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
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p.8
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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.
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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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Free installation on all Internet lines for Barrister’s Chambers
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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abandoned now and replaced by a
09/05/2013 16:50
determination that (in the words of the Who's classic song of 1969) 'we won't
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
the barrister
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
the barrister
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/
the barrister
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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