

will

welcome

chambers that emulate their own professional If you have any query about any bill you

approach to client engagement. If chambers

should contact me immediately.”

are concerned about how regular clients may react, they should invite them in for a meeting

The Solicitors Act governs relations between

to present the new arrangements, and show

solicitor and client. It is but a short stretch to

them how that will benefit them in their

include the relationship between a solicitor and

relationships with their lay clients. I believe

other professionals engaged as a consequence

that the sooner chambers start relating to

or a pre-existing solicitor/client connection.

clients on this level, that is, as professional

Counsel’s fees form an integral part of the

equals, the happier and more productive they

solicitor client relationship, and should be

are likely to be. They can be businesses with a

paid for speedily. Many of Mr Balls’ clients

future, instead of chambers with a past.

now have a policy, whereby all disbursements (including counsel’s fees) must be paid in

* The Business of Law: the essential report

advance.

on management and financial performance in the New Zealand legal profession (Thomson,

One wonders whether the Bar Council took

2006)

advice from an outside consultant, experienced in client relationship management, before it put pen to paper. Chambers will need to get their skates on, however, if they want something more user-friendly. The point is: it’s not difficult! Apart from greater clarity and improved

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the barrister

Positive Approaches to Anti-Social Behaviour By John Hedge, Community Safety Director, Thames Valley Partnership, Co-ordinator of the Positive Approaches Alliance The ‘naming’ of Anti-Social Behaviour and its definition

erhaps the Labour Government’s most striking contribution to the field of crime and disorder has been the creation of a catchall description for public behaviour which upsets other people and affects their lives adversely. Originally coined as a term to cover ‘bad behaviour’ which was unpleasant but not easily turned into a criminal charge, the term’s usage spread quickly to cover a huge range of activity, including aspects of drug use, criminal damage, and a variety of aggressive behaviours. Government has so far resolutely resisted arguments to produce a more specific definition than the current very general and subjective one: ‘To act in a manner that causes or is likely to cause harassment, alarm or distress to one or more persons not of the same household’. The most we have had to date is a typology of behaviours produced by the Home Office Research Group with a categorisation of behaviour. This contributes to considerable variation in the use of the different types of Order available. As the Youth Justice Board’s research on ASBOs indicated in 2006 (1) this could not be explained by examining the type of behaviour leading to the application, but appeared rather to be due to the development of local preferences for a particular route.

cover other forms of behaviour, and Government is currently consulting such an extension in England and Wales, as a final option, possibly after an ASBO. •

The introduction of new ‘Street’ powers for Police, notably Dispersal Orders and Penalty Notices for Disorders. Though these measures are not limited to young people the Government’s Respect Unit acknowledges that this has been the main focus of their use.

Foundation between 2003/5 provided many examples of successful work, and following publication of the project report (3) a number of organisations came together to form the Positive Approaches Alliance in order to campaign for a rebalancing of anti-social behaviour work and government policy.(4) As a key part of its activity Positive Approaches has collected case material from around the country of work which demonstrates the power and robustness of these approaches, and the rest of this article gives some illustrative examples.

Warnings work •

Recognition that community involvement and local action are crucial to tackling asb and raising public confidence. This is reflected in the current review of the Crime and Disorder Act, and in the national introduction of Neighbourhood Policing, with its emphasis on public involvement and the high visibility of Police Community Support Officers.

The range of powers and controls now in place offer a formidable armoury of enforceable options and sanctions. The Respect Unit argues that a range of other measures are also needed- including work with parents backed by sanctions to ensure their participation, and constructive activities for young people are two examples.

Partnerships and Powers

The recent National Audit Office report on anti-social behaviour (5) pointed to the high cost of ASBOs and the low cost of many alternatives. It particularly quoted the success of well- organised warning schemes. Carmarthenshire, for example, has introduced a two stage system of warning letters. Of 111 first- stage letters issued in the year up to September 2006 this action was sufficient in over 90% of cases and only 8 second stage letters were needed. This allows resources and intensive work to be concentrated on the cases where this is needed, and local interagency ASB groups co-operate on action plans to deal with individual cases. Equally impressive results were achieved in Stockton, where a three-stage system of Warnings has been in use. Here, in 2005/6 19 ASBOs or CRASBOs were made as against 1,635 Warnings.

