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the barrister

#35

ESSENTIAL READING FOR BARRISTERS

Est. 1999

11th January 2008 - 19th March 2008 HILARY TERM ISSUE

www.barristermagazine.com

ISSN 1468-926X

Raising the Bar: the importance of quality The issue of quality assurance has become one of the most important issues in professional regulation. Clients’ expectations are changing.

Consumers are more willing to challenge poor service and have a greater tendency to question professional opinion. They want to know whether their lawyer is competent at what he or she does. In this article we seek to outline the Bar Standards Board’s (BSB) commitment to quality assurance and to explain why it is a priority.

We will also describe the way in which the BSB proposes to address this question and how it fits with other initiatives that are being carried on by other bodies.

Barristers have a vital role in the justice system.

Courts rely on barristers to be up to date in their knowledge of the law and to be competent advocates. Clients rely on the advice and services that they receive from barrister because it can affect their rights, liberty, family and financial position.

The BSB must ensure in the public interest that barristers are performing to a consistently high standard.

Research that the BSB has undertaken makes it clear that most clients and solicitors rate very highly the service that they obtain from MARK STOBBS the Bar. But this Director of the Bar is not a reason for Standards Board complacency. Nor does the BSB consider that the old view that the market p.38 sorts out the best performers is neces-

2008 Bar chairman sets out visions for barristers to compete in reformed legal services market Timothy Dutton QC, who took over as Bar Council Chairman on 1 January, set out his agenda for the Bar in his inaugural speech to the 2007 Bar Council, by calling for barristers to compete in the reformed legal services market.

He said that regulation of the profession in the new legislative climate would create opportunities for the Bar, at home and abroad: “In 2008 I want every member of the profession to know the important fact; that the Bar Council works in their interests across all ranges of discipline. A number of steps will be taken to strengthen ties and to ensure better communication to the profession of what we are doing.

These will bind together Circuits, Specialist Bar Associations, the Bar Council and individual barristers with stronger lines of communication and reporting, maximising our use of new technology in pursuit of this.

“My job is to promote the Bar and our system not just at home but internationally. All of us are operating in an international market with Eng-

lish law as an attractive option in commercial disputes. In criminal law there is an increasingly international aspect to the work, and in family also. I intend to promote the values and skills of the Bar as advocates, arbitrators and mediators abroad.”

The Legal Services Act 2007 would also present an opportunity to regulate advocacy more widely: “I have little doubt, as it becomes possible for advocates to choose by whom they are regulated, that the Bar Council (with the BSB functioning independently in the decisions it makes under Section 29 of the Legal Services Act 2007) will become the preferred regulator of barristers and many senior solicitor advocates. We have a history of skilled regulation of advocacy through regulating the Bar. That regulation has enjoyed public confidence and has received repeated praise from the Ombudsman. We are cheaper than the Solicitors Regulation Authority – by a massive degree. Our voice is p.6 strongly heard and respected in Parliament, the press and wider public. Why

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DNA ON TRIAL The Government recently consulted on proposals to expand police powers further, by allowing police to take DNA from those arrested for non-recordable offences, which would include, for example, littering and minor traffic offences. It is our view that this is disproportionate to the aims of identifying a person and of confirming whether or not a person was at a crime scene.

By Professor Sir Bob Hepple QC, FBA, of Blackstone Chambers, Chairman of the Nuffield Council on Bioethics

10

PERSONAL MITIGATION This study examined the role of personal mitigation in sentencing in the Crown Court. The topic is important because decisions about mitigating and aggravating factors actually define the detail of any sentencing framework grounded in proportionality. It is the ways in which sentencing practice deviates from the principle that the punishment should fit the crime that constitute the interesting penological questions.

By Dr Jessica Jacobson and Professor Mike Hough

29

CPD: HAVE WE BEEN HOODWINK? WHY CPD NEEDS REFORM AND LESS REGULATION Many barristers were taken a bit by surprise when the implications of the Access To Justice Act hit home to the mass of our members and that regulatory dinosaur called ‘Continuous Professional Development’ (CPD) rose its “ugly” head - as far as some, mainly older, members were concerned.

