barmag35

the barrister

#57

ESSENTIAL READING FOR BARRISTERS

4 th J une - 31 st J uly 2013

E st . 1999

www.barristermagazine.com

TRINITY Term ISSUE

ISSN 1468-926X

QASA: The Northern Circuit’s Views

Features

My predecessor as Leader of the Northern

the Scheme still afforded the opportunities

Circuit Richard Marks QC, now a Judge at

for more recently qualified advocates to

the Old Bailey, in his final column in the

gain

Circuit magazine in November 2010 spoke

dealing with lower

of the faint signs of hope that boded well

categories of case

for the future of the Criminal Bar. One of

before graduating

them was the proposed introduction of the

to more serious

Quality Assurance scheme for Advocacy.

work

It was genuinely believed at the time that

more

such a scheme provided the opportunity

environment.

for the Bar to win back lost work in

There was a clear

the Crown Court by making quality the

perception

determining factor as to the distribution of

inexperienced and

work. Properly devised and administered

u n d e r- q u a l i f i e d

Youth Justice, Education & Prison 14 Attitudes:

By Emily Lanham, third year law student at university of York

experience

but

in

price ÂŁ2.80

Tenacity of British Colonial Laws in the Lives 24 The of Sexual Minorities in the Commonwealth

By Treva Braun, Legal Director, Human Dignity Trust

a

regulated Legal Aid 34 Transforming

By Chris Grayling MP,

Secretary of State for Justice and Lord Chancellor

that

Rick Pratt QC Leader of the Northern Circuit

p.6

The quest for the smoking gun 36 E-Disclosure:

By Damian Murphy, Barrister, Enterprise Chambers, Newcastle-upon-Tyne

Improving judicial diversity and the selection of judges Judicial diversity has been the subject

all levels of the judiciary; and selections

of substantial media comment and has

of BAME candidates are increasing - but

stimulated debate around the lack of women

more needs to be done by all involved.

and black, Asian and minority ethnic

Women may still only constitute 28.8 per

(BAME) judges on the bench, especially at

cent of the judiciary, and only 5.8 per cent

the most senior levels. The debate comes

have a BAME background, but the JAC has

at a challenging time, as we are all dealing

selected 1,040 women (38 per cent) and

with the impact of the current spending

267 BAME candidates (10 per cent) out

restrictions.

of 2,743 selections for legal and non-legal

News 03

Law Society Excellence Awards now open for nomination

05

Bar Council appoints new chief executive

Publishing Director: Derek Payne

roles since 2006.

0845 5190 176

The Judicial Appointments Commission

email: info@barristermagazine.com

(JAC) has made good progress on increasing

These are not the only areas of judicial

diversity in both the courts and tribunals -

diversity

more women are being recommended across

to

we

progress.

monitor

and

Disability,

Design and Production: Alan Pritchard

seek sexual

Publishers: media management corporation ltd email: info@soinspire.me.uk

p.8

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NEWS

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Law Society Excellence Awards now open for nomination The Law Society is inviting legal professionals from across England and Wales to enter the Excellence Awards 2013.

Now in its seventh year, and bigger than ever before, the event showcases some of the brightest minds and most innovative firms.

This year, the focus is on individuals and teams across the legal sector who are setting new precedents in the profession.

Law Society Vice-President Nick Fluck said: If you or your team are breaking new ground, if you

have shown great innovation, if your work has been outstanding, we want to hear from you.

Now is not the time for modesty and playing down your achievements.

By entering the Excellence Awards, you can build your reputation, achieve the respect of your peers and spend some well-deserved time in the spotlight in return for your hard work.

This year?s expanded event at the Park Plaza Hotel in Westminster is hoping to see first hand the kind of innovation and talent that drives the profession forward.?

There are seventeen categories in the 2013 Excellence Awards.

New awards for this year include Excellence in Diversity and Inclusion, Excellence in Pro Bono, Excellence in Marketing and Communications, Excellence in Business Development and Innovation, and Excellence in Exporting Legal Services.

The remaining categories for teams are The Lexcel Award for Excellence in Practice Management, Legal Sector Alliance Award for Excellence in Environmental Responsibility; Excellence in Client Service; Excellence in Learning & Development and the CQS Award for Excellence in Conveyancing Practice.

Categories for individuals are: The Law Society Gazette Legal Personality of the Year; Legal Business Woman of the Year; Solicitor Advocate of the Year; Junior Lawyer of the Year; Solicitor of the Year (In House and Private Practice) and Lifetime Achievement Award.

Nominations are now open until August 9 2013. Visit the website for more details.

The shortlist will be announced on 16 September 2013. The winners will be announced at a gala awards dinner on 22 October 2013 at the Park Plaza Hotel, Westminster Bridge, London.

Stopping poor quality and time-wasting expert evidence in family courts New national standards to raise the quality of experts used in family courts and get rid of timeconsuming evidence which adds little value in helping judges reach a decision were announced by the Government on May 16 In the latest stage of reforms to improve and speed up the family justice system, the Ministry of Justice has proposed introducing the new standards so evidence provided in a family court can only be given by qualified, experienced and recognised professionals.

For far too long there has been an increasing trend in England and Wales for expert witnesses to provide unnecessary and costly evidence – in the form of

further written statements, clarifications and additional court appearances. This can cause major delays in child care cases and in the worst examples this has led to cases being forced to start again.

Under the new plans experts who are well-qualified and experienced will continue to provide their valuable service in advising the family courts – but the so-called experts who provide evidence which is simply not up to scratch will be driven out.

Family Justice Minister Lord McNally said: “Poor quality expert evidence can lead to unacceptable delays for children and their families.

“By putting standards in place we will ensure only the highest calibre of evidence is permitted in family proceedings.

“We want to ensure that evidence being put forward is more robust and that cases are resolved more quickly. It is an opportunity we cannot afford to miss.”

This consultation is being jointly led by the Family Justice Council and follows the independent Family Justice Review by David Norgrove which identified weaknesses in the quality of evidence being put forward by experts at family proceedings involving children.

Dr Heather Payne, Chair of the Family Justice Council’s Experts Working Group, which drafted the standards said: “The standards are designed to improve the quality, supply and use of expertise to improve outcomes for children in the family courts.

They are intended to help

experts and the courts alike, to ensure that they are delivering the relevant and high quality opinions based on the best possible evidence which the family courts need to help them make decisions.

“They also seek to provide the courts and lawyers with clear guidance on how to ensure that expert evidence is sought from an expert of the appropriate discipline, with appropriate professional qualifications.

“The standards are a first step to promoting the more effective and intelligent use of expert evidence.”

In the 12 months before October 2011, £52 m of legal aid was spent on expert reports and this consultation is designed to tackle the costs and delays brought about through poor quality evidence.

NEWS

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Focus on customer service as Southampton barristers meet challenges of changing legal landscape Barristers at College Chambers are tackling the region’s rapidly-changing legal landscape head-on by raising standards of client care to the highest possible level.

And the Southampton chambers is underlining its commitment to openness and approachability by demystifying the perception of barristers and the law.

“We are working hard to encourage solicitors and clients to experience for

themselves the customer service we are known for,” said Derek Marshall of College Chambers.

With a range of clients – including national companies, local firms, government departments and individuals – the set provides expert advocacy and professional advisory services across many practice areas.

The legal landscape is changing though.

If ministerial proposals to cut the budget for legal aid further are carried through, this could have an adverse

impact on many seeking representation – and the law firms they may have called upon. Derek says a focus on customer service, in addition to a high level of specialist experience and expertise, will set the firm apart from others in the region.

“Our members are specialists in, family, civil, chancery, employment and commercial law – as well as dispute resolution and mediation.

And we are especially proud of the customer service we provide to clients – including our close working relationship with the region’s solicitors,”

added Derek.

“Providing value for money is also very important to us here at College Chambers.”

The set prides itself on thorough and meticulous preparation – allowing each barrister to consider all elements of a case efficiently and effectively. And building a strong working partnership with solicitors is top of the agenda. college-chambers.co.uk

Legal profession joins forces to oppose unreasonable legal aid proposals On 14 May 2013 Representatives of the Law Society and the Bar Council joined forces with wider practitioner bodies to oppose the Ministry of Justice consultation on proposed savage cuts to the funding of the criminal legal aid budget, the introduction of pricecompetitive tendering and other changes to the criminal justice system.

Following a meeting on 29 April with representatives of the Legal Aid Practitioners Group (LAPG), Criminal Law Solicitors' Association (CLSA), Criminal Bar Association (CBA), Solicitors Association of Higher Court Advocates (SAHCA), the Big Firms Group, London Criminal Courts Solicitors Association

(LCSSA), Society of Asian Lawyers (SAL), the Bar Council and Law Society said the solicitor and barristers professions were united in their decision to work together to oppose the proposal.

The immediate concerns on which all were agreed are: • The proposal to abolish freedom of choice of representation is an unacceptable inroad into the basic rights of those facing criminal charges • The imposition of price-competitive tendering with the price cap will make it uneconomic for firms to provide quality services, leading to a wholesale exodus from the market; • The fixed contract sizes will make it impossible for smaller firms to remain

in the market and provide no incentive for firms to compete on quality; and

work and efforts to protect the already hard pressed system.'

Desmond Hudson added:

• The flattening of fee rate so that a solicitor is paid as much for a guilty plea as for a potentially complex case where a client is not guilty will introduce perverse incentives and a danger of miscarriages of justice.

'There is a very high level of concern across all legal practitioners at these proposals. Amongst many examples, the attack on a defendant’s right to freedom of choice of his or her lawyer is grave. The state will prosecute you and then decide who can represent you.'

Commenting after the meeting Law Society chief executive Desmond Hudson said: 'There was an unprecedented level of agreement between all who attended on our opposition to these four key aspects of the Government proposals and our concern that they will sabotage the criminal justice system of which this country is rightly proud. We will be working together over the coming weeks and months to coordinate our campaigning

Maura McGowan Chairman of the commented:

QC, Bar,

'The Bar fears that these proposals, if implemented, will reduce even further the right of the less well-off to quality legal representation, whether in civil or criminal matters. That right is a basic tenet of a democratic society and should not be further eroded.'

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Bar Council appoints new chief executive The Bar Council has appointed a new Chief Executive.

Stephen Crowne, who took up the post on Monday 3 June, joins with wide-ranging experience of public and private sector leadership, most recently as Senior Director, Global Education, at Cisco, one of the world’s leading providers of networking equipment.

organisation remains fit for

He joins the Bar Council at a

the world. It is a privilege

purpose, financially robust,

time of great change for the

to have this opportunity to

cost-effective

profession.

help them to respond to very

The Bar Council’s decision to

Maura

appoint a new Chief Executive

Chairman of the Bar, said:

Stephen Crowne said:

Council with strong leadership

“We

that

“Barristers are a vital part of

and

management

Stephen agreed to take up

our justice system, and the

ensure

the role of Chief Executive.

Bar is widely admired around

and

focused

His

experience

on serving the interests and

in the Civil Service at senior

challenging

needs of the Bar. The role

levels and more recently in

forward to supporting the

of the Chief Executive is to

business will help us as an

officers and members of Bar

facilitate the operations of

organisation to address the

Council, and to leading and

the Council’s various policy-

challenges

shaping a highly professional

making committees and to

and

support the Bar Council in the

in

development of its strategy

governing body operates and

integrity,

and

enable us meet the needs of

success of the Bar, ensuring

the profession and its clients

access to justice for all.”

the

fulfilment

of

its

Approved Regulator role.

of

complex which

the

the

diverse

environment profession’s

times.

organisation.

I

I

want

look

to

help secure the continuing excellence

and

more effectively.

McGowan

QC,

reflects its wish to provide the general

expertise

to

the

are

delighted

Bar Standards Board extends first registration phase for QASA The Bar Standards Board will extend the first QASA registration period to ensure that the Criminal Bar will have more time to consider the consequences of government changes to legal aid before registering. The end of the first registration period will now be 7 March 2014, which will be after the Ministry of Justice publishes its final response to the consultation, 'Transforming legal aid: delivering a more credible and efficient system'.

Bar Standards Board Chair, Baroness Ruth Deech explained: "The Criminal

Bar is facing unprecedented change and understandably its current focus is on responding to the legal aid consultation to ensure proposals do not impede access to justice. Likewise, the BSB is also drafting a robust response which will focus on the impact of proposed changes on the public interest.

system, and sits separately from government plans, we recognise that the Bar will need time to reflect once the final legal aid plans have been announced. Extending the QASA registration period therefore provides extra time for barristers in the Midlands and Western Circuits to consider the full impact of any changes.

"However the Ministry of Justice is scheduled to publish their final plans for legal aid during the first QASA registration period, and whilst QASA is a guardian of competence, not a pricing

In addition to QASA, the Bar Standards Board is working to help barristers adapt their business models (through, for example, direct access and alternative business structures) so they can

continue to provide excellent advocacy if the Government does choose to procure services in the new way."

A- Z of Barristers Chambers online now accessible on your mobile phone and ipad

06

the barrister

advocates were appearing in

may govern the subsequent trial process

understand that these three features of

more complex cases and this

which he/she is not qualified to conduct.

the scheme taken separately or together

was harming the reputation

It is no answer for the BSB to say that

defeat the stated aims to create a level

of advocacy in the Crown Court in

this situation is already in place. As the

playing field across the legal professions

particular.

Bar's regulator the responsibility was to

and to ensure that all advocates in a

correct and not simply endorse bad or

case are indeed competent for that level

questionable practices.

of case.

announced in the Autumn last year

Even more startling is the determination

Alongside the criticisms of the scheme

with implementation expected in the

of the level of a case which will determine

itself lies the increasing conviction that

early part of 2013.

whether a particular advocate has a

a Quality Assurance Scheme, all the

of the large number of consultees who

sufficient level of 'competence'

(not

more so one which has its genesis in the

had criticised the proposed scheme, it

quality is to be noted) to do a particular

regulatory arm of our own profession,

remained in all the important detail

level of case. That decision rests with

will be used by the Ministry of Justice

unchanged.

the ' instructing party' and the 'advocate'

to counter sound arguments that the

who presumably in a Solicitor's firm

Government's proposals "Transforming

The most controversial aspect of the

may be the same person. Other than

Legal Aid etc"

scheme was the validation of a class of

in the general evaluation process there

down but will drive quality out of

part-qualified non-trial advocate or 'plea

is no judicial involvement in the setting

the equation in the provision of legal

only advocate' as it has become known.

of the level of the case. So, there will

services.

So-called safeguards were introduced

be nothing to stop or even challenge

such as a requirement that a 'plea only'

a solicitor from determining the level

The responses to these and other

advocate informs his/her client of the

of a case to match his/her grading

concerns will be predictable.

limitations of their permitted role in the

thereby retaining the work. Of course

have to do is register for the scheme

Crown Court. But it begs the question

one would hope that our brethren on

and in the two year period it takes for

why have part-qualified advocates in

the Solicitor's branch of the profession

accreditation we can look at it and iron

the first place ?