The Positive Approaches Alliance The idea that responding to anti-social behaviour (asb) needed to be based on multiagency working has been central from the beginning, and is enshrined in the Crime and Disorder Act of 1998. ASB work has been a major focus for Crime and Disorder Partnerships. Over time new powers and responsibilities have been added. Some of the main examples are as follows: •

•

The giving of responsibility and powers to Registered Social Landlords and the creation of new forms of tenancy, affecting the tenure of those committing asb, or the parents of children doing so. New powers for Police to close houses where drug taking has caused asb- the so-called Crack House provision. This has been extended in Scotland to

Many practitioners and agencies are concerned, however, at the failure to review the impact of ASBOs, or the extent to which other enforceable powers may be used unfairly or inconsistently. A well- researched example of this is the research undertaken by the Runnymede Trust in 2006 (2), which showed that no systematic system is in place for monitoring the race factors involved in ASBOs. We have no idea as to whether ASBOs have impacted unfairly on black and ethnic minority people, or whether they are being used as a potentially important tool in combating racial harassment. A second area of concern in the community safety field is what seems to be an overemphasis on enforceable options and the limited funding of conflict resolution and preventive work. Work projects undertaken by the Thames Valley Partnership in its Mending Fences project, funded by the Nuffield

Positive Approaches argues that schemes like this should be available everywhere, and the aim should be to ensure that ASBOs are used as a special and ultimate resort, at the peak of a pyramid of responses.

Floating Support in Morpeth Barnabas, a church based project, received funding from the Communities against Drugs initiative to support young people at risk by getting them into accommodation and working to help them keep it. They helped the young people tackle their problems and also worked with neighbours to ensure that their concerns over ASB were met. The ASB Officer worked with the project to make sure that the young people were aware of the enforcement options if they did not cooperate- as a result most of them did, and an evaluation of the work showed impressive results. Positive Approaches argues that schemes like

the barrister

this need to be in place across the country, helping to reduce the back door route to custody caused by poorly targeted ASBOs.

more available than they are now- a major political challenge on changing the focus of public investment. As she says:

Education plus Partnership equals Prevention

‘As things stand, in too many cases families (or those on their behalf) who seek to help to nip problems in the bud do so only to be told that their problems are not serious enough to pass the provider’s ‘threshold of provision’. In effect, ‘go away and come back when things have got much worse’.

Mersey Travel with other partners, including the Police; Fire and Rescue, and transport providers run ‘Your Choice’ Conferences aimed at Years 6 to 8 in schools. The Conferences help young people think about the risks of ASB and the role of emergency services. Art, music and drama are used to involve students in working out the consequences of ASB. In West Berkshire a group of agencies and schools have worked with the Fire and Rescue Service to use the visual art of students in developing young people’s awareness about the impact of hoax telephone calls. The project, supported by Vodafone, had a dramatic impact on the rate of hoax calls, and this work is now being expanded to other areas. Positive Approaches points to the success of partnerships like these in reducing ASB and argues that such schemes should be available across the country.

Breaking the cycle requires intensive work The national children’s charity, NCH, argues that much more needs to be done to tackle root causes, rather than focusing primarily on punishment. In a response to the National Audit Office report Clare Tickell, its Chief Executive, called for Individual Support Orders (ISOs), which involve planned work to tackle young people’s drug or violence problems, to be much more widely used (6) Only 30 have been made since their introduction in May 2003. When intensive work is done with the most difficult young people she pointed out that it can reduce bad behaviour in a high proportion of cases. A case example from NACRO in Leicester gives the same message about intensive and focused work. A 13-year old boy, who came from a troubled family on the brink of eviction by the city council, was causing serious ASB. He was disruptive in school, including violent attacks on other pupils and teachers, and he had little support from his parents. The New Start for Families project worked intensively with him and his family so that he resumed education, began to take part in constructive activities, and stayed out of trouble. There has been too stark a contrast made between voluntary and compulsory involvement in parenting schemes. Both approaches may well have a part to play, but as Rosie Chadwick, Director of Prevention Services at Crime Concern said in an article last year, (7) we need to tackle the fundamental issue of making services much

The Home Office has helped to fund a number of ASB focused schemes, and the results seem overall to be very encouraging. They can save longer-term costs and can turn round lives. Positive Approaches argues that focused work with families is an essential preventive approach and needs to be made available across the country. While compulsion may have something positive to contribute the key issue is early voluntary involvement, and this can only happen if services are expanded.

Young People respond to well planned work The Youth Service can play a major part in reducing ASB. In many parts of the country detached youth workers make an important contribution to resolving problems because of their credibility with young people and their knowledge of local tensions, yet this work is often seriously underfunded. The Youth Service in Leeds works with 16,000 young people in 450 programmes. They have involved young people in work with film making; i n t e r- g e n e r a t i o n a l environmental work, and involved them in steering and managing their own projects such as the Garforth Skate Park. The Service’s REVIZIT programme takes on young people referred from other agencies. Its targets are those on ABCs, Final warnings and even ASBOs. Up to 12 weekly sessions are used to look intensively at attitudes, behaviour and consequences. Results from this pilot project are very encouraging. In Monmouth and Torfaen the view was taken that ASB offenders need to be given a clear choice- behave or face an ASBO. They introduced a Prevention Intervention Programme (PIP), which takes referrals from the Youth Offending Team