By Phillip Taylor MBE, Abbey and Richmond Chambers

News p.18 Beyond naming and shaming p.19 Welcome for Court of Appeal result Editor: Nigel Simmonds 0870 766 2715 email: info@barristermagazine.com Publishers: Media Management Corporation Ltd Publishing Director: Derek Payne Design and Production: Alan Pritchard Cambridge Printing Park Tel: 01223 423000

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the barrister

03

DNA on trial

By Professor Sir Bob Hepple QC, FBA, of Blackstone Chambers, Chairman of the Nuffield Council on Bioethics s readers of this magazine

A

tise in law, genetics, philosophy and social sci-

must be justified by the state, and evidence is

will know, bioinformation

ence. As part of the inquiry, the Group held a

needed to show that it is proportionate to the

evidence is highly influ-

public consultation.. The responses revealed

need to fight crime.

ential in determining the

a wide range of views, from those who whole-

progress and outcome of a

heartedly welcomed the expansion of forensic

criminal prosecution. Posi-

databases, to those who viewed the increase

And research in Australia has found not only

The Council published its conclusions in a re-

problems can occur with deliberate or acci-

that cases with DNA evidence are more likely

port, The forensic use of bioinformation: eth-

dental contamination of crime scene samples,

to reach court, but also that it assumes great

ical issues, in September 2007. It discusses

misinterpretation of mixed samples (those

strength in influencing jury decisions, with

issues surrounding the police use and stor-

originating from more than one person), and

juries 33 times more likely to convict where

age of DNA, the scientific robustness of DNA

mistaken interpretation of partial profiles.

prosecutors produced DNA evidence.

profiling, the use of bioinformation in court,

Our recommendations regarding the use of

and governance of forensic science services

DNA in the criminal justice system are de-

in the UK.

signed to reduce the risks of mistaken identi-

tive matching of a fingerprint or DNA sample

in police powers with deep suspicion.

can persuade many defendants to plead guilty.

The focus of public concern, however, has

Scientific reliability The science and technology of DNA profiling is increasingly robust and reliable. However,

been on the use of bioinformation earlier in

fication resulting from (relatively rare) cases

the criminal justice system – on police pow-

Although fingerprints are more commonly

of flawed science, and the (more frequent)

ers to take DNA and store both the samples

used by police, the taking and retention of

failure of experts to present the scientific

themselves and the resultant DNA profiles. In

DNA is seen as far more sensitive because

evidence.in ways that can be properly under-

England and Wales, DNA can be taken, with-

of the additional information can be derived

stood by legal professionals and juries.

out consent, from any person arrested for a

from a person’s DNA. For this reason, par-

recordable offence. The samples are kept and

ticular attention is paid in the report to the

the DNA profiles are stored permanently on

forensic use of DNA.

The use of DNA in criminal investigation

by far the largest forensic DNA database in

Some of the Council’s conclusions and recom-

Collecting DNA

the world per capita, with its 4 million sam-

mendations are summarised below.

the National DNA Database. The UK now has

ples representing six per cent of the popula-

The Government recently consulted on pro-

tion.

Ethical values and human rights

There is no doubt that DNA evidence is an

The protection of the public from criminal ac-

ed for non-recordable offences, which would

extremely valuable tool for detecting and

tivities is a primary obligation of the state. It

include, for example, littering and minor traf-

prosecuting offenders. In 2005–2006, DNA

is also necessary to protect certain fundamen-

fic offences. It is our view that this is dispro-

samples from suspects or volunteers were

tal ethical values, such as liberty, autonomy,

portionate to the aims of identifying a person

matched with around 50,000 samples found

privacy, informed consent and equality. The

and of confirming whether or not a person

at crime scenes. The crime detection rate in-

Working Group broadly endorsed a rights-

was at a crime scene. Suspicion of involve-

creases from 26 percent to 40 percent when

based approach, which both recognised the

ment in a minor offence does not justify the

DNA evidence is available.

importance to human beings of respect for

taking of bioinformation without consent.

posals to expand police powers further, by allowing police to take DNA from those arrest-

their individual liberty, autonomy and privacy, However, the establishment of the National

and the need, in appropriate circumstances,

We would like to see the police instead put

DNA Database and subsequent extensions

to restrict these rights either in the general

more resources into the collection of DNA

to police powers were effected without any

interest or to protect the rights of others.

from crime scenes. At present, fewer than 20

meaningful public debate. It was for this rea-

percent of crime scenes are forensically ex-

son that the Nuffield Council on Bioethics, an

The principle of ‘proportionality’ is at the

independent body, decided that a critical ex-

heart of the recommendations in the report.

amination of the subject was needed.