On the BSB website

would discharge this function properly

out any problems as we go along. The

it is said that the SRA identified a

but the BSB's own Perceptions Study of

trouble for that approach is that the

pattern of practice amongst a significant

2012 (relied on inter alia as providing

Bar has been listening to it for too long.

percentage

Advocates

evidence for the need for a Scheme)

Putting faith in promises of 'reviews'

which was restricted to PCMH, pleas

does not give one cause to be optimistic.

and undertakings to give responses to

and bail applications. That may indeed

It is understandable at first sight that

consultation full consideration is no

be so but why validate it just because it

silks

longer on the agenda.

exists ? The question simply is whether

assessments as to their competence, but

advocates whose range of experience

their inclusion in a single category with

As Circuit Leader I called a meeting in

does not include running a trial and

juniors sounds the clearest possible

February to ask the membership what

who do not aspire to run a trial can

warning bell, as to the erosion of the

the reaction was to this latest missed

provide the appropriate level of service

silk system at least in publicly funded

opportunity for the Bar.

in non-trial hearings.

criminal work.

The level 4 QC badge

just ask for a show of hands of those

non-trial advocate advise the client on

does no more than identify a level 4

present, the decision was to ballot the

a plea without trial experience ?

advocate (who happens to be a QC as

entire membership not to get a collective

well).

decision but to ask each individual :

p.1

In

the

event

following

the

fourth

consultation , the final scheme was

of

Much to the regret

Solicitor

How does the A

non-trial advocate may be permitted

should

not

escape

periodical

at PCMH for example to argue on case management or evidential issues which

will not simply drive

All you

Rather than

Will you sign up to this QASA scheme?

A moment's thought is sufficient to

Would you support other Circuits by

07

the barrister

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refusing to work on the Midland and Western Circuits if members of those Circuits refused to sign up ?

We set

up a strictly enforced secret ballot and the proceedings were overseen by a retired Circuit Judge.

The result was

when ordered before 31st July 2013

to all intents and purposes unanimous - nobody said they would sign up and there was a

very small number only

who spoilt votes. Most significantly of

part in the exercise.

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all was that virtually every member of the Circuit who practised in crime took

opposition to QASA as being in the

making sense of IT

hands of a 'noisy minority of dissenters'.

www.cbsit.co.uk

All the evidence suggests that the views of the Northern Circuit membership are echoed all around the country.

We

do not fear quality assessment - we thrive on it.

But the hope which my

predecessor voiced in 2010 has been

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09/05/2013 16:50

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get fooled again.' After years of having its goodwill exploited , the membership of the Bar is finally learning to say 'No'.

Rick Pratt QC, Leader of the Northern Circuit

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08 p.1

the barrister

orientation, religion and belief

been

greater

on merit’ does not prevent a candidate

and professional background all

diversity throughout the appointments

being chosen on the basis of improving

feature. We are also starting to

process.

diversity when there are two candidates

designed

to

support

of equal merit. You may have read or

look at social mobility.

The changes include:

heard this provision being referred to in

The JAC, working with the Ministry

•

the media and elsewhere as the ‘tipping

of Justice, Judiciary and professional

be extended to the High Court and

bodies, wants a judiciary which is

above.

visibly more reflective of society to

•

An ‘equal merit’ provision can

The JAC has given a commitment to

help enhance public confidence in the

be applied when there are candidates

consult on how it plans to implement

justice system. This year there will

of equal merit, to allow candidates to

relevant measures in the Act. We shall

be developments on judicial diversity

be selected on the basis of improving

therefore shortly be consulting on the

under provisions of the new Crime and

diversity.

application of the equal merit provision

Courts Act 2013. Insight into ‘barriers to

•

through

application’ by different groups is being

process for judges who are authorised

want good judges and it is important

provided by the production of up-to-

to sit as Deputy High Court Judges.

to be clear that the Commission is

date research in this area. While judicial

•

appointments

deeply committed to the principle of

office is not for everyone, it is vital that

below High Court will be transferred

appointment on merit – only the most

we recruit from the widest possible pool

from the Lord Chancellor to the Lord

meritorious candidates will continue to

of eligible talent and that applicants

Chief Justice or Senior President of

be recommended for appointment.

properly reflect the full diversity of

Tribunals, as appropriate.

the profession. Improvements to the

•

transparency, efficacy and speed of

on statutory consultation of judicial

process

the selection process for judicial roles

members for recommendations below

The JAC has developed a three-pronged

are also being made through a wide-

High Court level.

approach to diversity, placing it at the

ranging review.

•

heart of everything it does:

Salaried part-time working will

The JAC will run the selection

Approval

of

There will be more flexibility

Selection panels for judicial

factor’ or ‘tie-break’ provision.

our

Diversity

website.

and

the

roles above High Court will have an

•

Crime and Courts Act 2013

uneven number of members, and those

selection processes

In September 2012, it was reported that

making nominations to the panels must

•

20 of the 53 recommendations in the

have regard for the desirability of more

down barriers

2010 report of the Lord Chancellor’s

diversity among panel members.

•

Advisory Panel on Judicial Diversity

•

(chaired by Baroness Neuberger) had

Tribunals

been implemented and the remainder

Commission Board.

More

representation

judiciary

on

the

fair

and

The

JAC

public

selection

non-discriminatory

working with others to break advertising and outreach

from JAC

Fair and non-discriminatory selection processes

were underway.

The JAC takes great care to guard Under the Constitutional Reform Act

against bias (conscious and unconscious)

The Crime and Courts Act 2013, which

2005, the JAC has three key statutory

and to monitor candidates’ progress

received Royal Assent in April this year,

duties: to select candidates solely on

throughout our exercises. To ensure

makes possible further progress on

merit; to select only people of good

selection processes are fair, individual

implementing many of the remaining

character; and to have regard to the

tests and other assessment methods are

recommendations.

need to encourage diversity in the range

run past an Advisory Panel, comprising

of persons available for selection for

members of the different professions,

There are a number of provisions

appointments. An equal merit provision

and are also dry-run on individuals

which reform the judicial appointments

within

Act

who are eligible to apply for the roles

process. Several of the changes have

clarifies that making selections ‘solely

but are not intending to do so that time

the

Crime

and

Courts

09

the barrister

around. The progression of candidates

•

Exploring the use of a wider

have caring responsibilities - whether

through each stage of the selection

range of professionally validated online

for young or older family members.

process is reviewed for any anomalies,

tests, such as aptitude and psychometric

And we need to address the information

interviews are observed and all results

testing.

gaps that exist and the myths that sadly

are moderated to ensure a consistency

•

of approach between selection panels.

Judicial

We

System’

publish

official

statistics

every

Implementing a new ‘Online Appointments to

improve

Recruitment the

candidate

still abound.

Even

within

candidates

the

existing

eligible

to

pool

apply,

of

there

six months showing the diversity of

experience - through fully integrated

are perceived barriers to application

applications and selections and the next

online applications, testing and self

which need to be overcome if more

set of figures is due out in June.

booking of selection days - and to enable

women

us to manage applications more quickly.

going to successfully apply for judicial

We believe our selection processes are

•

appointment,

fair, open and transparent and enable

skills and experience needed for judicial

judicial levels. For this reason the JAC,

high quality candidates to be selected

roles.

with the Law Society of England and

from a wide range of backgrounds.

•

Improving our communication

Wales, the General Council of the Bar and

That is not to say there is not room

to ensure we attract the best candidates,

Chartered Institute of Legal Executives,

for improvement. We are currently

at the right time.

has recently renewed a survey first

Reviewing the competencies,

and

BAME

candidates

particularly

at

are

senior

undertaken in 2008 with members

transforming our processes to make better use of modern technology, so they

Maintaining confidence in our processes

of the legal profession. We wanted to

are faster, more convenient and user-

is paramount and we are looking into

understand what attracts people to, and

friendly for applicants and our business

recruitment best practice across a wide

deters them from, applying for judicial

partners, and less costly, while still

range of industries and professions.

office. The JAC therefore commissioned

maintaining an emphasis on diversity.

We will be collaborating with partners

research to investigate the extent to

and stakeholders to find the right

which perceived barriers exist and how

solutions and expect to be launching a

they differ between different groups of

consultation on this in June.

potential applicants.

Following

an

evaluation

of

pilot

exercises in 2011/12, use of online tests

Specific research objectives were to:

for shortlisting has now been adopted as standard JAC selection policy. This

Working with others to break down

•

better serves candidates, who are no

barriers

application for legal appointments

longer required to physically attend a

To really make a difference to judicial

•

test centre at a fixed time, and provides

diversity we need to work together -

barriers between different subgroups of

better value for money. The new policy

government, judiciary, professions and

interest

also met one of the recommendations of

individuals. Judicial diversity will flow

•

the 2010 report of the Advisory Panel on

from diversity in the legal profession –

can

Judicial Diversity, referred to above. We

we need talented and able lawyers to

through action or through addressing

are now piloting reducing the number of

be given the career opportunities and

misconceptions

references sought for certain exercises

aspiration to gain the experience in

•

to lessen the burden on referees, as well

their profession and then to be given

applications of the removal of those

as improve the candidate experience.

the support and encouragement to seek

barriers

judicial office. It is not a role for everyone

•

Other changes over the next 12-18

but we have to make sure it is equally

since the original study

months include:

open to everyone with the necessary

•

Delivering

improvements

shortlisting and selection days.

to

provide data on the barriers to assess

the

differences

in

look at ways in which barriers best

be

overcome,

whether

gauge the likely impact on

measure any change over time

ability. Similarly we need to make sure

The research by independent research

that the judicial career path meets the

company Accent took place in January

needs of modern working lives – many

- February 2013.

There was a good

10

the barrister

response; in total 4051 lawyers took the

‘barriers to entry’ research all having an

time to complete the 15 minute online

impact. I am keen to engage with anyone

questionnaire. The full results and the

who can work with us to advance the

questionnaire are now published on

cause of diversity and, as a result of their

the JAC website and an action plan is

contribution to the debate, the JAC’s

agreed. The findings are being used to

chairman recently invited and met with

inform the JAC’s approach to reaching

both Baroness Hale and former DPP Ken

out to potential applicants and the way

Macdonald. We will also continue to work

in which the Law Society, the Bar Council

with the legal professions - including

and CILEx promote judicial office as a

the employed Bar - government and the

career move.

judiciary to retain, inspire and mentor a wide range of meritorious lawyers from

Advertising and outreach

different backgrounds throughout their

As public funds continue to diminish the

legal and judicial careers. The hope is

JAC has significantly reduced paid-for

that by working together we can turn into

advertising, seeking instead to promote

a reality the aspiration of faster progress

information

towards a more diverse judiciary.

through

partners,

our

website and emerging digital channels such as LinkedIn and Twitter (follow us

By Martin Forde, QC - barrister at One

@becomeajudge).

Crown Office Row, Recorder and Judicial Appointments Commissioner

The JAC has continued to provide speakers, both staff and Commissioners, for around a dozen seminars and events per year across the country, to explain the

selection

forthcoming Feedback

process judicial

remains

and

highlight

opportunities. positive

but

attendance can sometimes be low, so we have supplemented the events with a dedicated webinar channel. So far, it hosts three webinars created last year – including two covering the application process and ‘life as a judge’ and one focussing solely on references. The JAC has also collaborated with the College of Law on a webinar which includes a JAC selected Recorder. All webinars can be accessed through our website.

In summary, 2013-14 will be an important year for furthering judicial diversity and improving the judicial selection process – with the Crime and Courts Act, the JAC selection process review and the

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the barrister

It’s a challenge to keep IT systems fresh to meet the demands of 21st century chambers.

By Jitendra Valera, chief marketing officer of Advanced Legal, explains why ‘hosted’ is becoming the new buzzword for forward thinking barristers.

Growing trend

T

he

fastest

growing

sits in the corner of a room and is

hosted and fully managed system.

‘nurtured’ by a small team of internal IT

Hosted

staff or external contractors.

Put simply, under a hosted service the

technology trend for barrister’s

core software applications, including

chambers

The problem with this model is that

barristers’

in 2013 is the use of

maintaining ageing systems is hugely

software,

‘hosted and managed’

labour intensive, slow and unreliable.

powerful servers in secure data centres,

IT infrastructures in

The reliance on a small set of people

negating

within chambers to not only identify

technical equipment in the building.

chambers.

chambers is

hosted

the

need

management on for

dedicated, expensive

and resolve IT problems but also

This means that chambers can be

Hosted IT services are common in

enhance and update the system in

sure of receiving the latest technology,

most business sectors but less has

such a restricted environment is risky.

crucially,

been researched about the effects this

Bloated, archaic ‘bespoke’ systems are

upfront and can achieve substantial

technology will have on chambers and

common in chambers where there has

business efficiencies as a result.

the way barristers and clerks operate.

been a temptation to make do with

Replacing obsolete servers becomes a

The

used

the status quo and try to bolt on extra

non-issue and saves money. Data and

interchangeably with cloud computing

infrastructure and software over a

infrastructure is fully backed up so there

and software as a service (SaaS) in a

period of time at the expense of security,

is a safety net should the need arise to

business context. Whilst the nuances of

reliability, usability and commerciality.

recover information.

these terms are different they principally

The result of all this tinkering is a messy

Reduced budgets

refer to an efficient and secure offsite

complex web of mangled infrastructure

Naturally, IT budgets just like others

method

term

of

hosted

using,

is

often

managing

and

without

major

investment

requiring multiple manual updates and

budgets, are under increasing scrutiny

upgrading software and infrastructure.

continual ‘finessing’ of the system which

by barristers who are keener than ever

Historically,

for

never ends. The progressively more

to ensure value for money.

barristers’ chambers to spend money

complex nature of mobile and exchange

Hosted

on IT infrastructure has been to invest

servers means this way of working is

operate on a simple ‘fixed fee per user’

in in-house staff and systems, requiring

only going to become more complicated

arrangement so that spend is consistent

a large amount of budget to provide the

for chambers. These component parts of

from month to month.

hardware and human resources to run

manually added features, while they are

Maintenance and repair costs shrink

an effective network.

a short term fix, become real headaches

over time to virtually zero because all of

for regular users of the system over

the work is done remotely and most of

time.

it automatically. This means there is no

the

standard

way

As the fiercely competitive legal market evolves (at a faster pace than any other

solution

agreements

usually

extra cost spent on in-house technical

sector) the shift in importance of IT

Creating a suitable IT infrastructure

support

means having to spend money in a

becomes the chambers equivalent of

working on an hourly rate. The perfect

smarter way to get more efficient results.

painting the Forth Bridge. The task

hosted model streamlines the number of

Outdated systems

simply never ends.

suppliers required to operate an entire

Many chambers still operate their IT

It is for this reason many chambers are

Security and automation

with a traditional ‘server’ which usually

switching their IT infrastructure to a

Many IT problems are caused by

or

bills

from

contractors

IT infrastructure to one single entity.

13

the barrister

sporadic software maintenance updating

Automation means that updates and

accurately, on time and profitably.

security, combating viruses and threats.

upgrades to software and infrastructure

The future?