and other services. After assessment and a case conference an individual action plan is drawn up, which covers all the factors behind the ASB- alcohol or drugs, lack of parental support, need for training and so on. The scheme has been supported by the Welsh Assembly, and has meant that the area has needed very few ASBOs. This means that the ASBO has been kept for the small number who will not so-operate, keeping it as an important final sanction. As the project’s report says ‘Record numbers of ASBOs should be an issue for concern not a pleasing statistic’. Preventive work can be very locally based and very creative. In Berinsfield, South Oxfordshire, local Police and Youth Workers have set up a scheme which involves young people at risk in activity to support the Noah’s Ark charity, working to support a day centre in Kenya. Those who complete their involvement can be selected to work at the project in Kenya, and for many this has been a life changing experience. In Peterborough an ASB Support Worker provides one to one support for those involved in ASB. The worker assesses the young person and identifies the causes behind their behaviour and then ensures that they get appropriate support. The rationale for this approach is that many of those involved do not meet the thresholds for many of the agencies, such as Social Services, and though in need would have slipped through the net

• Legal Journals on line • • Law & Politics Links • • International Law Journals • • Research Material • • Expert Witnesses • • Tenancy Vacancies • www.barristermagazine.com

NEWS ROUND UP

the barrister

preventive work. We argue that the current

‘Ami’

having

from experience and avoid the unforeseen

Policy Review on Children and Young People

‘personality disorder’ and after experiencing

consequences of poor ASBO use , and the

must recognise this problem and ensure that

racist bulling at work she became depressed

current huge variation in use from area to

it is recognised in the 2007 Comprehensive

and violent towards her mother, leading to

area.

Spending Review.

her leaving home. Her behaviour worsened

Resolving agreement

Conflict,

promoting

has

been

diagnosed

and an ASBO was made prohibiting contact

References:

with her mother. She came to Elmore’s

Anti-social Behaviour Orders. Youth

Equal Respect- ASBOs and Race

attention during her third sentence for breaching the ASBO. They gave her support

Justice Board. 2006.

Much ASB comes from arguments and

on release, but her behaviour problems

Equality,

conflict, which has escalated over time.

began again. A number of agencies became

November 2006.

This can apply to neighbours, schools,

involved and Elmore argued that a secure

inter-generational tensions, or even hostility

psychiatric environment was the best option

between whole communities. Community

for her. Eventually, and after a long struggle

mediation schemes around the country have

this happened.

Runnymede

Trust

Mending Fences Project Work Book. Thames Valley Partnership, June 2005.

shown that they can have a major impact in

Current members of the Positive Approaches Alliance are: NACRO;

up to 80% of the case referred to them. They

Research undertaken by NAPO, a member

NAPO; Runnymede Trust; Revolving

are relatively low cost and solutions tend to

of the Positive Approaches Alliance found

Doors;

‘stick’ because they are agreed rather than

that a significant number of ASBOs had been

Partnership; Mediation UK; National

imposed from outside.

poorly targeted, or unrealistically framed. In many cases the support needed to help

LGIU;

Thames

Valley

Community Safety Network. 5)

National Audit Office. The Home

In Southwark the Community Mediation

people change their behaviour was simply

Office,

Centre

not there.

Behaviour, 7th December 2006.

involves

resolving

young

community

people

directly

conflicts,

often

at a serious level involving violence and

VOICE UK, and others have pointed to

weapons. They receive training in mediation

the high use of ASBOs for children with a

techniques, and are role models for young

diagnosed mental health disorder or learning

people in a diverse and challenging area of

difficulty- 35% of ASBOs made on people

central London.

under 17 according to the report published in 2005 by the British Institute for Brain Injured

In Slough the Aiksaath project works for

Childen.

similar results and with similar success. In Milton Keynes a Community mediation

We do know that ASBOs can work very

scheme project demonstrated that young

well, where there is good planning and

people who learn about mediation techniques

implementation.

in school can be involved as well in the wider

Council publicised the success of Craig

community.

Brackenbury in a news report in December

South

Kesteven

District

2006. He had been given an ASBO and had Since much of the misery of ASB stems from

turned his life round, changing his behaviour,

conflict and misunderstanding, or fear about

and sharing his experiences to help other

the activity of other people, Mediation should

young people. He now plans to resume his

be an essential resource in any ASB strategy.

studies. Craig attributes his success to the

In reality up and down the country mediation

support of his mother, but also the constant

schemes

communication

struggle

survive

financially.

between

him

and

the

Positive Approaches argues that the Respect

Community Safety Team. Clearly this support

Unit needs to ensure access everywhere to

and interest have been key factors in this

mediation so that people can be helped to

case, but nationally there is little awareness of

tackle their own problems.