This means that any interference with legally

amined.

Retaining DNA

enforceable human rights, such as the right to The Council appointed a Working Group in

a fair trial, the right to respect for private and

The police can permanently store DNA on the

2006, which included members with exper-

family life, and the right to equal treatment,

National DNA Database even if the individual

04

the barrister

is later found to be innocent. There are per-

terpreted within the particular circumstances

sonal implications for these individuals, such

of the case, and not represented as providing

as an increased chance of being involved in

definitive evidence of guilt.

a criminal investigation, anxiety about being

A population-wide DNA database?

Some believe that taking the DNA of everyone at birth to build a population-wide forensic

associated with a ‘criminal’ database, and

Previous miscarriages of justice have high-

database would assist the police whilst also

loss of privacy.

lighted the problem of non-disclosure of

removing problems of discrimination. Howev-

evidence to the defence. During the pre-trial

er, this would be hugely expensive and would

The number of profiles on the DNA Database

stages, in order that a defendant has the op-

have only a small impact on public safety. The

has doubled in recent years, yet the number

portunity to challenge a fingerprint or DNA

intrusion of privacy incurred would therefore

of crimes solved where DNA evidence played

match, or its interpretation, it is vital that all

be disproportionate to any possible benefits

a role has stayed more or less the same.

DNA and fingerprint evidence is disclosed

to society. For these reasons, we are against

Some believe that this is because the people

in a timely manner to both the defence and

the establishment of a population-wide foren-

now being added to the database are unlikely

prosecution.

sic DNA database at the current time.

There are serious doubts about the use of

Governance and ethical oversight

to commit the type of crimes for which DNA evidence is relevant.

statistics in criminal proceedings. We found We recommend that the police should only be

that scientific evidence, and the accompany-

The current legislative regulatory structure

allowed to keep the DNA of people who are

ing statistical data, may not (yet) be properly

for the collection and retention of forensic

convicted of a crime. The exception would be

understood by non-experts involved in crimi-

bioinformation is piecemeal and patchy. We

people charged with serious violent or sexual

nal proceedings, such as jurors, or even bar-

recommend that there should be a statutory

offences, whose DNA could be kept for up to

risters, solicitors and judges. For example,

basis for the regulation of forensic databases,

five years. These changes would bring the

the ‘prosecutor’s fallacy’ has compromised

which should include oversight of research

law in England, Wales and Northern Ireland

the use of DNA evidence for a fair trial. This

and other access requests.

into line with that in Scotland.

fallacy suggests that the rarity of a profile is interchangeable with the probability that the

The Council also suggests that an independent

defendant is innocent (for example the rarity

tribunal should be set up to oversee requests

of a one in a million match produces the false

by individuals to remove their DNA from the

Biological samples and DNA profiles can

conclusion that the chance of the defendant

Database, and that safeguards should be put

only be taken and retained from witnesses,

being innocent is one in a million).

in place regarding access to the Database by

Volunteers

victims and volunteers if they give their con-

international law enforcement agencies.

sent. However, once consent is given, it can-

We recommend that legal professionals

not be later withdrawn. We recommend that

should acquire a minimum understanding of

Further information about the report The fo-

volunteers should be able to have their DNA

statistics with regard to DNA evidence. Infor-

rensic use of bioinformation: ethical issues is

removed from the National DNA Database

mation should also be made available to jury

available at www.nuffieldbioethics.org

at any time without having to give a reason.

members about the capabilities and limita-

Ideally, volunteers’ DNA should not be stored

tions of DNA evidence.

at all beyond the conclusion of the relevant case.