The automation of all these processes

simply happen. There is no wait until

The legal sector is the most dynamic

means there is no room for error and no

‘John from IT’ is back off his holiday to

sector currently in the UK. Changes to

risk to be exposed to.

update things on everybody’s PC, laptop

the way the sector operates such as

Security is tighter with a hosted solution.

and the creaky old server.

the introduction of Alternative Business

Fully resilient systems have no chance

Award-winning chambers who have

Structures and direct engagement of

of getting hacked or compromised and

already

solutions,

barristers means that technology will

are backed up with disaster recovery

such as Number Five Chambers and

continue to play an important role in the

processes to give barristers, clerks and

St Philips Chambers are now safe in

management of chambers during 2013

their client’s peace of mind.

the knowledge they are operating the

and beyond.

Is it really credible in the 21st century to

latest compliant and secure versions of

The increasing numbers of courts with

rely on one or two IT managers to keep

software appropriate for their business.

Wi-Fi technology shows a movement

the practice fully protected, engaged and

And they don’t even need to think about

towards

alert to new developments in barrister’s

it.

importance of barristers being able to

technology?

Mobile

log on to systems from any court in the

Some chambers try to fend off the tide

Barristers and clients are increasingly

country.

of changing technology and attempt to

demanding access to case documentation

End users of legal services are already

make use of stand-alone third party

via mobile devices such as smartphones

demanding access to updates on their

applications. For example, it is all

and tablets.

legal case in much the same way

too common for barristers to transfer

The ability to log on to a system from

they would check their bank account

documents

to

anywhere in the world with an internet

balance online. Case content and will

clients or solicitors using email – or an

connection is revolutionising the way

be distributed, amended, uploaded and

encrypted service such as a DropBox.

chambers do business. This optimisation

shared between different people logged

This reliance on non-integrated software

of the use of barristers' time by giving

on to a system from anywhere in the

incurs extra cost, more risk and is

them access to information any time

world. Client-self-service will be the

ultimately complicating the internal

and from any location, improves the

norm.

processes at chambers.

quality of remote working and gives

Mobile

Hosted products are now integrating

the team more time to dwell on cases

the

third party software such as time

at convenient times which should in

already and we will see an increase in

recording,

diary

theory lead to more winning cases or at

proliferation of these as well as social

management and document services as

the very least an improvement in billing

media integrated systems to support the

well as popular apps already in use

by the introduction of mobile invoicing.

marketing efforts of chambers to law

and even social media applications for

A good example is the introduction of

firms and direct to consumers.

marketing purposes.

time recording apps used by barristers

People buy from people

Secure hosted environments enables

to log every single second spent acting

Even though the marketplace is rapidly

people to log in to retrieve documents

on a case. As well as the efficiency of

evolving and technology is continually

rather than them being transferred via

technology replacing a chaotic system

providing business efficiencies, strong

stand-alone third party applications –

of spreadsheets, notes or hand-written

relationships between people are as

reducing risk and saving time. This

papers it can be used to respond to

important as ever.

means that collaboration with clients is

arguments between parties before cost

People buy from people and barristers

simpler. In the 21st century solicitors,

judges.

have to be equally matched to the genius

expert witnesses, clerks, clients and

The ability to demonstrate transparently

of technology for chambers to truly

advocates should demand the ability

at the click of a button, who and how

thrive and evolve in the 21st century.

to simply and securely access key case

much time has been accumulated on a

documents and exchange information

case, offers the obvious commercial and

through technology.

practical advantage of getting fees paid

through

voice

cyberspace

recognition,

adopted

hosted

mobile

apps

working

specifically

barrister’s

www.irislegal.co.uk

and

the

aimed

marketplace

at

exist

14

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Attitudes: Youth Justice, Education & Prison

By Emily Lanham, third year law student at university of York

T

he Ministry of Justice proposes that there are approximately 10,000 volunteers in the youth justice system1. There's probably no need for me to point out that that's a pretty sizeable number. I am now, one of those 10,000.

I started volunteering because I'm particularly passionate about youth justice as a whole; be that welfare, reform or a general interest in the study of the law. It may have been naive of me to think that most people willing to work with young offenders shared a pretty liberal attitude towards juveniles. At least that illusion didn't last long enough for me to get attached to it.

I don't doubt that many of you reading this have endured some sort of en mass training day, or at least “team-building” days, and to be perfectly honest, this was one of the less painful. Even so, I had not anticipated the enlightening ability of the group exercises. Unsurprisingly, simple debate can easily erupt when it involves children, prison and education.

Some of their responses genuinely shocked me.

After I completed my training, I compiled a short survey to discover whether my experience was perhaps out of the ordinary.1 The survey consisted of a mix of professionals, and students from across all walks of life, all of whom had some experience of working with young people.

Education The question put to us was whether one believed children should remain in education until the age of 18; including vocational colleges.

Results on the training day echoed those of the survey; with a 50/50 split between yes and no. When asked to expand, some said that “it is hard not to see additional qualifications as a good thing”, whilst others stressed that keeping children in education when

they clearly do not want to be there, is detrimental to all involved.

I admit I am one of the dissenters.

Perhaps I am still of an age to remember the “difficult” children in class, but it was not a pleasant experience. To give schools credit, they are extremely diligent in giving extra help to those who need it. Where does that leave those who are not troublemakers? In a rather utilitarian manner; allowing a few to leave school and attempt to conquer the real world, arguably allows those who are in tune with education to further themselves, and get more attention in the classroom. The argument that qualifications are beneficial relies entirely on the student actually sitting there long enough to pass.

I have trouble with the idea that forcing under 18s into an educational environment is “for their own good”.

At 16, you are allowed to marry (with parental consent), and have sexual intercourse2. Both of which involve matters of emotional maturity and impact drastically on the rest of your life.

Yet some feel you should not be trusted with your decision to leave education. I do accept that we don't always make the right choices, but youth is a wonderful thing; there is time to remedy some things.

I have no qualms with ideas that education is a good thing; it is, and as many in the survey pointed out, it can steer you away from harmful substances and bad choices. It is not, however, the only way to make it in life. Vocational training is one thing; but why does it have to be in a classroom setting? Young adults, between the ages of 16 and 18 have a chance in life to do what they really dream of doing. Wherever they end up, there's surely some merit in letting them choose that themselves.

Prison The question asked in the training day was rather vague; but people generally

stated that detaining young people was something that they accepted as necessary. In my survey I wanted to understand why people saw prison as a decent and beneficial option. Overall 60% of my respondents said that they thought that young offenders should be detained in penal institutions. Asking why they thought that, was more revealing.

In the UK we lock away more children than any other European country. In 2006, for example, 2,440 children were in custody; compared to 646 in Germany and 0 in Spain.2 Since then, the numbers have lessened, but the margin is still equally substantial.

Why do we feel that this should be an option for our children? According to the responses of my survey, the majority resent the fact that penal institutions have to exist, but describe them as a drastic and last resort for young offenders that can't be controlled. The numbers suggest that this isn't the case.

How can we be using them only as a last resort, when so many children are entering the criminal justice system in comparison to other countries? It seems unlikely that we simply have more misbehaving under 18s; a third of those incarcerated are done so for nonviolent crimes3.

The sad fact is that once in the system, young offenders are marked for life as criminals. When we are talking about children as young as 10 (rarely, I concede) that's no small punishment.

We are shocked that America commits children to prison for life, without parole. Yet seem happy to commit them to life under public scorn.

My survey concluded that people who had worked with youths saw prison as a deterrent or some kind of justice for the victim. Many practitioners will wince at the mention of victims as justification; our legal system doesn't welcome that concept particularly easily4. It seems

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most of us will accept that to the average person, deterrence is a form of control.

I know I wouldn't want to be locked in a police cell for a night, let alone HMP cells for years.

That is dependent on the acknowledgement that we are talking about “average” individuals. We are not. If a young offender has done something so horrific as to end up in a young offenders institution, his or her background is not going to be average. Offenders, statistically, are still a minority.

In an ideal world, we should be able to address that abnormality in a way that doesn't involve segregation. Yes, I am thinking of an idyllic world here, but the fact is that prison obviously does not work. Criminal lawyers might be out of a job if it did (as one young defendant in Southwark Crown Court once helpfully pointed out to me).

Fear of youth disobedience is not

something new; the Victorian descriptions of “vagabonds” and “artful dodgers” have merely evolved into “chavs” and gang violence5. The media have managed to hype up our fear and resentment of these groups. Except from in the most extreme of cases, these groups have little interest in an innocent bystander, there is normally a reason for violence. The problem is we tar every youth with the same brush. These aren't mindless criminal entities; they are individuals, probably with problems, that need addressing.

Every action has an equal and opposite reaction; how many times must history repeat itself before we admit that we are avoiding finding out what really makes a criminal? It is a difficult world to accept when some who work with these young people, admit they have little faith in their ability to think for themselves, or change their futures for the better.

Emily Lanham, third year law student at university of York; interested in legal

15

writing, youth justice and the bar 1 Please note that only those who gave permission have their answers explicitly included in this piece. The rest remain anonymous and their answers only alluded to in generalities.

2 Rona Epstein and Steve Foster, “Child restraints and human rights: seeking substantive and procedural justice” [2012] 17(1) Coventry Law Journal 83-93 3 Howard League Report (www. howardleague.co.uk) in Rona Epstein and Steve Foster, [2012] 17(1) Coventry Law Journal 83-93 4 Guenael Mettraux, “Victims participation in international criminal law” [2010] 8(1) JICJ, 75 - 78 5 Henry Mayhew, London Labour and the London Poor: A Cyclopaedia of the condition and earnings of those that will work, those that cannot work and those that will not work. Volume 1 (In 4 Vols) (1861-1862) p 468

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The Queen (on the application of John Oldroyd Catt) v The Association of Chief Police Officers of England, Wales and Northern Ireland and The Commissioner of Police for the Metropolis [2013] EWCA Civ 192 - decision dated 14 March 2013

By Katy Reade Senior Lawyer, Equality and Human Rights Commission

T Introduction

he Court of Appeal recently considered the case of Catt v ACPO regarding the powers of the police to collect and retain personal information about members of the public who are attending lawful public demonstrations.1 The case turned on the application of Article 8 of the European Convention on Human Rights, with the Court holding that there had been an interference with the right to respect for private life under Article 8(1), and that the interference was not justified under Article 8(2).

This matter raised significant issues about police monitoring of public protest and the fine balancing act between the State's obligations to ensure the security and safety of its citizens and its obligations to ensure that their human rights are protected. The Equality and Human Rights Commission ('the EHRC') recognises that the police can be expected to watch what takes place at demonstrations that may involve disorderly behaviour and crime and to gather intelligence where it helps them prevent crime and disorder. However, an intervention in the proceedings was considered important because of concern about the human rights implications of the case. At first instance, the court had held that the indefinite retention of information about Mr Catt on the National Domestic Extremism Database did not engage Article 8, and even if it did engage Article 8 it was justified pursuant to 8(2).2

The EHRC, in applying to intervene, argued that the High Court's decision was out of step with the development of the jurisprudence of the European Court of Human Rights. It was also submitted that the High Court was in conflict with the decision of the Supreme Court in R (on the application of GC & C) v The Commissioner of Police of the Metropolis [2011] UKSC 213 and the High Court in R (RMC) v Commissioner of Police of the Metropolis and Secretary of State for the Home Department [2012] EWHC 1681 (Admin), in which the EHRC had also intervened.4 Facts Mr Catt challenged the indefinite retention of data by the Police on the National Domestic Extremism Database relating to his peaceful and lawful attendance at various political protests by 'Smash EDO', a group which stages protests about an American arms company in Brighton. He argued that retaining these data infringed his rights under Article 8 and was a breach of the Data Protection Act. The information about him which the police had stored on the database (potentially for an indefinite period) included his name, his age, his appearance and his history of attending political demonstrations.

A photograph taken of him was also retained, but was destroyed prior to proceedings. The Police took no steps voluntarily to notify Mr Catt of the existence of the database or the storage of the information. Further, Mr Catt had considerable difficulty in (a) finding out whether the database contained information about him, and (b) gaining

access to that information. The database has no statutory foundation but is based on the common law powers of the police to obtain and store information likely to be of assistance in carrying out their duties.

The EHRC's role The EHRC has a duty to encourage and support the development of a society in which there is respect for and protection of each individual's human rights5 and has a long-standing interest in the question of retention of personal information by the state. Apart from our interventions in key cases (mentioned above), the EHRC highlighted its concern about information privacy in its Human Rights Review6, particularly how technological developments and the legal and regulatory systems have left members of the public increasingly at risk of Article 8 breaches in relation to large-scale police databases, despite the positive obligation on the state under Article 8 to protect individuals, including people engaged in peaceful assembly and who have not committed a criminal offence.

In its work on the Human Rights Review, the EHRC identified that whilst the Police rely on information and intelligence to plan for large-scale protest events and to identify the potential for disorder or violence, inappropriate and disproportionate use of surveillance of protestors can violate their right to respect for a private life.

The EHRC's Strategic Litigation Policy 2012-137 prioritises the need for the EHRC to challenge decisions, policies or practices that are significantly

the barrister

detrimental to human rights and/or rights under equality law - based on the scale or severity of adverse impact. One particular issue of concern identified in this policy is the need to assess the lawfulness of policing measures in relation to protests.

The EHRC's submissions The EHRC submitted that: 1) The retention by the state of personal information on a police database will generally constitute an interference with Article 8(1); 2) The legal and policy framework governing the retention of personal information on the database provides inadequate safeguards to satisfy the principle that any interference in Article 8(1) rights must be in accordance with the law; and 3) The indefinite retention of personal data on the database fails to satisfy the strict requirements of proportionality - that is, the interference

is justified as a proportionate response to one of the legitimate aims set out in Article 8(2).

In the EHRC’s view, whether or not a person’s information is used or disclosed by the police, the storage on a state database denies the individual control over their personal information and consequently lessens their ability to protect details about their life, with all the implications that this may entail for their sense of integrity and autonomy.

In particular, the EHRC's submission relied on MM v United Kingdom Kingdom (App No 24029/07, 13 November 2012), where the European Court stated that the police are under a particularly heightened obligation to adhere to clear guidelines in relation to the retention of personal information8; a clear legislative framework for the collection and storage of data is therefore essential, along with legal clarity as to the scope, extent

17

and restrictions on the powers of the police to retain data. It was the EHRC's contention in Catt that these safeguards were not sufficiently incorporated in the rules on the use of the Extremism Database.

The Court of Appeal Decision The Court focused on the collection and retention of data about Mr Catt, rather than on the public nature of his activities at the demonstrations themselves.

The Court agreed that the processing and retention of even publicly available information could constitute a interference with Article 8 rights, especially when the information was subjected to systematic processing and entered on a database that was searchable by reference to specific individuals. The Court accepted the importance to modern policing of detailed intelligence gathering and the need for caution, but did not agree that the information currently held on

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18

the barrister

Mr. Catt could provide any assistance in relation to any of those matters and therefore was not justified pursuant to Article 8(2). Significantly, the Court emphasised that the burden of proving that the interference with Mr. Catt’s Article 8 rights is justified rests on the police, and this had not been successfully discharged.

Since the decision was handed down, the Court has formally declared by Order dated 15 April 2013 that for the Extremism Database to retain the references to Mr Catt that had been disclosed to him, and in a readily searchable form, is unlawful and in breach of the right to respect for his private life. However, the Order did not direct the police to delete this information. As the police are applying to appeal to the Supreme Court, it is still uncertain whether and to what extent the relevant rules governing the operation of the Database will be amended.