‘what works’ in making an ASBO successful.

ASBOs are an important option in the most serious cases- but they need to be used well.

ASBOs are a vital final option when serious

The National Audit Office report (op cit)

behaviour has to be controlled. However there

pointed to the high breach rate of ASBOs and

is much evidence of poor use of them, leading

their cost. For some groups, such as those

to high breach rates. Positive Approaches

with mental health problems the breach

argues that alongside an emphasis on

rate can be very high and the consequences

properly resourced prevention and conflict

severe. The Elmore Team in Oxford, reports

resolution there is an urgent need to review

several such cases.

ASBOs in detail, so that we can learn properly

Tackling

Anti-social

New Start Magazine, 15th December 2006.

New

Start

Magazine,

September 2006.

22nd

the barrister

Why are barristers and journalists ranked so low on the public’s ladder of trust ? By Dominic Bascombe, reporter at The Voice Newspaper and a part time Bar student.

ut does that mistrust

control freaks and are used to choosing their

think there is a certain aloofness about the

translate between the

words very carefully. We tend to be very

Bar- a sense that we are to be judged by

professions or is there

squeamish about commenting to the press

what we do in court rather than what we

more of a symbiotic

where what we say can be twisted or turned

say outside of court. We’re performers but

relationship at work?

around. In court we exercise total control

unlike the footballers, we’re not very good

Every

barrister

over what is said in our cases. But outside

at interviews.”

dreams of winning the big case that gets

court it's a different matter. It's very easy

own dealings with the media have been

their name into the newspapers, boosts their

for a selective quote to give a completely

generally positive. “I’ve always appreciated

reputation, and, hopefully, leads to more

misleading impression."

the strengths and weakness of the press,”

work. And every journalist dreams of writing

Griffiths admitted that his

he said. “Consequently I don’t think I’ve had

about the public money that goes some way

"In terms of court reporting, I think that

a really bad experience with them to date,

towards lining the pockets of top briefs. Well,

the press does an extremely important

but that’s because I come from a position

maybe not every journalist, but it’s fair to

job. Inevitably the press will focus on what

of awareness having dealt with the media.”

say that there is a certain amount of tension

interests them, which won't

necessarily

One barrister who has had to deal with the

between the two professions. Journalist

present a rounded view. I think some

full glare of the media is Shaun Wallace,

turned barrister Guy Vassall-Adams believes

barristers are very uncomfortable with that

the 2004 Mastermind champion. “I found

that the media's misunderstanding of the

– they would like the case to be reported

it relatively easy to deal with the media,”

limitations on barristers to speak publicly,

just as they would have put it themselves -

he said. “It’s a tribute to the way we are

lies at the heart of it all."I think there is a

but on balance I think most appreciate that

trained to be dispassionate and cold but at

high degree of mistrust," he said. "Barristers

the press are playing a vital role and they

the same time to be yourself and engage

feel that comments they make are in danger

would far rather have imperfect coverage

with the public.” Dominic Ponsford, news

of being quoted selectively and taken out of

than none at all." The strains of inter-

editor of the Press Gazette, believes that the

context."

professional trust are even more apparent

relationship between the two professions

at the criminal bar.

serves both sides equally well. “Its fairly

He continued: "In addition, there are the

mutually beneficial,” he said. “Barristers

rules of professional conduct that prevent

Courtenay Griffiths QC explains: “The first

are fairly keen to get their name in the

barristers from commenting on their own

point is that barristers, particularly defence

press and enhance their reputation. They

cases. The press doesn't always appreciate

barristers, are very wary of the press

are also a very good source of stories for

this limitation. For these reasons, many

because the press are primarily concerned

journalists because they are at the heart of

barristers prefer to leave it to the solicitor

with sensationalism.

important legal decisions.

to speak to the press and solicitors generally

particular pattern in criminal cases, in

are quite keen to get name dropped in the

have much more experience in this area."

that they turn up and hear the prosecution

press.” The fairly low media visibility of the

He added: "It's fair to say that barristers

but don’t listen to the rest of the case,

Bar, apart from high profile cases and the

are people who like the sound of their

so they transmit a warped and distorted

few barristers that have become household

own voices.