Other uses of the DNA Database: ethnic inferencing

Children When DNA is collected from individuals, There are around 750,000 under-18s on the

the arresting officers allocate them to one

National DNA Database. The United Nations

of seven broad ethnic groups. This informa-

Convention on the Rights of the Child re-

tion has been used in research and now fo-

quires that special attention be given to chil-

rensic analysts can tell the police the likely

dren in the legal system, including opportu-

ethnic group of a DNA sample collected from

nities for rehabilitation. We recommend that

a crime scene. The police may use this to nar-

there should be a presumption in favour of

row down their pool of suspects. However,

removing DNA taken from children from the

the practice of assigning a ‘racial type’ to in-

Database, if requested, unless there is a good

dividuals is subjective and inconsistent, and

reason, for example, if it was a very serious

genetic research does not support the idea

offence or there is a serious risk of reoffend-

that humans can be classified by appearance

ing..

into a limited number of ‘races’. We recommend that ‘ethnic inferences’ should not be

DNA evidence in court

routinely sought, and they should be used with great caution.

It is vital that DNA evidence is properly in-

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

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A4 Concepts.indd 3

3/9/2007 11:47:18 AM

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go elsewhere?”

p.1

Mr Dutton said that:

“British Justice is still held in high regard around the world. That is why we must oppose any lowering of standards by those involved in the system - solicitors, barristers, judges, police, CPS, other agencies.

We must also resist any attacks on or lack of investment in the system. The public will only know that something has gone wrong long after mistakes are made.”

A good example of this was the McCann case: “Despite the awful circumstances, I was heartened to hear public demands for good old British Justice, during the recent press coverage of the disturbing Madeleine McCann case. What was being sought was the methodical approach of our police, our prosecutors, our barristers. There was reprehensible reporting of innuendo outside of official process. This jurisdiction would have provided a well-adjudicated process, under which evidence is carefully tested and the issues presented to an impartial jury.”

He went on to show his support for binding the legal profession as a whole: “One of my principal aims for the year is to strengthen the bonds that bind us together as a profession. We are a profession of 11,500 self employed and 3,500 employed barristers. When I was called, we numbered in total about 5,000. The solicitors’ profession has increased by similar proportions up from about 45,000 with practising certificates when I started, to about 120,000 with them now. There is a clear need within our society for the expert help, which lawyers and barristers in particular can offer.”

Turning to promoting the work of the Bar, Mr Dutton said: “There is a further sense in which I will be promoting the Bar – both here and abroad.

Barristers are the leading-edge problem-solvers in the law: if you have a difficult point of Chancery Law you seek advice from a specialist Chancery barrister. If you are charged with a criminal offence, you should be seeking the advice from and representation by a specialist criminal barrister. The reason why you go to such practitioners for advice is that they are able accurately and expertly to predict, in the light of the facts and the law, how a court or tribunal will rule in a case. The knowledge and skill which comes from the Bar’s work at the end of the litigation process is what is needed before any such process

gets under way. Barristers are best placed to anticipate the outcome, and therefore advise on the appropriate response.

“So I intend loudly to proclaim our expertise here and around the world. Too often one finds that a barrister has not been instructed, or instructed early enough, or that costs have been wasted on fruitless enquiries because there is a simple point, which determines the case.”

Speaking on the solicitors providing advocacy services: “The comparative attraction of “advocacy” to some firms of solicitors, as a service that they themselves might offer, may be causing them not to instruct barristers until errors have been made by inadequate in-house handling of work. I shall be working with the Law Society to ensure that professional standards are never compromised in the way that clients are supported by law firms.”

Turning to questions of whether or not the Bar could survive as a referral profession: “We need to remind ourselves of the reasons for the referral model. The reason for the referral barrister model is that advocacy is of itself a specialist skill, and requires the practitioner to concentrate only upon it, and the advisory and drafting work relating to it.

This requires that work be referred to him.

“The skill is specialist and requires concentration upon and repeated practice of its core elements. The more you dilute the skill by undertaking office admin, personnel management etc, the less likely you will make the correct prediction for cases or conduct them in the best way possible for your clients.”

Mr Dutton then addressed the issue of the ‘cab rank’ rule: “I have no doubt at all that English barristers following the cab rank rule are demonstrably more independent minded in court than their fused counterparts in other jurisdictions. I have worked in both systems and I have seen a palpable difference.”