Conclusion An essential point arising from this decision is that, even where events take place in public, the recording and retention of information about individuals who are involved can interfere with the right to respect for private life under Article 8 of the European Convention of Human Rights.

Catt highlights the Court's concern about information being retained indefinitely on databases that are searchable by reference to individual names.

In relation to justification, the Court has signalled that it will examine closely both the exact nature of the information retained, and its value for policing purposes. Whether or not the case proceeds to appeal, the ultimate outcome in this case could have significant ramifications for a large number of people whose photos are taken and information about them recorded whilst attending demonstrations, protests and other public events. There is no doubt we are in the midst of a crucial debate about the extent of protection under

Article 8, particularly in a society where increasing volumes of information are collected and retained about each individual.

1 The case of T v Commissioner of Police of the Metropolis and another [2013] EWCA Civ 192 was joined to the proceedings, but the EHRC did not intervene in this case. T had complained to the anti-social behaviour team attached to the housing association which manages the block about persistent and excessive noise emanating from a neighbour's flat over. After some brief verbal exchanges, the neighbour made a complaint about T and reported the matter to the police, alleging that T had made insulting comments about his sexuality. The police attempted to serve T with a 'first instance harassment warning' or 'police information notice' and this was recorded by the Crime Reporting Information System ('CRIS').

T felt that she had been given no opportunity to respond to the allegation, and brought a claim for judicial review seeking an order that the police destroy their copy of the letter and remove from their records all references to it.

The respondent’s policy was to retain police information letters and CRIS reports relating to single allegations of conduct of a kind which, if repeated, could constitute harassment, for a period of twelve years. In the case of CRIS reports that is a consequence of a blanket policy which does not discriminate between serious offences, minor offences and conduct that does not amount to an offence at all.

However, the Court decided that it is difficult to see how the retention of the letter or the CRIS report for a period of more than a year or so at the most could possibly be of any assistance in connection with a prosecution for that offence. The court allowed T's appeal, deciding that the continued retention of the information would have been unnecessary, disproportionate and unjustifiable.

2 The EHRC did not intervene in the

High Court proceedings.

3 GC & C successfully challenged the policy of the Association of Chief Constables of Police (ACPO) of allowing the retention of biometric samples, DNA and fingerprints, for an indefinite period save in exceptional circumstances. The case considered the application in the domestic context of the ECtHR case of Marper v The UK, in which it was decided that the ind efinite retention of the appellants’ data was an interference with their rights to respect for private life protected by article 8 of the ECHR which is not justified under article 8(2).

4 RMC was a middle-aged woman of good character who attended voluntarily at a police station on 20 April 2007 and was arrested on suspicion of an assault occasioning actual bodily harm to a police community support officer who had stopped her riding a pedal cycle on the footway. She was interviewed, fingerprinted and photographed, and DNA samples were taken from her.

The matter was investigated and was referred to the CPS, which decided on 2 May 2007 not to prosecute. Through her solicitors she subsequently sought unsuccessfully to secure the destruction of her fingerprints, DNA samples and photographs. She then brought a successful judicial review claim challenging the retention of all such data.

5 Equality Act 2006 s.3(b).

6 See Human Rights Review (2012) chapter on Article 8 - p.259 following.

7 The policy can be found at the following link: http://www.equalityhumanrights.com/ legal-and-policy/legal-strategy/

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19

The introduction of price-competitive tendering for criminal legal aid services

By Richard Miller, Head of Legal Aid, Law Society

I

f freedom is just another word

what businesses realistically need; a

wears off, practitioners realise that they

for nothing left to lose, then

Government of free markets planning

are also expected to provide Magistrates

criminal lawyers who have

centrally to the nth degree the structure

Court duty solicitor services for free,

read

Legal

of the market they are creating; and

and travel and subsistence costs will

Aid”, will be feeling really free.

“Transforming

a Government committed to choice

no longer be paid separately. They will

We had no illusions as to the

in public services abolishing clients’

have to provide a member of staff to sit

choice.

behind Counsel again. They will have to

pressures on the Ministry of Justice to save money, and yet the proposals still

commit to investing in the IT necessary

came as a shock. The biggest shock

Very often when faced with something as

to engage with the Government’s digital

was the scale of the cuts the Ministry

radical as this, the first reaction is that

strategy. They will have to pay for peer

intends to extract, while still expecting

it cannot be done. Then, as the shock

review.

the lawyers to do even more work than

wears off, practitioners start to think

at present. But it has also been difficult

about how it might in fact be feasible.

The idea is that practitioners should

to absorb a pro-business Government

On this occasion, the reverse seems to be

be able to spread costs over a larger

making a proposal so at odds with

the case. As the shock of the 17.5% cut

volume of work, and thereby generate

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20

the barrister

economies of scale. But small firms

have to be significantly changed or

competitive environment, it is worse

looking at the small print will see that

built from scratch. Staff will have to be

than that. Firms that seek to provide

instead of serving their local town, they

made redundant, moved or recruited.

anything above a minimum threshold of

have to provide services across an entire

Software systems will have to be built,

quality will be at a financial disadvantage

county instead. However you propose

installed and tested. Offices will have to

in any tender round compared with

to achieve that, it requires capital

be purchased or leased. SRA licensing

those offering only the bare minimum.

investment, and ongoing cost to manage

may have to be obtained.

Firms won’t just be encouraged to offer

it. These businesses will also have to

threshold quality only, they will be

fund the significant increase in work

To achieve all that in a year would be

in progress that will result. These extra

challenging. But the MoJ envisages

costs mean this looks like a non-starter

giving firms just three months from

The Law Society believes there is a

for smaller firms.

notification that their bid was successful

bigger problem with the proposal to

to the date of commencement of the new

remove client choice. Clause 27(4)

Larger firms will be little better off. In

service. This is patently unrealistic from

of

each criminal justice area, the MoJ

a business perspective.

Punishment of aOffenders Act 2012

proposes to award a fixed number

economically unable to do anything else.

the

says,

Legal

“An

Aid,

individual

Sentencing who

and

qualifies

of precisely equal contracts. Firms

One of the keys to the Government

under this Part for representation for

will not be able to grow through

being able to deliver its fixed number of

the purposes of criminal proceedings by

running a successful business, as in a

exactly equal contracts is the proposal

virtue of a determination under section

proper market. Instead, they will be

to remove a client’s choice of solicitor.

16 may select any representative or

constrained by the allocation they get

At the moment, a client can choose any

representatives willing to act for the

from Government, and can do no more

solicitor that has a contract with the Legal

individual, subject to regulations under

business and no less. The number and

Aid Agency. Under these proposals, any

subsection (6).”

size of contracts in each area varies,

client entering the system, whether via

and it is not easy to discern the basis on

the police station scheme or later, would

The explanatory note to the bill explains

which these figures have been set. The

not be able to choose their solicitor.

what such regulations may do: “the

impact seems to be that contracts will

Instead, they would have to go through

regulations may limit the choice to a

vary from around £7-800,000 in some

a central allocation system, and would

specified group of providers or may limit

areas, to around £2 million in others.

generally be forced to accept the solicitor

the number of legal representatives who

to whom they were directed.

can act for any individual at any one

Many larger firms are already at or even

time. They may also restrict the right

above the limits set for their area. That

Throughout the last eight years of

of the individual to appoint a new legal

means they would be required to absorb

discussions with the Ministry about

representative in place of one previously

the 17.5% cut without getting the benefit

proposals

chosen.”

of any increase in volume which is

tendering, the Ministry has always

supposed to enable them to withstand it;

accepted that client choice is one of

Jonathan

indeed, in some cases they would have

the

the

unequivocal assurance when questioned

to downsize. The inability to expand and

Government has to drive quality of

about possible restrictions on client

increase volumes means this looks like a

service. If a solicitor can generate

choice. During the committee stage

non-starter for larger firms.

business by delivering excellence to the

of the bill, he said, “In criminal cases,

client, but may lose it by failing to do so,

people will be able to select their own

On top of all of this, it is quite clear

that is a classic market mechanism for

representative, subject to regulations

that the restructuring of this market

ensuring good quality. If a firm knows

in clause 26, which may limit choice in

will take many months to achieve.

that, subject to meeting the minimum

the ways referred to in subsection (6)…

Financing has to be secured. Consortia

threshold of quality, the Government

Our intention is that in criminal cases,

may have to be formed, or mergers

will continue to allocate work to them,

as at the moment, an individual must

undertaken.

that incentive is removed. But in a price-

select a provider with whom the Lord

Business

models

will

few

for

effective

price

competitive

mechanisms

Djanogly

also

gave

an

the barrister

Chancellor has entered into a contract

makes massive cuts within a very short

or other arrangements.”

timeframe. Even if the MoJ accepts the impossibility of its proposal for

In our view, the primary statute does

competitive tendering, we still face

not permit the Government to remove

the prospect, as an alternative, of an

the client’s right of choice in every

unprecedentedly large administrative

single case without exception. Both

cut in the rates. The Law Society issued

the explanatory note and the express

its own consultation paper on 5th April

words of the then Minister are wholly

to get practitioners’ views on what could

inconsistent

to

realistically be done to give them the

interpret the provision so as to permit it.

best chance of surviving such cuts. We

Yet that is what will happen under the

fear that the reality for many firms, at

Government’s proposed scheme.

least as currently structured, is that

with

any

attempt

nothing could enable them to survive Barristers reading this paper might have

such cuts. It is open to debate whether

thought that they dodged a bullet. One

enough of them will remain viable for

case one fee is not being proposed, and

the Government to continue to deliver

advocacy schemes will be maintained

the service it is obliged to provide. It

broadly as they are, albeit subject to

is our hope to secure an outcome that

a significant cut. However, on second

will enable practitioners who wish to

reading, many barristers are losing their

continue providing criminal defence

assurance. This proposal will replace

services to do so, even if not in the same

the existing instructing solicitors with a

sort of business model they are currently

smaller number of organisations, who

in.

will be constrained in almost every way from generating additional income. One

These are difficult times. It is possible

key exception to that is advocacy: these

to identify a number of ways in which a

new businesses will be free to do as much

restructured market for criminal defence

in-house advocacy as they wish, and

services might be able to deliver services

indeed will undoubtedly feel compelled

slightly more cheaply than at present –

to do so. These proposals represent a

although any such restructuring requires

major threat to the independent Bar.

investment which has to be paid for from the fees somehow. But ultimately, there

So where do we go next? This is not

is a price below which it is not possible

about whether we do or don’t like

for anyone to provide the service the

competitive tendering. It is about the

Government is seeking to purchase. On

fact that this proposal is economically

the information currently available to

unworkable and possibly unlawful. It

us, we believe that with this proposal,

is difficult to see any straightforward

the Government has passed that point of

changes the Government could make

no return. And no amount of tinkering

to overcome the difficulties. The whole

with the system of procurement will

model needs to be completely rethought.

solve that fundamental difficulty.

But the Government has no time to rethink it.

None of this changes the fact that the Treasury is demanding that the MoJ

21

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

22

the barrister

Insurer driven small claims court proposals are fundamentally flawed

By Matthew Stockwell, president of the Association of Personal Injury Lawyers (APIL) and Barrister at St John’s Buildings, Liverpool:

T

he Government’s recent

and I am not hopeful there will be much

Government has naively suggested that

consultation ‘Reducing

more to come”.

the court might offer greater assistance

the number and cost of

whiplash

to

unrepresented

parties,

neither

claims’

The commitment among insurers to

judges nor court officials are allowed

has now closed and

deliver their promise to reduce the

to advise parties. Changing the role of

the profession keenly

costs of motoring appears lacklustre at

the Judiciary would inevitably increase

awaits its response. Taken with recent

best. What can be taken as read is that

pressure on already limited resources.

proposals in relation to public funding,

squeezing lawyers out of the system

Anybody with experience acting in

changes to the small claims track limit

will allow insurers to discourage some

proceedings

are likely to severely impact upon access

genuine claims altogether, settle others

parties (however able and well-prepared

to justice for injured people and the

early when the prognosis may be

they may be) will be acutely familiar

future of the independent bar.

uncertain and pay less to injured people

with the potential for delay or, worse

across the board.

still, ineffective hearings. How such

The insurance agenda

involving

unrepresented

changes can be reconciled with the new Litigants in person

In a succession of private meetings with

emphasis on ensuring strict compliance with rules and practice directions is

the Government, the insurance lobby had

Inevitably, the Government’s proposed

difficult to envisage. Is there going to be

suggested that raising the small claims

changes will result in a significant influx

one rule for unrepresented parties and

track limit for personal injury claims

of unrepresented parties in personal

another with those who have instructed

would enable the industry to reduce

injury litigation - lining up at County

lawyers? If so, what would be the legal

costs and pass on savings to consumers

Court desks across England and Wales

basis for doing so and is this actually

in the form of lower motor insurance

with those no longer able to obtain

going to be fair to both sides?

premiums. Many are sceptical about

public funding for other civil and family

whether savings will be passed on to the

disputes. The Bar Council shares this

If not the courts, how about legal

motoring public and insurers have done

prediction and has recently publishing a

advice centres? Well there are two

little more recently to dispel such doubts.

helpful guide on practice and procedure

obvious problems here. Firstly, the

In its response to the House of Commons

for litigants in person. Nobody with

Government’s drastic changes to public

Transport Select Committee's enquiry

recent experience of using the County

funding through LASPO will mean the

into whiplash claims, APIL highlighted

Court can fail to have recognised the

closure of many legal advice centres

that Direct Line had officially stated that

ever-increasing burden on its resources.

and the curtailment of services offered

“the effect of the package of civil justice

These changes threaten to push the

by those which survive. Secondly, these

reforms should at least be ‘net neutral’

civil justice system to breaking point.

organisations have never been equipped

for the group in the medium-term”

At best the time allocated to individual

to routinely offer advice in personal

and that the managing director of LV,

cases will be reduced and listing times

injury claims; there has simply been

John O'Roarke, had reportedly warned

will increase significantly, whilst there

no prior demand with the availability

the public not to expect vastly reduced

will be a negative effect on the already

of effective funding arrangements. Our

premiums as a result of the new fixed

reduced morale of court staff and

fractured, under resourced community

costs regime. In the Law Society Gazette

administrators.

legal advice service will be unable to fill

on 6 March, Mr O'Roarke was quoted

this void.

as saying; “[I expect] a 3% reduction in

Where then will injured people turn to for

premium, but generally we have already

independent advice and support in the

For every potential source of support

seen reductions in premiums of 12%

presentation of their claims? Whilst the

there is seemingly an equal or greater

23

the barrister

threat. In the absence of independent

is likely to reallocate a case to the multi-

profession and diversity. A significant

legal advice, injured people are likely to

track, as is currently the position.

reduction of work for the junior bar will

be placed at a significant disadvantage

compound existing difficulties regarding

when dealing directly with insurers or

There are ways for stakeholders to

funding of the academic and vocational

against them in litigation. For example,

work together to detect and reduce the

stages of training.

independent research has shown that

incidence of fraud. For its part, APIL has

70% of people would be reluctant to

drawn up a carefully considered 10 point

How will the personal injury specialists

bring a claim for whiplash without a

action plan to help eliminate fraud in

of the future ‘cut their teeth’ and to what

solicitor. In 2009, the Financial Services

whiplash cases. However, restricting fair

extent will they be representative of their

Authority found that on average damages

access to the court and to independent

clients or society in terms of sex, age,

increased by 275% after a lawyer was

legal advice is more likely to exacerbate

race or other protected characteristics?

instructed compared to the first offer

low-level motor fraud, while at the same

Perhaps other career pathways will

received from an insurance company.

time causing potential injustice to those

evolve,

If, as a matter of course, injured people

genuinely affected by the negligence of

considered and hasty proposals risk

soon find themselves unrepresented

others.

causing irreversible damage to the

against insurers, the financial incentive for heavy-handed tactics and under

the

Government’s

ill-

administration of justice.