Most barristers very much

view of events.” “On an egotistical level,

names, can perhaps be attributed to two

like the idea that what they do is going to

every barrister wants to be doing the cases

main factors: the strict influence of the Bar

be covered by the press, but barristers are

that puts them in the press.”He added: “I

Code of Conduct, and the absence of cameras

The press follow a

And barristers

34 in the

the barrister

courtroom. Tom Crowther of the

tendency to work anonymously. Things have

cases that get tried in the press, the only

Bar’s Professional Practice committee doesn’t

opened up now with accessibility. You are

restriction on what is said is that nothing

believe that there is need for any changes to

seeing barristers being much more engaging,

confidential can be revealed,” said Paynter. So

the code when it comes to barrister’s dealings

not necessarily talking about their work but

can, or even should English lawyers become

with the media. He said: “Most advocates are

showing that they do have a public face.”

as media savvy as their US counterparts?

comfortable with the transparency that that

Vassall-Adams said: "I think that media

“There’s a world of difference between the

gives, in that their roles is a representational

training would be of assistance to barristers.

way their profession operates and ours,”

one. It’s not about your own point of view but

Certainly we're very often in these chambers

said Griffiths. “Attorneys in the states live

presenting a case. Most of us judge that it’s

(Doughty Street) asked for quotes about cases

in a society where the media are everything.

not a part of our job to give opinion. I don’t

or asked to appear in radio and television

Here in the UK we are bit more cynical about

sense any great groundswell to change that.”

programs. I think many barristers feel

the press.”

He added: “I can’t think of many barristers

nervous about taking that step. If they are to

standing on the steps of the Royal Courts of

have that training, it could make them feel

Dominic Bascombe is a reporter at The Voice

Justice giving a statement with flashbulbs

more comfortable with that role." In the US,

newspaper and a part time Bar student.

going off at them.”

lawyers seem to be savvy in their handling of the press, knowing exactly when and where

Crowther believes that dealings between

to inject that perfect soundbite.

barristers and journalists are pretty much

US lawyers such as Johnnie Cochrane and

as they should be: “On an everyday level,

Robert Shapiro immediately spring to mind.

our relationship with journalists in the

Much of their reputation was developed

court is as cordial as with any one of the

through the presence of having cameras in

parties in the courts,” he said “It’s certainly

the courtroom. This is not to say that there

not a relationship of hostility- lawyers and

is any better a relationship between lawyers

journalists are both pretty low in the public’s

and the media there however.

esteem!” And as for media training?

Celebrity

“I

don’t think its necessary,” he said. “Does

Carol Paynter, a senior attorney at the

the general image of barristers in the media

Federal Trade Commission explained: “There

reflect us?

The answer is no. But that’s

is generally not a close relationship between

not media training- it’s what makes good

lawyers and the media. Most cases occur

television.” However both Wallace and Vassall

outside of the spotlight and proceed without

Adams disagree.

fanfare. The exception obviously is the case

“I would recommend media training,” said

that has a lot of notoriety –for example the

Wallace. “No matter how confident you sound,

Enron prosecutions or the prosecution of the

there is a way you present yourself, speak,

mentally ill woman who drowned her five

dress, and stand. Media training is beneficial.

young children. The lawyers may have to give

There is also a perception that barristers

interviews etc but they are bound by issues

come from the middle classes, speak with

of attorney client privilege and generally

posh accents, and are fat cats, and that can

can't say much more than is already in the

be far removed from the truth.” He continued:

public record.” And again, US lawyers don’t

“Traditionally you never knew who barristers

face restrictions on commenting on their own

were -only the famous ones like George

cases unless the case is filed under seal or the

Carman or Michael Mansfield, otherwise they

judge has issued a specific "gag"

were not really known. Barristers also have a

order.”

“So we do have many notorious

the barrister

Taking alcohol personally? 1. In November of last year, the European Court of Justice was faced with a preliminary reference of great significance to the Treasury: Staatssecretarias van Financiën v. B.F. Joustra. Unusually, the problem did not involve Carousel fraud, but involved a Dutch wine club and the distance buying of excise goods. If the media were to be believed, the decision put at risk the £16 billion of revenue that the Treasury annually receives from this type of duty. By Ian Macwhannell, Barrister, who at the time of the decision of the ECJ worked as a Caseholder in the Customs and Excise Litigation Department. This article expresses his own opinions and not those of H.M. Revenue and Customs. purposes.

On appeal, the Supreme Court

goods are held for the purposes of a trader

of the Netherlands, the Hoge Raad der

carrying out an economic activity. Article 9

Mr. B.F. Joustra and around seventy

Nederlanden, made a preliminary reference,

states that duty is chargeable in the Member

friends established the ‘Cercle des Amis du

consisting of four questions regarding the

State of destination if the goods are held for

Vin’ (the circle of friends of wine).

The

interpretation of Articles 7 to 9 of Council

a commercial purpose. Article 10 provides

group was conceived when a number of wine

Directive 92/12/EEC, to the European Court

that duty is chargeable in the Member State

enthusiasts purchased wine from vineyards

of Justice.

of destination where transport is arranged by

that they had visited whilst on holiday in

whether a private individual, who purchases

France. Each year the group ordered wine

excisable goods in one Member State for

from producers that they had visited. The

himself and for others and then arranges for

wine was collected by a Dutch transport

them to be transported to another Member

company and delivered directly to Mr. Joustra.