“I am confident that, in the private sector, provision by a largely specialist referral profession of advocates will be the model of delivery for the next 5, 10 or even 20 years by the Legal Services Act, however barristers or their sets of chambers ultimately decide to organise themselves.”

Turning to broader threats and how they relate they work alongside the justice system: “Meanwhile, we live in a world where there

are terrorist threats, and difficult terrorist trials to prosecute and to defend. These cases need the best advocates to prosecute and to defend. I am concerned that High Costs Criminal Cases should not be bedevilled by a flawed procurement scheme On the relationship between the Bar and the CPS: “The DPP wants in-house advocacy capacity for the CPS, but also wants and needs work to be undertaken by the referral Bar. There is no reason why a suitably qualified employed barrister should not undertake advocacy for his employer. The days of protectionism have long gone. What matters is that we get the balance right in the interests of the public.”

Entry to the profession would continue to be a key theme: “You will have read the excellent report by Lord Neuberger published on 27th November 2007 to acclaim. The Bar Council will discuss this report in January 2008 (this month).

I urge you to do everything you can to endorse and support the recommendations.

I welcome it. Soon, the last vestiges of the perception that the Bar is the preserve of the privileged will be driven out.”

The Bar Council would also be considering its internal mechanisms: “Also this year we shall have two debates on our own governance arrangements. One in January 2008 on a member’s proposal about more elected representatives, and another in March 2008 to discuss Sir Paul Kennedy’s recommendations made in the Kennedy report for the Bar Council. As I have said, I am already taking steps to strengthen the numbers of elected representatives on committees and to improve communication with the Bar. I think the Bar Council under the Kennedy arrangements will improve. We will need to debate this.”

The Bar was also working to contribute to the Government’s work on Governance: “The Bar has some of the world’s leading constitutional law experts, and our contribution to proposed constitutional reforms is invaluable and demonstrates that we have the public interest at heart, and that we have the expertise to help on issues of importance.”

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Personal mitigation1

By Dr Jessica Jacobson and Professor Mike Hough

T

the

followed by a short sentencing exercise in

ing scenarios, and to rate the significance of

role of personal mitigation

which the respondents were asked about the

different sorts of mitigating factors attached

in sentencing in the Crown

weight they would accord to a number of al-

to each. They were in agreement about the

Court. The topic is impor-

ternative mitigating factors attached to three

importance of some forms of personal mitiga-

tant

different sentencing scenarios.

tion. For example, most said that they would

his

study

examined

because

decisions

about mitigating and aggra-

vating factors actually define the detail of any

attach a great deal of importance to the fact

Key findings

sentencing framework grounded in propor-

that an offender convicted assault occasioning actual bodily harm was clinically depressed

tionality. It is the ways in which sentencing

The term ‘mitigation’ is used to refer to any

at the time of the offence; and only one would

practice deviates from the principle that the

aspect of a case that reduces the severity of

give a burglar much credit for the fact that he

punishment should fit the crime that consti-

the sentence passed. ‘Personal mitigation’ re-

had had a difficult childhood.

tute the interesting penological questions.

fers to factors relating to the offender rather than the offence. Personal mitigation takes

Other factors produced inconsistent respons-

The topic is not simply of academic inter-

many forms, for example relating to:

es. Half said that they would place a lot of

est, however. Our sentencing framework has

•

weight on support for the offender offered

shifted its centre of gravity from just deserts

acter, productive life, deprived background);

by the victim’s family in a case of causing

to risk-based sentencing – but the ‘rebalanc-

•

the offender’s circumstances at the

death by dangerous driving; but almost half

ing’ that this has involved could unbalance

time of the offence (e.g. financial pressures,

disagreed. Most would also take considerable

the framework. This is because all the em-

psychiatric problems, intellectual limitations,

account of a burglar’s commitment to enter

phasis in the new risk-based provisions is on

immaturity);

a drug treatment programme, but seven out

the sentencing of high-risk cases. It is perfect-

•

of 40 said that this should have minimal im-

ly proper for politicians to decide that in the

prosecution (e.g. remorse, acts of repara-

interests of public protection some categories

tion, addressing the problems that led to the

of offender should get heavier sentences than

crime, cooperation with the police);

their offence actually warrants. But if they do

•

so, it makes both penological and fiscal sense

prospects (e.g. family responsibilities, sup-

The sentencing framework introduced by the

to allow sentencers to deviate from propor-

portive partner, capacity to address problems

2003 Criminal Justice Act has shifted sen-

tionality not only in high risk cases, but in

underlying the criminal behaviour).

tencing policy some way from that embedded

the offender’s past (e.g. good char-

the response to the offence and

pact.