Impact on the Bar

settlement will be significantly increased and will most likely go unchecked.

but

Conclusion Anecdotally, use of counsel in an advisory capacity in cases proceeding

Many of the insurance industry's claims

under the original portal scheme for

in relation to the cost of road traffic

to

liability admitted road traffic accident

accidents simply amount to hackneyed

unscrupulous CMCs who will seek out

cases with a value of up to £10,000 -

and groundless propaganda. If motor

the poorest, least well educated and

the overwhelming majority of personal

insurers are genuinely committed to

vulnerable in society - as they have

injury claims - has been virtually

tackling fraud, they must demonstrate

done with PPI claims – targeting them

non-existent. No doubt the imminent

a greater willingness to work with

with intrusive and aggressive marketing

extension of the portal scheme both

claimant

techniques. Whilst the Ministry of Justice

horizontally and vertically and the

stakeholders to eliminate the problem.

has the power to shut down rogue CMCs

introduction of fixed costs within the

Similarly, if they take their responsibility

following complaint, this sanction will

fast-track will have a similarly negative

to genuine accident victims seriously,

offer little comfort to those injured

effect on the throughput of advisory

they must admit liability early in clear-

people whose rights have already been

work for the junior bar.

cut cases and offer timely rehabilitation

Perhaps people

most are

significantly,

likely

to

fall

injured prey

adversely affected a second time.

representatives

and

other

and make full offers of compensation In traditional common law chambers

at the earliest opportunity. The current

such as my own, the opportunities for

experience of personal injury barristers

advocacy in both family and crime,

acting for both sides is very different.

Proposals in relation to fixed costs and

as part of a traditional pupillage and/

There are opportunities for stakeholders

the raising of the small claims track limit

or junior tenancy, have significantly

to

are often heralded by the Government as

reduced over recent years and are

efficiency of civil justice, but cultivating

necessary to combat fraudulent claims.

likely to be drastically affected by the

a system in which insurers can settle

No explanation or evidence has ever been

Government’s most recent proposals

claims without challenge will do little

offered in support of these claims and

in relation to reform of publicly funded

more than increase the profits of their

the justification is counterintuitive. The

work.

shareholders. The motoring public are

Fraud

small claims track is not geared to deal

work

together

to

improve

the

highly unlikely to see any reduction in

with allegations of fraud or dishonesty

Against

background,

their premiums but, even if a few pounds

and the usual formalities regarding

it

opportunities

might be saved on an annual basis, does

disclosure

evidence

for pupillage and tenancy will be

this come at too high a price for genuine

(upon which subsequent applications

significantly reduced, whilst the current

accident victims?

for committal are usually based) do

financial pressures in the early years

not apply. In reality, if allegations of

of practice increase. In turn, this will

dishonest conduct are made, the court

negatively impact on access to the

and

witness

is

this

unhappy

inevitable

that

24

the barrister

The Tenacity of British Colonial Laws in the Lives of Sexual Minorities in the Commonwealth

By Treva Braun, Legal Director, Human Dignity Trust

I

n 2017, the gay community of

the

persecution

and dependencies. As a result, virtually

England and Wales will be able

they enable have their roots in English

all of the countries of the European

to celebrate 50 years of freedom

law. The UK’s 1861 Offences Against

empires, other than the British, never

from being criminalised for

the Person Act punished sodomy with

imposed criminal sanctions specifically

who they are. The prohibition

ten years to life, abolishing the death

on adult same-sex consensual activity in private3.

discrimination

and

on consensual sexual relations

penalty which had been in place for this

between men in private was repealed through the Sexual Offences Act 19671.

crime from as early as 1533. A more

That timing, however, is an accident of

added to English law via the Criminal

history that comes a few years too late

Law Amendment Act of 1885, making

There is a wide variance in the extent

for many others around the world.

it a misdemeanour, only applicable to

to

men, to engage in any kind of sexual

enforce their criminal provisions and

intimacy with another man, for which

the impacts local lesbian, gay, bisexual

the punishment was imprisonment of up

and transgender (LGBT) people face

to one year with or without hard labour.

in addition to the threat of criminal

THE COLONIAL LEGACY Criminalisation of consensual same-

generic offence of ‘gross indecency’ was

sex acts variously called ‘buggery’, ‘unnatural

intercourse

which

Commonwealth

countries

prosecution.

the

In the 19th century, Britain spread

order of nature’ and ‘gross indecency’

these laws around its colonies, most

In Cameroon, a male university student

occurs in about 80 jurisdictions across

of which had no previous concern

was sentenced in 2011 to three years

the globe. The Commonwealth is front

with homosexuality and indeed some

in prison after sending a text message

and centre in this figure: there are 54

of which openly acknowledged and

to another man saying “I'm very much

Commonwealth countries representing

accepted it. The 20th century repeal of

in love with you”. His conviction and

just over 25 per cent of all countries

these laws in Britain came a few years

sentence were upheld on appeal in

in the world, yet the Commonwealth

after most British colonies had won

December 2012, on the strength of email

represents over 50 per cent of the jurisdictions that criminalise2.

their independence, so the repeal here

admissions to sexual relations with

had no impact or influence in what were

other men. Two women are currently

by then the former colonies. And by

awaiting trial for engaging in sexual

countries

that time, the staunch homophobia that

intimacy, and will be the first-ever

criminalise

Victorian England generated around the

females in Cameroon to be prosecuted

world had been firmly entrenched.

under the provision proscribing ‘sexual

Forty-two (almost

against

IMPACTS

Commonwealth 80

consensual

per same

cent) sex

relations.

In

some countries both women and men

relations between persons of the same

are criminalised, while in many the

In contrast, other colonising nations

sex,’ which carries a sentence of up

laws apply only to men. The severity

either

criminal

to five years in prison. In Grenada, a

of the prescribed punishment varies,

provisions or had much earlier removed

man was convicted in December 2012

from

them from their statute books. Notably,

and sentenced to six years in prison

Singapore to 14 years with or without

Napoleon’s

of

after a trial in which he had no legal

corporal

to

1810 abolished the crime of sodomy,

representation, and another man was

life imprisonment in Sierra Leone,

with various countries then adopting

indicted in January 2013. The Gambia

Tanzania, Uganda, Zambia, Bangladesh,

the

the

was in the spotlight in 2011 when its

Pakistan, Guyana and Barbados.

Netherlands, Belgium, Spain, Portugal,

Western Region Minister ordered the

Scandinavia, Germany, Russia, China

immediate arrest of all homosexuals in

and Japan and their respective colonies

the region.

two

years

imprisonment

punishment

in

Malawi

in

All of these criminal provisions and

never

French

had

French

model

such

Penal

Code

including

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26

the barrister

Many other countries either have stated

research

of

Legislative reform remains elusive in

non-enforcement policies or simply do

homosexuality "both causes and boosts"

most Commonwealth countries. During

not use the criminal provisions, while

the rate of HIV among men who have

their Universal Periodic Review before

still maintaining them on the statue

sex with men (MSM). This is borne out

the UN Human Rights Council, 32 of

books. Ackermann J of the South

by the statistics. In Caribbean countries

the

African Constitutional Court highlighted

where homosexuality is criminalised,

criminalise

the legal fiction of non-enforcement

namely most of the Commonwealth

rejected recommendations to repeal

policies, noting that the provisions

Caribbean countries and none of the

these laws, with four others giving no

themselves “reduce gay men … to … ‘unapprehended felons’…”4.

non-Commonwealth countries, almost

clear response. Only four agreed to

one in four MSM is infected with HIV. In

examine the recommendations, and only two (Nauru and Seychelles) accepted the

that

criminalisation

Commonwealth

countries

homosexuality

that

expressly

regularly

the absence of such laws, the prevalence is only one in 15.5 Similarly, the odds

used by police to harass LGBT people

of HIV infection in black MSM relative

and deny them access to justice. In

to general populations were found to

As a result of this legislative lethargy,

Singapore police warned a man, who

be nearly two times higher in African

the courts are increasingly being used to

reported a theft by a male partner,

countries that criminalise homosexual

have these laws struck out as a breach

under

activity than for those living in countries where it is legal6.

of human rights law, notably the rights

These

criminal

the

laws

Penal

are

Code

provision

outlawing homosexuality, rather than investigating the theft. Others have

recommendations.

to

equality

and

non-discrimination,

privacy and dignity.

At the domestic been

received stern warnings by police about

As an example of why this is so, in

level,

their consensual homosexual activity. In

Kenya where "carnal knowledge against

constitutional challenges in the last 10-

Jamaica, gay men are driven to bank

the order of nature" is criminalised,

15 years in jurisdictions as diverse as

machines by police officers so they

a medical research institute had its

South Africa, India, Fiji, Nepal, Peru,

can pay bribes to avoid prosecution,

HIV

church

the United States and Hong Kong. There

and lesbians reporting rape are told by

leaders claimed that it was providing

is on-going litigation in Belize, Grenada

police they deserved it for living the gay

"counselling services to criminals."

and Singapore, with others in the

work

disrupted

after

‘lifestyle’.

there

have

successful

planning stages.

It is not surprising then that the

Such laws are also used to prohibit LGBT

Commonwealth

people from associating and assembling.

implicated in the global HIV crisis.

was

In February 2012, a government Minister

While the Commonwealth represents

Rights

in Uganda shut down an LGBT advocacy

30 per cent of the world's population,

implementation of the International

workshop, claiming it was ‘promoting

it contains more than 60 per cent of

Covenant on Civil and Political Rights,

and encouraging’ homosexuality which

people living with HIV globally.

leading to the 1994 decision in Toonen v Australia7 that Tasmania’s maintenance

is

particularly

is a criminal offence. A month later in

At the international level, a complaint brought

to

the

Committee,

UN

which

Human monitors

Cameroon, armed police broke up a

Even

have

of criminalisation constituted a breach

planned three-day meeting on HIV and

decriminalised, of course, discrimination

of Australia’s obligation to respect the

sexual minorities.

remains.

Article 17 right to privacy and the Article

in

countries The

1996

that South

African

Constitution was the first in the world

2(1) right to non-discrimination.

The mere fact of criminalisation also

to expressly prohibit discrimination on

provides a license to discriminate in

grounds of sexual orientation, and the

At the regional level, successful cases

employment, housing, healthcare and

Constitutional Court in 1998 struck down

before the European Court of Human

other social services, and incites systemic

the sodomy laws as a violation of the

Rights

hatred, violence and stigmatisation.

Constitution’s human rights guarantees.

Yet homophobia, often violent, remains

Northern Cyprus10 based on the ECHR Article

The ability to prevent the spread of

rampant. For instance, there are reports

8 right to privacy led to the repeal of

HIV is widely recognised to be directly

that at least 500 lesbians become victims

criminal provisions in those countries.

compromised

of so-called ‘corrective rape’ every year.

A case against Turkey in respect of

by

criminalisation.

A

Global Commission on HIV and the Law in 2012 concluded after extensive

against

the Ireland)8,

UK

(regarding Ireland9 and

Northern Cyprus – the last pocket within ROLE OF THE COURTS

the Council of Europe to criminalise – is

the barrister

27

currently before the European Court.

but it is one tool being used by a

Commonwealth Criminal Law (2011) at

Two cases have been lodged before

movement seeking to bring that figure

25-26.

the

on

of 80 per cent of the Commonwealth

4 National Coalition for Gay and Lesbian

Human Rights to challenge Jamaica’s

criminalising homosexuality into the

Equality v Minister for Justice, South

criminalisation of same-sex relations.

same decline that colonialism itself

African Constitutional Court, CCT 11/98

They will be the first-ever cases on

faced so many years ago.

(1998).

Inter-American

Commission

criminalisation of homosexuality in the Inter-American system.

5 UNAIDS, Global Report on the AIDS 1 Though only for men over the age of 21.

Epidemic (2008).

It was over 30 years later, with passage

6

of the Sexual Offences (Amendment)

contextual review of HIV epidemics

Act 2000, that the age of consent was

in black men who have sex with men

British colonialism, imbued as it was

equalised to 16 for both heterosexual

across the African diaspora, Vol. 380,

with

and homosexual intimacy. The final nail

Issue 9839, pp. 411-423 (28 July 2012)

CONCLUSION

Victorian

continues

to

puritanical

govern

the

values, lives

The

Lancet,

Common

roots:

a

of

in the coffin of criminalisation came

7 Communication No. 488/1992, CCPR/

hundreds of thousands of LGBT people

10 years ago when the current Sexual

C/50/D/488/1992 (1994).

around the Commonwealth. As such,

Offences Act 2003 repealed the offence

8

the Commonwealth, as an institution,

of homosexual sex "when more than

Application no. 7525/76 (1981)

remains both significantly implicated in

two persons take part or are present".

9 Norris v Ireland, Application no.

the persecution they face and key to its

2 The others being mainly societies

10581/83 (1988).

eventual eradication.

influenced by the Sharia law of Islam.

10 Modinos v Cyprus, Application no.

3 The Hon. Michael Kirby, The Sodomy

15070/89 (1993)

Litigation is a blunt instrument and

Offence:

cannot guarantee to change attitudes,

Criminal Law Export? 22 Journal of

England’s

Least

Dudgeon

v

United

Kingdom,

Lovely

Tanfield Chambers is pleased to announce that Philip Rainey QC will take over as Head of Chambers with effect from 1 April 2013. Chambers would like to express its appreciation to his predecessor Geraint Jones QC for his many years of dedicated service. Geraint Jones QC continues to practice at Tanfield Chambers.