State, by an agent established in that other

He paid for the wine and then stored it in his

Member State, should pay excise duty in that

garage until the other members collected it

latter Member State.

General Jacobs was responsible for the

THE FACTS

The Court had to determine

the vendor.

THE ADVOCATE GENERAL’S OPINION

The

Opinion

Advocate

Each member never imported

media excitement that surrounded these

more than the guideline limit of goods, paid

proceedings. Jacobs was of the opinion that

from him.

a proportionate part of the transport costs

THE LAW

excise goods which had been purchased by a private individual could be transported by

and reimbursed Mr. Joustra for their share The Articles of Council Directive

a third party without incurring duty in the

he ever seek to, make any profit from the

92/12 that formed the subject of the reference

Member State of destination. The decision

arrangement.

are part of the legislative framework that

represented a significant departure from the

governs the system of the internal market.

established principle that an individual had

Directive 92/12 distinguishes between goods

to travel with the goods that he had acquired

held for commercial purposes and private

to enjoy them duty free in the Member State

purposes.

of consumption.

of the wine.

Mr. Joustra did not, nor did

THE PRELIMINARY REFERENCE

It dictates that excise duty is

The reference was made in the

chargeable in the Member State in which

course of proceedings between Staatssecretaris

goods are first released for consumption.

van Financiën (State Secretary for Finances)

Article 8, however, stipulates that if private

favoured

and Mr Joustra concerning the EUR 906.20

individuals acquire goods for their own use

‘transported by them’ element of Article 8,

of excise duty levied upon a consignment

and that those goods are ‘transported by

which would render the goods in Mr. Joustra’s

of wine.

Mr. Joustra appealed against the

them’, duty is chargeable in the Member State

case commercial and, therefore, liable to

decision to the regional appeal court, which

in which the products were acquired. Article

duty in the Member State of destination. The

found in his favour, on the basis that he

7 provides that excise duty is chargeable

reasoning behind this was that the goods had

did not hold the importation for commercial

in the Member State of destination where

been transported by an agent and not by the

The a

interested strict

Member

interpretation

States of

the

the barrister

commodities. It was submitted that the costs

the Member State of importation’. The panic

of shipping heavy bottles of booze would

was over and the Chancellor breathed a sigh

outweigh the savings that British consumers

of relief. The Court did not adopt the Opinion

interpretation of this element of Article 8,

could make.

of the Advocate-General.

furthering the objectives of the internal

the perpetual need for the convenience of an

market. He distinguished the case of EMU

off-licence. The threat to the Treasury was,

14.

Tabac and Others, also known as ‘The Man

however, undeniable.

Joustra’s case.

individuals themselves.

Jacob’s

preferred

flexible

More compelling, perhaps, is

The Court succinctly expressed Mr. It stated that the nature

of his argument was that the Community

in Black’ case, on the basis that it concerned the distance selling of goods and the present

11.

The Opinion of Advocate-General

legislation, in particular Article 8, should not

case concerned the distance buying of goods.

Jacobs appeared to be a sound one, based

be interpreted to mean that an individual

In that matter the Court had ruled that duty

on a workable interpretation of the relevant

must travel with excise goods that he has

would be chargeable in the Member State of

provisions.

It considered the purpose of

acquired, if, he has the initiative to arrange

consumption where individuals purchased

the internal market, in so far as individuals

the transport for himself through an agent.

goods from a vendor who then arranged

should have unbridled access to goods

This argument was based on the aversion

transport

individual.

and services in other Member States. The

that the provisions are designed to ensure

Joustra had arranged the transport in these

Opinion was inline with the recitals to the

that own-use goods can move freely within

proceedings, not the French vendor.

Directive, which state that ‘… to ensure the

the Community.

behalf

the

establishment and functioning of the internal 8.

Jacob’s formed the opinion that Mr.

Joustra should pay duty only in the country

market, chargeability of excise duties should

15.