Members of Chambers

Mr Philip Rainey QC Mr Geraint Jones QC Mr Edward Raw Mr Gavin Merrylees Mr Andrew E.C Thompson Mr Timothy Shuttleworth Mr David Guy Mr Philip Conrath Mr Stephen Monkcom Mr D.A Pears Mr Paul Staddon Mr Mark Dencer Miss Kerstin Boyd Mr Christopher Coney

Mr Simon Cheves Mr Charles Joseph Mr Sebastian Reid Mr Mark Loveday Mr Michael Bailey Mr Christopher Bamford Mr John Buck Mr Michael Buckpitt Mr Christopher Maynard Mr Gerald Wilson Mr Phillip Aliker Mr Stephen Heath Ms Kerry Bretherton Miss Catriona MacLaren

Mr Nicholas Isaac Mr Andrew Butler Mr Robin Powell Mr Stan Gallagher Mr Peter Linstead Miss Michelle Marnham Mr Christopher Heather Mr Robert Bowker Ms Karen Jones Mr Timothy Polli Mr James Fieldsend Mr Daniel Dovar Mr Piers Harrison Ms Martina Murphy

Miss Alejandra Hormaeche Ms Nicola Muir Mr Marc Glover Miss Ellodie Gibbons Miss Charlotte Jewell Mr Adrian Carr Miss Sarah Stanzel Miss Rebecca Cattermole Mr Carl Fain Miss Olivia Murphy Ms Laura Robinson Mr Tom Carpenter-Leitch Mr Tim Hammond Ms Amanda Gourlay

Mr Andrew Sheftel Mr Jonathan Upton Mrs Louise Mankau Miss Estelle Lear Mr Paul Stevenson Miss Gemma de Cordova Mr Michael Walsh Mr Gwyn Evans Ms Sara Lewis Ms Cecily Crampin Mr Niraj Modha Senior Clerk: Mr Kevin Moore

2-5 Warwick Court, London WC1R 5DJ DX: 46 London Chancery Lane Tel: +44 (0) 20 7421 5300 Fax: +44 (0) 20 7421 5333 Email: clerks�tan�ieldchambers.co.uk

28

the barrister

Marketing The Bar ‘Marketing,’ ‘Psychology’ and ‘the Bar’ are three terms not usually uttered in the same sentence. However, as the world moves in a more self aware and promotional direction, it’s becoming clear that barristers can benefit from employing such a trio, if it is done properly.

By Melissa Davis, Managing Director, MD Communications

M

any

barristers

already market

has such a focus on individuals and less

some chambers have seen beyond the

on ‘the business’.

individual and pushed their marketing

to a range of

efforts under the chambers banner. Take

stakeholders

Solicitors have a much less individualist

a stroll through the Inns of Court and you

including

focus and so the broad banner approach

will start to notice branded chambers,

clients

and

is more effective – who hasn’t heard

with signage on the door, albeit subtle. It

solicitors, and even the public via Direct

of Clifford Chance, Allen & Overy etc?

is clear some thought has gone into how

Access, but in the past there has been

– but for the Bar, other than within

the chambers is presented and some

a scattergun element to publicising

the networks of the profession itself,

have gone beyond the traditional list of

services. It might even be fair to

individual

names on a board outside.

say that those barristers who have

known.

chambers

are

less

well

gotten involved have done it without

But is that enough? Is the marketing

an enormous amount of enthusiasm,

Even in the press, law firm spokespeople

reaching the right eyes? Sticking a fancy

almost as if going through the motions.

commentating on a particular issue in

logo on letterheads and the front door

the headlines are referenced by their

of the office doesn’t raise a profile and

There is nothing wrong with taking the

name, area of expertise and the name

draw in new clients, or make a chambers

tried and tested approaches of posting

of their firm. Barristers do get quoted

visible as a standout set of barristers.

successful case portfolios on a chambers’

in the press on similar stories, but their

website or the traditional Christmas

chambers don’t often get a look in.

Why change?

Does it matter?

Barristers do not need to leave the

drinks with regular clients. However, marketing, communications and public relations is a sphere that moves so fast

traditions of the profession behind them

that barristers looking to raise their

It does. The name of a business, product

in order to raise their profile and embrace

profile with the right audiences in 2013

or service is more memorable than a

marketing and public relations, nor do

require a much more targeted and

handful of individual names appearing

they need to abandon the individual and

effective approach.

in the newspapers from time to time.

shelter under the umbrella of a chamber-

Unless an individual has a regular slot

wide communications strategy.

Whilst it’s true that barristers operate

in one of the nationals, chances are

in a very unique business environment,

that the public simply won’t remember

However, the fact that some chambers

lessons can be learned from other

a single person. Brands are more

are stepping up the tempo and turning

sectors and applied to the Bar.

memorable and easier promote than an

to marketing initiatives means there

individual, unless of course that person

is the potential for others to get left

is a celebrity (which few barristers are).

behind. There is stiff competition out

Barristers are different

there, which makes communicating a It’s harder for barristers to embrace

Recognition of this need for a chambers

barrister’s/chambers’ credentials even

profile raising because no other industry

‘brand’ does seem to be sinking in and

more important.

Promotional Feature

the business of being a lawyer a historical perspective

Legal practice, the act of working from a limited volume of

there will be substantial investment by external businesses which

typewritten papers (be they top copies, carbons, or more recently,

will be much more ready to build a business model from scratch,

chemically coated photocopies) and referring to a library, well

unencumbered by any historical understanding of how things have

stocked with case reports and statutes, didn’t materially change for

“always been done”.

almost 100 years. That “cost of creation” - a physical typing of the document, plus one or two carbon copies - was an effective constraint on the volume of material that existed.

opportunities

The gap in efficiency between traditional ways of working and new options is continuing to widen and it has become inevitable that

It has been telex, fax, volume photocopiers and, most importantly,

tradition will have to give way to new practices. The first dispute

the move to the digital data which have caused lawyers to

where Millnet was instructed to process data electronically and

downgrade their libraries of elegantly bound case reports to the use

make it searchable involved spending over 18 months processing

of computers to generate documents. We are now working in a

before allowing those reviewing the material to categorise it by

world where virtually all data is created electronically. The volume of

relevance and issue. It was more efficient than using paper - but

typed and manually written material makes well under 5% of the

nevertheless involved a major act of faith - and a huge amount of

data we process. In addition, the absence of any real cost of

effort and cost. Ten years on and Millnet would complete the same

creation has resulted in an ever increasing volume of electronic

exercise in an afternoon, at a tiny fraction of the original cost.

material being generated during even the simplest of commercial transactions. The result is that the disparity between the way that data is often used and the ways in which it could, more efficiently,

the future

Electronic documents are here to stay and lawyers must learn how to

be used is becoming ever greater. With the power of our servers

work efficiently when it comes to locating, reviewing and exchanging

constantly increasing and the adoption new software, we’re now

electronic information. The rate of change is unprecedented from

able to do things unthinkable even five years ago.

both a regulatory and technology perspective. The opportunities

Catalysts for Change

offered are available to all lawyers, and rising to the challenge will pose the greatest threat.

We are investing in anticipation of legal practice undergoing rapid, disruptive change in the coming years as a result of two main

to discuss any aspect of your approach to addressing the

catalysts.

opportunities presented by electronic data, please contact

Deregulation

The world in which the major supermarkets and financial institutions inhabit is light years away from that inhabited by lawyers who, when deciding on what hourly rates should be charged have regard to “an acceptable return”. This is often ten times greater than the margins generated by such institutions. For that reason it is inevitable that

Millnet at: enquiries@millnet.co.uk or +44 (0)207 422 8850 to arrange a meeting.

30

the barrister

There is also something to be said for

strategies is grounded in psychology and

and they subsequently act in a particular

looking to the future. The Bar has the

has a scientific element to the way they

way.

potential to see ‘super chambers’ emerge

are communicated. PR is moving into

as competition hots up – much like the

new realms of getting the message across

Thousands of lawyers publicly warning

Magic Circle – and chambers that have

and there is nothing to stop barristers

people that they need to review their

a clear, visible presence are more likely

embracing this new approach.

wills otherwise they will end up paying

to attract the best talent further down

more tax has an impact. People might

the line. If you want evidence of how

In the US, and now even in the UK,

even panic. When I ran the press office

well this marketing works for solicitors

political campaign machines are looking

of the Law Society, in a previous life, the

then head into the law schools of UK

at the psychology of language and its

Daily Mail, not usually known for saying

universities and the undergraduates

impact on voters, as well as making the

anything positive about lawyers, was

will bite your hand off for a day’s

targeting of specific communications

happy to give front page coverage to a

work experience at a Allen & Overy or

even more precise, to the point where

solicitors’ campaign to save the man on

Linklaters. There’s no reason why the

tiny districts are targeted with language

the street giving his hard earned cash to

Bar should not be similar with a ‘Magic

tailored to their lives, their interests and

the tax man – because it was relevant

Circle’ of barristers chambers that are

so on.

and targeted.

reputation, but also have mastered the

I wouldn’t expect members of the Bar

The point is that how you word

art of communicating that reputation to

to have the time or the campaign funds

communications

the right audience.

to start carrying out detailed profiling

difference.

of their target audiences, but those

they need you as their counsel will often

audiences are much smaller in number

depend on what language you use in your

than the US electorate so the task is not

marketing and PR, as much as any word

quite as huge.

of mouth recommendation. The fact the

not only filled with talent drawn in by its

What’s new?

Many barristers are already more than aware of Twitter, LinkedIn and other new media. I know this because they

can

make

Convincing

all

the

stakeholders

Chartered Institute of Public Relations Tailored communications

now runs a course on the psychology

make up around 25% of our client base

of PR is evidence that this is a growing

and outside of that I encounter them all

My

the time through my own Twitter and

communications

LinkedIn platforms.

stakeholders, because the needs of those

point

is,

barristers to

can

tailor

area of importance in communications.

different Where to communicate?

stakeholders are different. For example, While any barrister’s or chambers’

communications and marketing to go

Knowing how to communicate is one

communications strategy should include

to tax solicitors, will be very different

thing, where to do it is another.

Twitter etc as part of the communications

to commercial dispute clients, or the

offering, this is not the cutting edge of

future crop of barristers who may join

As well as social media there is of

marketing and many have been using

chambers.

course the medium of the press – but

it for years in numerous different

again the destination needs to be

formats, including @benjaminfgray, @

Targeting is one thing but the type of

carefully considered. Commercial and

McDermottQC, @CastleChambers and @

language used is also important. My

tax lawyers, for example, would kill

tooksprison.

experience of doing PR for lawyers has

to get into the Financial Times, while

taught me that many, by habit, use legal

those focused on private client work will

So, what are the very frontline profile

speak in PR and other communications.

always benefit from publications like the

raising strategies?

Even when barristers are marketing to

Daily Mail or Express.

solicitors that doesn't necessarily help.

The role of psychology The thinking behind these profile raising

Television and radio pack even bigger Studies have shown the type of language

punches. The audiences are so big with

used can stir different feelings in people

broadcast media you will inevitably

the barrister

hit some of the right crowd with

…And so are clients

31

Melissa Davis is Managing Director of MD Communications a social media,

your messaging. On the other hand, Clients can also benefit from learning

marketing and communications agency

matter expert in sector specific media

these

specialising in legal and professional

is more valuable than targeting the

Providing this kind of ‘training’ will not

masses.

individual

only make appreciate the extra service

barristers may get more benefit from

but also create a greater feel of the topic

regular appearances in the insurance

on which you work together, as well as

sector media if their specialism is in that

your role in it.

sometimes

appearing

Chambers

as

and

a

subject

basics

from

their

counsel.

arena. That extends to the legal trade media for when members of the Bar are

More and more chambers are also

reaching out to solicitors.

following the technique of law firms and other professional services providers in

It works both ways. I have seen The Law

conducting research amongst clients.

Society and others use these very pages

There are multiple benefits to this. Clients

in The Barrister to send a message

feel valued - their opinion matters. Their

to, or raise something of interest, to

insights provide a window into the needs

the barristers’ profession. It’s very

of similar, potential clients and what they

deliberate.

are looking for in a legal representative.

This kind of research is also a way of communicating to the client the areas of

Contacts are key

expertise of those asking the questions The tough part is that barristers, who

surveys are often used as disguised form

are sought after legal experts in their

of direct marketing.

fields, are often competing with other much more media-savvy commentators.

These research findings themselves

Nurturing media contacts is therefore

come in handy too. They can be the

vital

individual

basis of news stories in the press and

barristers to ensure they are on the

other communications that generate the

radar of those who can put them in front

profile a chambers wishes to achieve.

for

chambers

and

of a TV camera or into print.

Using modern marketing to stand out There are newer and more innovative techniques emerging all the time as

It's easy to put on paper the ‘how to’

ways of cementing ties with the press.

of raising your game as a chambers. In practice it is much harder to do without

For example, 'Classes' given by legal or

professional communications support

other experts as a free crash course to

and the insight and experience that

journalists on a topic they may know

brings with it. The Bar is modernising,

little about but need to understand – such

becoming more commercial and with it

as pensions - are a good way to meet

there is the need to look at new methods

the kind of press contacts with whom

or ways to develop existing strategies to

ties need to be forged. This environment

make sure a particular chambers and its

offers a benefit to journalists, as well

barristers stand out. Without that there

as identifying the barrister as a ‘go to’

is always a risk that a chambers will

expert in that field.

simply be left behind.

services.

32

the barrister

Tackling Human Trafficking

By Sara Fantoni LLB (KCL), LLM (UNICRI), Non-Practising Barrister (Gray’s Inn, 2012)

R

ecently

human

sexual exploitation, forced labour or

the subsequent other two limbs are

trafficking

has

services, slavery or practices similar

satisfied too. Similarly, in the second

returned in the UK media spotlight1, as

to slavery, servitude or the removal

limb of the definition, it is not necessary

of organs… The consent of a victim of

to prove that the victim was subjected

a study by the Centre

trafficking in persons to the intended

to violence or threat of violence: other

of

Justice

exploitation set forth [above] shall be

forms of coercion which satisfy the

published in March 2013 denounces

Social

irrelevant where any of the means set

legal threshold, which are more of

the Government’s failure to tackle this

forth [above] have been used.”

a psychological nature rather than

complex form of transnational crime.

physical, include the abuse of a position

There are at least 5,000 trafficking

This complex definition seeks to capture

of vulnerability (e.g. an individual who

victims in the UK, according to Home Affairs Committee 2009 figures2.

the chain of trafficking which includes

offers to “help” an orphan). Finally,

the act, the means to carry out the act

exploitation is commonly correlated to

However, due to the hidden nature of

and the purpose of the act. Therefore,

prostitution. In reality, the variety of

the crime and the difficulty in identifying

the definition should be understood as

forms of exploitation is far wider and

its victims, this number is undoubtedly

follows:

includes the exploitation of individuals

an underestimate. It is a form of serious

in cannabis factories, as well as in

organised crime that generates globally an estimated $25 billion profit3 obtained

1)

at the expenses of the most vulnerable

The

act:

recruitment,

otherwise legitimate enterprises such as

transportation, transfer, harbouring or

the textile industry (e.g. where workers

receipt of persons“

are unpaid, paid under the minimum

individuals within society, from orphans

2) The means: “by means of the threat

wage or made to work in unsafe and

to the unemployed.

or use of force or other forms of coercion,

illegal conditions).

of abduction, of fraud, of deception, of

Of course, for human trafficking to

the abuse of power or of a position of

be identified, all three limbs of the

International Provisions The

internationally

“the

recognised

vulnerability or of the giving or receiving

definition must be satisfied. This is the

definition of ‘human trafficking’ can

of payments or benefits to achieve the

most complex aspect since one or more

be found in the Palermo Protocol

consent of a person having control over

stages of the chain of human trafficking

(Protocol to Prevent, Suppress and

another person“

can easily be concealed. The greatest

Punish Trafficking in Persons, especially

3) The purpose: “for the purpose

problem of this form of crime is the

Women and Children) to the Convention

of

shall

difficulty posed in identifying the victims

against Transnational Organised Crime

include, at a minimum, the exploitation

and the crime itself. Often a victim might

(the Protocol entered into force in 2003):

of the prostitution of others or other

even be confused as a perpetrator, since

“Trafficking in persons” shall mean the

forms of sexual exploitation, forced

the police might come across them

recruitment, transportation, transfer,

labour or services, slavery or practices

for the first time in the context of the

harbouring or receipt of persons, by

similar to slavery, servitude or the

commission of a criminal offence, such

means of the threat or use of force or

removal of organs.“

as cultivating cannabis.

of fraud, of deception, of the abuse of

It should be noted that, in each one of

The New European Directive

power or of a position of vulnerability

the three limbs of the definition, the

On 6 April 2013, the European Directive

or

of

elements listed are alternatives to be

2011/36/EU

payments or benefits to achieve the

satisfied. Therefore, contrary to popular

Combating Trafficking in Human Beings

consent of a person having control

belief, a victim of human trafficking does

and Protecting its Victims came into

over another person, for the purpose of

not necessarily need to have ‘travelled’

force in UK. Some of the key changes

exploitation. Exploitation shall include,

or have been ‘transferred’. In fact, the

that this welcome piece of legislation

at a minimum, the exploitation of the

mere recruitment is sufficient to satisfy

imposes on adhering countries are

prostitution of others or other forms of

the first limb of the definition – provided

requirements for/to:

exploitation“.

“Exploitation

other forms of coercion, of abduction,

of

the

giving

or

receiving

on

Preventing

and

33

the barrister

• the establishment of a dedicated

anti-slavery agency, there is a risk that a

guidelines will ensure that trafficking

national

anti-slavery

agency

or

large multi-agency organisation will not

victims obtain the necessary protection

Rapporteur;

run efficiently and will become an entity

during criminal proceedings.

• the establishment of an EU Anti-

where shared responsibility of cases

Trafficking Coordinator;

might become no one’s responsibility.

It is paramount for the UK to work in

• increase public awareness of human

Currently, the national rapporteur is

close cooperation with other EU Member

trafficking;

the

Ministerial

States on raising awareness amongst

• set up special measures for the

Group on Human Trafficking, which is

officials dealing with immigrants, such

protection of victims and, in particular,

chaired by the immigration minister

as those at the UK Border Agency, as

of minors;

and is a governmental body. However, a

well as members of the criminal justice

• the revision of definitions relating to

system including judges that all too

human trafficking offences to cover a

body independent form the government would most likely be more effective5.

broader range of cases, to include the

One of the main criticisms by leading

complex crime. The extremely complex

commission of offences within the UK

charities

patchy

nature of the crime means it must be

territory or by UK nationals outside of

implementation of the Directive is the

tackled by taking a holistic approach

the UK territory;

failure

and from multiple directions to ensure

• the establishment of a system by

which means many children rescued

the

which prosecution and punishment of

from trafficking are then lost by the authorities6. There is still no statutory

prosecution of perpetrators.

defendants later identified as victims of human trafficking may be dropped

protection for trafficking victims in the

1

where it is proven that their commission

UK. The last government introduced the

mar/09/shameful-failure-slavery-

of criminal offences is correlated to their

“National Referral Mechanism” (NRM)

trafficking-uk [accessed on 2 May 2013]

status as human trafficking victims.

to help identify victims of trafficking,

2 “Human Trafficking: UK Responses.”

Inter-Departmental

relating to

appoint

to

UK’s

child

guardians,

often misunderstand the nature of this

protection

of

victims

and

the

http://www.guardian.co.uk/law/2013/

which entitles anyone identified by the

Library Standard Note SN/HA/4324, Home

the

authorities as a potential victim to have

Affairs, 8 March 2013.

a 45 day reflection and recovery period to access support service7. However,

3

All forms of human trafficking are prohibited in the UK under the Coroners

the NRM system is still not adequate,

4 “Human Trafficking: UK Responses.”

and

Sexual

because it places too much emphasis on

Library Standard Note SN/HA/4324, Home

Offences Act 2003 and the Asylum and

the individual’s immigration status and

Affairs, 8 March 2013.

Immigration Act 2004 imposing penalties

no dedicated state agency is responsible

5 “Human Trafficking: UK Responses.”

of up to 14 years’ imprisonment. The

for providing support to the victims.

Library Standard Note SN/HA/4324, Home

Has

the

UK

Implemented

Directive?

Justice

Protections

Act

of

2009,

the

Freedom

Act

2012

http://euobserver.com/justice/119118

[accessed on 2 May 2013]

Affairs, 8 March 2013.

amends the Sexual Offences Act 2003

The Crown Prosecution Service has

6 http://www.independent.co.uk/news/uk/

to modify the geographical extension

home-news/government-failing-to-bring-

of trafficking offences, to ensure that

recently published a new set of guidelines on Human Trafficking8. These highlight

criminalised offences do not only cover

key aspects that prosecutors (but also

human-trafficking-say-charities-8528099.

those with cross-border elements, but

defenders) must be alert to when dealing

html [accessed on 2 May 2013]

also those committed entirely within UK

with suspects who might be victims

7 “Human Trafficking: UK Responses.”

borders.

of human trafficking. The guidelines

Library Standard Note SN/HA/4324, Home

highlight that, if there is clear evidence

Affairs, 8 March 2013.

UK

that the suspect is a victim of human

8 CPS Guideline on Human Trafficking

Human Trafficking Centre (UKHTC),

http://www.cps.gov.uk/legal/h_to_k/

launched in October 2006, which is a

trafficking, it would be in the public interest to discontinue the prosecution9.

multi- agency organisation including

This of course should not create blanket

[accessed on 2 May 2013]

police and officers from SOCA, the UK

immunity on suspects who may be

9 In compliance with Article 8 on non-

Border Agency (UKBA) and the Crown Prosecution Service4. Whilst being a

victims of human trafficking, but should

prosecution of victims, European Directive

only be limited to cases where human

2011/36/EU on Preventing and Combating

step in the right direction towards the

trafficking is the cause of the commission

Trafficking

establishment of a dedicated national

of the criminal offence. Hopefully, these

Protecting its Victims.

The

UK

has

established

the

britain-in-line-with-european-rules-on-

human_trafficking_and_smuggling/

in

Human

Beings

and

34

the barrister

Transforming Legal Aid

By Chris Grayling MP, Secretary of State for Justice and Lord Chancellor

W

e have a justice

the medium term put in place measures

be painless. It could never have been.

system

of

that will reduce the pressures on our

I recognise that, and I understand the

which we can

justice system more broadly. That’s why

frustration and anger out there.

be proud and

we have just announced major reforms

which deserves

designed to improve the rehabilitation of

For the Bar, our main focus has been

its world-wide

offenders, so fewer go back to prison in

on fee levels in the most expensive, long

recognition for impartiality and fairness.

future. That’s a crucial part of reducing

term cases, and on the use of multiple

As part of that system, legal aid helps

future costs and also a recognition that

advocates in the same team. That’s

thousands of people a year to access

if savings are to continue, they have to

where the biggest changes come.

justice and ensure fair outcomes.

come by different routes for the future.

Under the current system, the most

But our legal aid system is the most

But in the short term we have no option

expensive criminal legal aid case paid

expensive

world,

but to continue with our programme

in 2011/12 cost the taxpayer over

far more so than in other European

of cost reduction. We are cutting costs

£8.5million. Under the proposed system

countries

in

the

that

developed

legal

sharply across the prison estate, across

this would be reduced to £6million. The

systems to ours, but also far more costly

have

different

the court system, and in the running

total cost to the taxpayer of just the top 3

than countries that have similar systems

costs of the Department. In all of this

cases paid in 2011/12 was a staggering

to ours. At the same time, legal aid has

legal aid cannot be immune.

£21million. In 2010/11 over £1.5million

sometimes been provided for cases

from the taxpayer's pocket went to

that do not justify it and to those who

My proposals to achieve savings in

just three barristers. The top earning

can afford to pay themselves, which

the criminal legal aid system are

barrister in 2010/11 was paid just over

undermines public confidence in the

underpinned by four basic principles.

£550,000.

scheme.

Under the new proposals

that barrister would receive much less; With changes to advocacy, the

in the region of £370,000. Under these

My predecessor Kenneth Clarke made

•

financial impact needs to fall at the top

proposals the income of the top five legal

important changes to civil legal aid

end of the scale, because I recognise that

aid earning barristers in 2010/11 would

earlier in this Parliament. These changes

the junior bar are not excessively paid.

drop from around £530,000 - to below

will bring the total cost of our system

£400,000 a year.

down by more than £300million a year.

•

Those cuts were difficult and painful

one case one fee route, given the potential

I’m well aware that these figures are

for many who were accustomed to the

implications for the independent bar.

gross, and from them needs to be

I did not want to go down the

status quo. But they were an inevitable

deducted all of the costs associated

part of the difficult changes this country

•

In litigation, change can really

with self-employment – VAT, chambers

is going through.

only come through a reshaping of the

fees, pension costs and so forth. But

sector. Cost savings need to come from

the truth is that in straightened times

process change not quality reduction.

financially, we cannot afford to pay

The truth is that we still face enormous economic challenges. And even after

leading barristers who earn significant

Ken’s changes, we are spending well

•

And change should not be, and

sums from the state at a level that when

over £1.5 billion a year on legal aid.

will not be purely about cost. I will not

net income is taken into account is well

Public spending challenges are set to

create a commercial free for all that

above most of the rest of the public

continue for years.

leads to representation on the cheap.

sector.

There needs to be and will be real quality So no part of what the Ministry of Justice

controls

does is immune from change. We will

process.

have to cut costs in the short term, and in

throughout

the

contracting

None of that means that change will

We have proposed some changes at Crown Court level too, particularly with the introduction of a new taper

35

the barrister

arrangement for longer cases. I know

competition for the delivery of litigation

reforms aimed directly at reducing the

that this is causing particular worry,

services. The fear is that solicitors will

amount of time defence solicitors and

and will consider carefully alternative

simply expand their remit still further

barristers must spend on each case,

suggestions put forward in response to

into the territory of the Bar.

and invited the professions to contribute

the consultation.

further ideas on how we achieve this. The But it’s not these changes that open that

new Criminal Justice Board has agreed

But I also instructed my team to bring

possibility. Solicitor Advocates already

to further work in a number of areas that

forward ideas that would recycle some

exist. Part of the work done in the past

should drive greater efficiency both in

of the savings into the lower end of Bar

by the Bar is already done by solicitors.

how cases are prepared and managed,

incomes. The majority of the Bar are not

And had I chosen simply to cut litigation

and reduce the costly errors such as

earning huge amounts. For advocates

fees across the board exactly the same

unnecessary adjournments. This should

with a fee income of £50,000, or less,

issue would have arisen.

lead to greater efficiencies in particular

from legal aid fees, our aim is that most

for defence practitioners in the Crown

should be at least as well off and a

I am incredibly proud of this country’s

Court, enabling them to deliver their

substantial proportion better off.

legal profession which is, in my view,

services more cost effectively.

the best in the world. However, I need We proposed to do this via an increase

the solicitors profession to reorganise

Given the reforms to civil legal aid which

in the fee paid for guilty pleas, since

itself in a way that brings down its costs,

have just been implemented, we accept

that is an area where the junior Bar

and delivers me the services I need at

that there is little room for making

do much of the work. But some people

a lower price. That will mean mergers

further substantial cost reductions in

have told me that we may not have got

and partnerships to bring down back

that area. We are therefore proposing

the mechanisms right to do this. That’s

office costs and operate much more

some limited changes to fees, to ensure,

why we are carrying out a genuine

efficiently. It does not mean giant players

where there are discrepancies, that

consultation, and why I am personally in

will simply take over - our proposals

fees paid are fair and consistent with

regular discussions with the Bar Council

enable providers of all shapes and

those for similar work. We also propose

and the circuit leaders. Better ideas for

sizes to participate and will maintain

reducing the fixed representation fees

this are welcome.

a competitive market. The tendering

paid to solicitors in public family law

model I’ve proposed will maintain a

cases from April 2014, to better ensure

competitive market.

value for money and reflect the expected

Those opposed to the proposed changes have accused me of ignoring justice, of

reduction

in

work

resulting

from

not understanding the importance of my

But it also offers an opportunity to write

implementation of the Family Justice

office and of wrecking an internationally-

into contracts safeguards for the Bar.

Review reforms. And we propose to

recognised quality system. They are

Like rules that ensure when law firms

reduce fees paid to experts in both civil

wrong.

owe money to barristers they do not sit

and criminal cases, to bring them into

on it for months or even years. Or which

closer alignment with fees currently paid

We could have just cut fees again across

prevent solicitors acting in an anti-

by the prosecution in criminal cases.

the board for everyone. It would have

competitive way if a chambers decides

delivered savings quickly and without

to bid for litigation work. Or quality

I have no illusions about how challenging

my department going through complex

rules that ensure properly qualified

the reforms are for the profession and

processes of change.

and experienced representation. I will

for the industry. I am also very open to

be inviting the Law Society and the Bar

suggestions about how to improve them.

But it would have totally missed the

Council to make recommendations to

But the fundamentals remain absolute.

point. The Junior Bar, in particular,

me about how to achieve this and quality

Additional savings must be found in the

are dealing with the challenge of self

will be an essential component of any

short term. Within those parameters, all

employment

successful bid and any future contract.

sensible ideas are welcome and will be

and

all

the

financial

pressures of the moment. I have tried

studied carefully.

to bear that in mind when proposing

These reforms would complement the

difficult changes.

work we are already undertaking with

By Chris Grayling MP, Secretary of State

wider criminal justice system partners

for Justice and Lord Chancellor

One of the biggest areas of concern to

to ensure that cases are resolved more

the Bar is, I know, the introduction of

quickly and cheaply. We are prioritising

36

the barrister

E-Disclosure: The quest for the smoking gun

By Damian Murphy, Barrister, Enterprise Chambers, Newcastle-upon-Tyne

D

into

common

isclosure has always

the fields most affected by the changes

education

had the allure (or

is disclosure and in particular the

e-disclosure, so that they are aware of

terror – it is a matter

disclosure

the most effective tools available for

of

(usually

perspective)

of

of

electronic

known

as

documents

edisclosure

or

“the smoking gun”,

e-disclosure).

a

on disclosure (implemented by the

phrase

coinage

Watergate Scandal.

brought

during

the

There are new rules

replacement of old CPR 31.5).

There

of

all

participants

in

e-disclosure and how they should be used…”

The basics of edisclosure

The less formal

are new rules on costs management

An

the communication (for Richard Nixon

(CPR 3.12-18) although certain types

four key tasks running roughly in

it was something that he said that had

of case are exempt such as cases in the

chronological order.

been recorded by the internal White

Chancery Division where the value of

House taping system) the more likely it

the claim exceeds £2m or cases in the

becomes that the mask will slip.

Admiralty Division or the Commercial

The disclosure of electronic documents

Court.

and in particular emails is, in essence,

has been amended with the addition of

the quest for the smoking gun.

As

“at a proportionate cost” to focus the

Morgan J. explained in Digicel (St Lucia)

minds of the judiciary and litigators on

Ltd v Cable & Wireless PLC [2008]

cost control.