The

Court

be identical in all the Member States.’

flexible interpretation.

discounted

this

It found that the

Community legislature used an express

of acquisition on the goods that he had 12.

had arranged for the goods to be transported

countered

individuals

Articles 9(3) and 10(1) of the Directive. The

by an agent.

importing huge quantities of excise goods

Court made reference to the Greek and

because it allowed Member States to set

Danish versions of the legislation and found

In relation to the rest of the

guidelines concerning the importation of such

that they were particularly clear that the

consignment, Jacobs considered that these

goods. The Opinion correctly stated that an

individual must effect transport. It affirmed

goods were held for commercial purposes.

accompanying document scheme monitors

the decision in The Man in Black, where it

He reached this conclusion on the basis

commercial movements of excise goods and

stated that transportation must be effected

that, even if Mr. Joustra imported the goods

that the possibility of large private movements

by the individual and established that the

without any contemplation of making a profit,

would undermine this. In this respect, the

use of an agent was a good indication of

he was still conducting an economic activity

Opinion

commerciality.

because he was acting as a competitor to

of this difference and the practicalities of

not include a situation in which a private

any other business that imported excisable

border control.

individual transports goods for other private

goods.

problem in the United Kingdom, where duty

He outlined that the legislation

provision regarding the use of agents in

imported for himself, despite the fact that he

the

problem

underestimated

the

importance

This posed a particular

It interpreted Article 8 to

individuals.

rates and movements of excisable goods are 10.

The

media

pounced

what

they described as a terminal decision for the Treasury.

high and Customs patrols are relatively low.

16.

In addition, excise fraud is already rife.

10 did not apply to the situation in the proceedings because the buyer had arranged

The potential for Internet

the transport.

shopping was huge. Individuals could order all the hectolitres of alcohol that they could

The Court determined that Article

Article 9, as a corollary of

Article 8, was not applicable either. The Court

THE JUDGMENT OF THE COURT

did, however, conclude that the proceedings

guzzle and the tonnes of tobacco that they could smoke and simply arrange transport

13.

The Press Release of the Court

came within Article 7. The Court stated that

from the comfort of their own homes.

could not have been clearer: ‘Only products

if goods were not for private use, they were

was potentially damaging not only for the

acquired

private

necessarily for commercial use. To prevent

Revenue, but also for the traders of these

individuals are exempt from excise duty in

double-recovery of duty, if duty had been

and

transported

the barrister

paid in the Member State of acquisition, it was to be reimbursed in the Member State of destination, once the applicable duty had

1 Case C-5/05, 23rd November 2006

been paid in that State.

2 BBC News, 22nd November 2006

17.

The

interpretation

Court of

the

did

not

alter

provisions

the the

Directive, but the Court’s ruling could appear to leave the door open to a situation in which

3 of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1), as amended by Council Directive 92/108/EEC of 14 December 1992 (OJ 1992 L 390, p. 124).

a private individual could use an agent to import goods purely for himself.

This is

4 Delivered on 1st December 2005

because the judgement could be interpreted

5 Case C-296/95, 2nd April 1998

as being confined to a factual situation in

6 The fourth recital of the Directive

which a private individual imports goods for himself and for others.

The Court’s

7 Press Release No.93/06, 23rd November 2006

restrictive interpretation of the ‘transported by them’ element of Article 8 should prevent this.

CONCLUSION

18.

On its face, the Opinion of the

Need a Reason to Subscribe? uif!cbssjtufs

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Advocate-General appeared to be correct, in light of the purpose of the internal market. It did, however, underestimate other practical issues, such as the damaging effect it would have had upon the Treasury, border control and trade.

Sceptics may have considered

that the narrow factual situation to which the

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What is going on? of rapidly falling Why, during a period is criminal justice official crime levels almost permanent apparently mired in right about criminal crisis? Are ministers justice failure? what are the implication If so, s? By Richard Garside, Acting Centre for Crime Director, and Justice King's College Studies,

12 THINKING ACROSS THE DIVIDE Lord Carter’s report heralds a revolution in the way legal procured. Solicitors aid services are each been looking and barristers have themselves, but at the implications for to date there little considerati has on of the impact been relationship between on the of the legal profession.the two branches By Richard Miller, director, LAPG

PUNISHMENT, PENANCE AND 14 IMPACT: THE VAGARIE SENTENCING

News p.20 UK Governm ent to open up legal urges South Africa services market

Editor: Nigel Simmonds 0870 766 2715 email: info@barris termagazine.com Publishers: Media Management Corporation Ltd Publishing Director: Derek Payne Design and Production : Alan Pritchard Cambridge Printing Park Tel: 01223 423000

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POLICY.