Practice Direction 31B provides rules

EWHC 2522 (Ch):

Depending on the date of issue / date of

and guidance for each of these four

“It is well known that people say things

the first case management conference

tasks. Practice Direction 31B applies to

in e-mails which they would not dream

(and certain other exceptions based on

all multi-track proceedings commenced

of putting into a letter or a minute or

the value of the claim and the issuing

on or after 1 October 2010. Its purpose

a formal note...it may only take one

Court), these new rules intertwine with

is to “to encourage and assist parties

revealing statement, perhaps in an

Practice Direction 31B – Disclosure of

to reach agreement” in relation to

email, to show clearly what people really

Electronic Documents.

edisclosure “in a proportionate and

comprises

Figure 2: edisclosure key tasks

cost-effective manner”.

The Civil Procedure Rules, especially relatively

exercise

The overriding objective itself

thought…” the

edisclosure

recently

Figure 1: The Relevant Rules

A number of general principles are set

implemented

out in Practice Direction 31B including

Practice Direction 31B – Disclosure of

most importantly in the light of the

Electronic Documents, define the nature

changes to the overriding objective:

of this quest, which is not without limits

•

whether in terms of time or in terms of

in order to ensure that document

scope. Morgan J. stated in Digicel:

management activities are undertaken

“the rules do not require that no stone

efficiently and effectively;

be left unturned. This may mean that

•

a relevant document, even a “smoking

in a manner which gives effect to the

gun” is not found. This attitude is justified

overriding objective;

by considerations of proportionality”.

•

Technology

Disclosure

Disclosure

should

should

of

be

be

used

given

Electronic

Civil litigators stare over an altered

As the flow diagram above shows, there

Documents which are of no relevance to

landscape for any such quest following

is one constant for multi-track trials –

the proceedings may place an excessive

a raft of recent changes to the Civil

edisclosure.

burden in time and cost on the party to

Procedure

implementing,

edisclosure was highlighted by Lord

whom disclosure is given.

to a greater or lesser extent, the

Justice Jackson as far back as his Review

The significance of these particular

recommendations

of Civil Litigation Costs: Preliminary

principles is that they explicitly tie

Jackson following his forensic review

Report of May 2009:

edisclosure to the overriding objective

of the costs of civil litigation.

“There is clearly a need for better

(in its new form since 1 April 2013) and

Rules of

Lord

Justice One of

The need to understand

the barrister

37

identify two elements which can critically

party is required to make a reasonable

proportionate cost. Defining the list of

impact on costs and are therefore likely

search when giving standard disclosure.

custodians is at the heart of the Harvest

to increase in prominence as the reforms

Oddly that rule (tied as it is to standard

step and will require careful analysis of

bed in. On the one hand technology can

disclosure) has not been amended

the nature and structure of the client’s

significantly save costs.

On the other

even though under new CPR 31.5 it is

business against the backdrop of the

hand disclosing too much (often the

possible (and probably encouraged) that

issues in the claim.

default position for a lawyer faced with a

the Court should consider alternatives

The other main question, the answer to

disclosure exercise) will increase costs.

to standard disclosure such as, for

which defines the ambit of the Harvest,

Harvest

example,

is the sources of data.

This is the location and collection of

Presumably if one of these alternative

whilst obtaining data from the sales

the electronic documents. This activity

disclosure

the

team’s laptops may be ruled out on the

needs to start well in advance of the first

requirement will remain (implicitly or

grounds of proportionality of cost, it

case management conference because,

better perhaps by incorporation into the

may be that the sales team will remain

under

order) that a reasonable search must be

as custodians because their emails are

parties’ preparation for the first CMC

carried out.

held on a central server, the documents

must include discussion of:

What is reasonable will depend on many

on which can be extracted relatively

• the use of technology in the management

factors, a host of which are set out in

simply and cheaply.

of Electronic Documents and conduct of

paragraphs 20-21 of Practice Direction

the proceedings (paragraph 8)

31B.

Process

• disclosure of Electronic Documents

For example, imagine a client with a

Once the Harvest from the custodians

(paragraph 9) including:

geographically disparate sales force,

has been completed (and quite possibly

o categories of documents, computer

moving around a great deal, whose

while it is still going on), the Process step

systems, media and storage devices and

laptops

disclosable

needs to begin. This is the step where

document retention policies

documents.

Simply waiting for each

technology can be most effectively used

o

salesperson to return to a central point

to save costs and deal with disclosure

under CPR 31.7

where an IT technician could extract

efficiently. The Process step is where the

o

tools and techniques to reduce the

the data from the laptop might take too

volume of documents from the Harvest

cost and burden including date ranges,

long or indeed never happen. A visit to

is reduced to a volume of documents

keywords,

Practice

Direction

31B,

the

the scope of a reasonable search

tools,

regimes

might

is

disclosure. adopted,

contain

For example,

duplicate

each salesperson will be needed by an

that will actually be reviewed.

documents, data sampling, privilege and

IT technician in order to “image” (i.e.

In order to try to ensure that an effective

a staged approach to disclosure

take a copy of all of the contents) of the

sub-set of reviewable documents is

o preservation of Electronic Documents

hard drive. This might involve external

obtained, the two main parameters used

o exchange of lists and the fields to be

consultants if the client’s IT department

to sieve the Harvest are keywords and

provided

does not have the resources. It might

the setting of date ranges.

o format for inspection

involve

replacement

A good set of keywords can reduce

o charges / cost sharing.

laptop having to be made available to

the volume of the Harvest significantly

Furthermore, there is a duty (under

the salesperson while the imaging takes

whilst hardly impacting on the chance

paragraph 7) on the party’s legal

place. The cost of that element of the

of

representatives to notify their clients “as

harvest can be measured against the

missed. The sooner the keywords are

soon as litigation is contemplated” of the

likelihood of truly relevant or “hot”

first defined (against the ticking clock

need to preserve disclosable documents

documents being on the laptops of the

of the first CMC) the better. Defining a

including electronic documents.

The

sales team and the balance might tip

proposed set of keywords needs careful

Questionnaire

against such laptops being within the

discussions with the client and a deep

which accompanies Practice Direction

harvest even though that means that the

understanding of the issues in the

31B (which if the parties opt to use

chance of obtaining all the disclosable

case. The effectiveness of the proposed

must be accompanied by a statement

documents is lessened to some (possibly

keywords will probably need to be tested

of truth) requires the client / his or her

statistically significant) extent.

- otherwise how can the other side or

legal representative to state if and when

The above example is one where the set

the judge make a reasoned response to

an instruction to preserve electronic

of custodians (i.e. the people within the

the proposal? Since cooperation lies at

documents was given.

client’s organisation whose documents

the heart of Practice Direction 31B, the

The touchstone for the Harvest is the

will be harvested) is defined by reference

initial set of keywords is only a proposal

requirement under CPR 31.7 that a

to the question of reasonableness and

for consideration by the other side.

Electronic

software

issue-based

Documents

some

form

of

a

disclosable

document

being

38

the barrister

There will probably be various iterations

As a result of the Jackson Reforms (in

approach to applications to vary a

of the keywords (as feedback is received

particular the changes to the overriding

budget or seek costs where the budget

from the other side).

objective) more care is needed than ever

has been exceeded.

Similarly (and usually less contentiously)

before to ensure that during the review,

The costs budget precedent H, included

the date range can radically reduce the

the reviewers adopt a tight approach

within the new Practice Direction 3E –

volume of documents in the Harvest.

to disclosability. The test for standard

Costs Management, requires a figure to

If issues in the claim only date back

disclosure does not have the effect that

be budgeted for disclosure.

to January 2010 then a large chunk of

every document in some vague way

which qualifies for cost budgeting must

documents pre-dating January 2010 can

connected with the subject-matter of

by default comply with the edisclosure

be sieved out by setting the start of the

the litigation has to be disclosed.

A

provisions of Practice Direction 31B

date range to 1 January 2010. The end

document only needs to be disclosed if

since it will be a multi-track case.

date can be equally effective as a filter of

it is relied upon or it adversely affects

On many multi-track cases the most

documents that are almost certainly not

the client’s case / another party’s case or

significant cost element within the

going to be disclosable.

supports another party’s case.

disclosure process will be the disclosure

There are a number of technology

of electronic documents.

Any case

This means

providers who can provide solutions

Disclose

a lawyer faced with the costs budget

extending across the whole range of

After the Review stage, comes the

precedent (or advising on it) can only

the Harvest and the Process steps. For

Disclose stage. Practice Direction 31B

complete the disclosure figure with

example, you may want a hosting service

sets out guidance on how the disclosable

any degree of confidence if there is a

(i.e. a place where the documents that

documents should be provided to the

deep understanding of the edisclosure

have passed through the Process stage

other side. Perhaps most importantly is

component of the claim (and its likely

and are ready for review can be stored

the concept of equality in that electronic

cost).

so that they can be accessed remotely

documents should be made available

for review). You may want assistance

for inspection in a form allowing the

Damian Murphy

in the Harvest or in the running of

receiving party the same ability to

www.edisclosurelaw.com

keywords or setting of date ranges. It

access, search, review and display the

Enterprise Chambers

is difficult to know which provider is

documents as the party giving disclosure.

65 Quayside,

right for you but independent advice is

If your client is on the receiving end of

Newcastle-upon-Tyne,

available and might be well worth the

documents that are not in a searchable

investment since once you have selected

format then the rules provide a means

a technology solution it will be difficult

to equalise the position and reduce the

and expensive to change.

costs that may be incurred because searching is not available.

Review The documents that have passed through

Conclusion

the filters of the Process will then need

Over recent years there has been

to be reviewed in order to determine

a steady increase in the number of

if they are disclosable.

lawyers who have some understanding

Generally

this task is something with which

of edisclosure.

solicitors are much more familiar than

will almost certainly require both sides

barristers. Some firms will be geared

of the profession quickly and vastly

up for disclosure review to be carried

to improve their edisclosure expertise

out in-house, others may use external

particularly when a case comes under

solutions.

the new costs management provisions

Depending on the volume

The Jackson Reforms

of documents and the time available,

and a costs budget is set.

it may be that paralegals will need to

As the Master of the Rolls explained

be drafted in to assist with the review.

in his lecture on 22 March 2013 at

Hence, as with all things edisclosure, the

the District Judges’ Annual Seminar,

sooner the details are sketched out the

those commentators who think the

better because plans can be put in place

amended Civil Procedure Rules “will

to deal with, say, temporary increases in

not be applied robustly are wrong”.

staffing for the purpose of the review.

Practitioners can expect a hardline

Birnie, AJM 1-4 2012:Page template.qxd

25/04/2012

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Who’s to blame if a jury doesn’t understand its function?

By Temi Ogunye, Mock Trials Project Officer, Citizenship Foundation

M

uch has been said and written about the fact that the jury in Vicky Pryce’s trial for perverting the course of justice was discharged on the basis that they would not be able to come to a majority verdict. In particular, much attention has been paid to the fact that the jury presented the judge with a list of 10 questions which Mr. Justice Sweeney said belied “absolutely fundamental deficits in understanding”.

The publication of these questions, the dismissal of the jury and the subsequent need for a re-trial (which has since resulted in a conviction) has even led some to the drastic conclusion that the jury system should be abolished. After all, magistrates and judges may be just as likely to convict the guilty and acquit the innocent – and they do so without the complication and expense of a jury trial.

In my opinion, this response is unwarranted. Not simply because cases like this are extraordinarily rare, but, more importantly, because the reasoning underlying the conclusion reduces the case for the jury trial to its ability to deliver the right result.

That is, the extent to which it can ensure that those genuinely guilty of crimes are convicted while those who are innocent are not. The tendency of any aspect of the criminal justice system to ‘track’ justice in this way is, of course, a very important consideration, but it is certainly not the only one.

Another significant feature of the jury trial is the fact that it gives citizens a stake in the decision-making process.

In this sense, the jury system has a similar justification to the democratic system: it is not just important that the procedure delivers the correct answer; neither system can guarantee that and, in any case, people will often disagree.

In such a context, it is also crucial that all citizens are able to participate in making that decision. This is simply to say that both the democratic and jury procedure have intrinsic as well as instrumental value.

The Vicky Pryce case also led to some rather sneering mockery in the media concerning the apparent ignorance

of the jurors and elementary nature of their questions. Again, this seems unfair and unwarranted: for one thing, perhaps the questions were not all as ignorant or elementary as they seemed.

Take the much ridiculed question: “Can you define what is reasonable doubt?”. To which the judge responded (rather unhelpfully, I think), “doubt that is reasonable”, adding “[t]hese are ordinary English words”. But I suspect the thinking behind this question was that, when asked to shoulder the immense responsibility associated with judging the guilt or innocence of a fellow citizen, it is quite difficult to put your finger on exactly what “reasonable” amounts to.

If so, it is not so much that the jury did not know what the word meant, but more that they quite accurately perceived “reasonable” as a somewhat ambiguous term at the best of times, imbued with the ideas of fittingness and good judgement. Therefore, the jury's problem was not with understanding English but with exercising good judgement.

I imagine that replacing the requirement to be “beyond reasonable doubt” with the demand to be “sure” is no help either, and is simply to elide all of the genuine complexities just mentioned. To be “sure” of something is, presumably, to be confident and comfortable that all of the remaining doubts on the matter are not “reasonable” (because doubts will remain, of course). The kind of doubt that is reasonable will differ from case to case. Making the distinctions between different cases requires the kind of judgement that can often be hard to muster, and will sometimes generate a great sense of responsibility on the part of the individuals involved.

It is entirely proper that a juror should feel this sense of responsibility when performing his or her role. Indeed, the more general point that the Vicky Pryce case reveals is the profundity of the juror’s role in our society. Not many things are as serious as deciding the guilt or innocence of a fellow citizen, with the possibility that they may lose their liberty. And the range and number of questions from the jury in the Vicky Pryce case, however elementary some might seem, indicate that they were

keenly aware of this seriousness.

So why is more effort not put into developing good jurors? If we believe that the office of juror is important and that all adult citizens are potential jurors, surely we must put more effort into ensuring they are able to perform the role effectively. In particular, this means educating young people before they are eligible for jury service.

One crucial thing to bear in mind is that the judgement required by jury trials is the kind of thing that you learn by doing. You cannot simply be taught good judgement in a lesson: it is the kind of thing that you acquire and develop by observing and being asked to judge many different cases on many different occasions. In this sense, good judgement is a virtue associated with a certain kind of character, and is to a large extent developed through habit: the doing, and doing, and doing again of certain activities until they become second nature.

How can we develop this kind of character in our young people?

One way is to introduce them to the difficult judgements involved in the legal process through the Citizenship Foundation’s Mock Trial Competitions.

The Magistrates’ Court Mock Trial and Bar National Mock Trial Competitions involve teams of students, aged 12-14 and 15-18 respectively, battling out a defense or prosecution for a specially written case. This helps to develop young people’s analytical, public speaking and team working skills. Just as importantly, it requires them constantly to weigh up competing reasons in favour of different positions. I believe this the kind of exercise is necessary for developing good judgement.

Through these Mock Trial Competitions and through our Lawyers in Schools programme, the Citizenship Foundation is determined to help young people access the legal knowledge and understanding that they need to develop as active and effective citizens.

It is all of society’s responsibility to ensure that young people have this knowledge and understanding. If they don’t, we will only have ourselves to blame.

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