Sentencing has never been so a media issue popular as during the of 2006. What summer has reasoned discussionnot surfaced is a of sentencing principles and penal policies. By Professor Christine Piper, of Social Sciences School and Law, Brunel University

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Why is the reintroduction of means-testing for criminal legal aid such a cause for concern? By Dr Peter Kenway, Director, New Policy Institute

he Criminal Defence Services Act reintroduced the meanstesting of legal aid for criminal cases. It took effect in the Magistrates’ Court in October 2006 and is expected to be introduced into the Crown Court at the end of 2007. We only became aware of this legislation after it had been passed into law. To an organisation that spends a lot of its time working on the subject of poverty, what caught our eye about this legislation were the rules that determined whether someone would be eligible to legal aid. Money delivered via means testing, both as social security benefits and as tax credits, has been at the heart of this government’s attempts to defeat poverty by encouraging working-age adults into work and supporting them with state money when they are there. The in-work support available is especially generous for lone parent households. Yet when we started to look at how the rules governing the means-testing of legal aid would impact on certain types of family, we quickly discovered that a lone parent with one child, working 40 hours a week on the minimum wage (£5.35 an hour) could be one of those people who would no longer be eligible for criminal legal aid. It is true that this lone parent only just fails the test of eligibility and that just small changes in circumstance could alter the outcome. Even so, it is an extraordinary conclusion. We therefore looked further, using an official dataset on household incomes (the source among other things of the numbers on how well the Government is doing in reducing poverty) in order to work out some overall estimates of how many households are now no longer eligible for legal aid as a result of the means testing rules. Although such figures are always subject to some uncertainty, we estimate that around two-thirds of adults in working households and about a half of all adults in England and Wales (some 20 million people) are now no longer eligible. What is striking about all this is how much at odds it is with the rhetoric that was used when the legislation was going through parliament. Then, to quote the phrase of the minister, Ms Bridget Prentice, during the Bill’s Second Reading, the target was those ‘wellpublicised cases in which apparently wealthy

individuals are able to claim legal aid’. Her ministerial colleague, Mr. Nick Ainger, went further. ‘On too many occasions’, he said, ‘those clearly able to afford the cost of their own representation and perhaps convicted of some of the most repellent and socially corrosive crimes are receiving the benefit of taxpayer's money through the legal aid system’. As examples of what he was talking about, he named a convicted murderer and a professional footballer accused of spitting. 1 There are several things about the way that means testing has been reintroduced into the magistrates’ courts that are troubling. The first is whether this was what parliament intended. It is clear from Hansard that parliament did not object in principle to means testing for criminal legal aid. But there is nothing in the debate on the primary legislation to suggest that parliament knew that the implementation of means-testing would remove eligibility for legal aid from so many. Part of the reason why this happened is the way in which legislation of this kind is enacted in two parts: the primary legislation covering the principle and the secondary legislation setting out the detail. In cases like this, where it is the detail that determines how many, and who, are to lose a right, or pay a charge, the two parts have to be considered together. It was during the scrutiny of the secondary legislation that the Government’s own estimate, that 46% of defendants would fail the test (a figure published in the Final Regulatory Impact Assessment) became clear. 2 This seems as far removed from the original rhetoric as our own estimates are. The deeper problem, however, lies with the type of argument which begins by identifying an ‘undeserving’ group who supposedly should no longer enjoy what was previously a universal right. Whenever such a claim is made – in this case about apparently wealthy individuals, especially if they have committed an odious crime –it must be subject to careful scrutiny and not just accepted as self-evident. Yet that rarely seems to happen nowadays, perhaps because we have become inured to the way in which individuals and groups are singled out by politicians and media. This parade of the ‘undeserving’ then provides a ready source of characters to play the part of the ‘enemy within’, against whom politicians

can battle righteously, rather make the case on its merits. As happened here, once the principle is breached, it is then much easier to enlarge the group of people who will actually be affected as a result of the change. This still leaves the question of why the regulations were implemented in a way that leaves so many people ineligible. That is not an inevitable consequence of means-testing. For example, the £10 a week ‘family element’ of the child tax credit goes to all but about 10 per cent of households with children, the cut-off for entitlement being a gross annual household income of around £50,000. If the Department for Constitutional Affairs had wanted to, it could have borrowed a really simple rule like this from HM Revenue and Customs. This would have had the considerable merit of producing effects commensurate with the case put forward for it. The reason why it did not adopt a rule to exclude, say, just the richest 10 per cent is presumably because it would not have saved enough money. As it is, even when around half of the adult population is rendered ineligible, the Government estimates the saving to be £35 million a year. 3 That works out at just £2 a head for every person we estimate to be no longer eligible – laughably bad value for money. From the economic point of view, this is the essence of the argument against means-testing for legal aid. Certainly, the Government could amend the regulations in order to deal with the most embarrassing examples of people who are not eligible at the moment. But even if it makes these corrections, we do not believe it is possible to devise a means-testing scheme that saves much money without depriving large numbers of working people of eligibility to legal aid. Peter Kenway Director, New Policy Institute www.npi.org.uk 1 Hansard volume 438, 13 Dec 2005 columns 1240 and 1273 2 Criminal Defence Service Act 2006 – Final Regulatory Impact Assessment, paragraph 5.10 3 Criminal Defence Service Act 2006 – Final Regulatory Impact Assessment, paragraph 5.37

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