Policy shifts and sentencers’ responses

the offender’s present and future

in the 1991 Criminal Justice Act. The formal

those where risks are low. Greater attention to personal mitigation could thus help con-

Our observation of sentences being passed

position is that proportionality to the offence

tain our burgeoning prison population.

shows that personal mitigation plays an im-

remains the guiding principle of sentencing.

portant and largely unrecognised part in the

However, new risk-based preventative sen-

sentencing decision. Judges cited at least

tencing measures introduced by the recent

one factor of personal mitigation as relevant

Act could turn out to be of great importance.

The study involved observation of sentenc-

to the sentence in just under half of the 162

These include provisions relating to the sen-

ing in open court and one-to-one interviews

cases observed in the study. Personal mitiga-

tencing of offenders who are deemed ‘dan-

with sentencers. It was carried out across five

tion can be the decisive factor in choosing a

gerous’. ‘Dangerous’ offenders can be subject

Crown Court centres located in London, and

community penalty in preference to impris-

to life imprisonment, extended sentences or

in the South-East, Yorkshire and the Humber

onment. In just under a third of the 127 cases

imprisonment for public protection. The Act

and West Midlands regions. We observed a to-

where the judge made the role of mitigation

requires the court to assess an adult offender

tal of 132 cases involving 162 defendants and

explicit, personal mitigation was a major

as ‘dangerous’ if he has committed a ‘speci-

52 sentencers. In most cases we observed the

– usually the major - factor pulling the sen-

fied’ violent or sexual offence and has a previ-

prosecution’s account of the facts of the case,

tence back from immediate custody. In just

ous conviction for such an offence – unless the

the plea in mitigation by the defence coun-

over a quarter of the 127 cases, mitigation in-

court believes it unreasonable to do so. The

sel and the passing of sentence by the judge.

cluding personal factors resulted in a shorter

lists of ‘specified’ violent and sexual offences

We conducted interviews with 40 sentencers,

custodial sentence.

are extensive; hence a significant proportion

The study

including each court’s resident judge. The

of offenders are potentially encompassed by

interviews comprised a series of open-ended

The judges and recorders whom we inter-

these provisions. The 2003 Criminal Justice

questions about sentencing and mitigation,

viewed were asked to consider three sentenc-

Act also directs sentencers to treat previous

the barrister

11

convictions as aggravating factors, whereas

further offending - relating to remorse and

established sentencing practice was to treat a

attempts to make reparation, the offender’s

up with ‘soft’ treatment of criminals.

lack of previous convictions as mitigation.

circumstances, or steps taken towards reha-

There is certainly evidence to show that at

bilitation;

one level, a majority of the public feel that

Recent developments in sentencing policy

•

Those that indicate particular sen-

judges are out of touch, and believe that sen-

were discussed during interviews. Some sen-

sibility to punishment, such as the strain of

tences are too lenient. However, this cynicism

tencers expressed strong concerns about the

prosecution, the loss of reputation and stand-

and frustration appears to be a function of

curtailment of judicial discretion, for example

ing or the fact that the offender is unusually

the limited and inaccurate information that

in relation to the provisions for risk-based

poorly equipped to handle a prison sentence;

people have about sentencing. When asked

preventative sentencing. They tended to think

•

Factors that call for clemency, such

to ‘sentence’ specific cases, members of the

that legislation would never be able to take

as the victim’s support for the offender, family

public give responses which are often softer

account of the full range of circumstances of

responsibilities and the ‘collateral damage’

than judicial practice. In other words, polls

offenders coming before them, and that man-

that imprisonment would inflict on relatives,

may indicate that people want tougher sen-

datory sentences and similar statutory provi-

or the social contribution made by the offend-

tences; when given the chance to reflect on

sions risked driving the humanity and justice

er.

the issues, however, they are likely to support

out of sentencing.

judges’ views about the importance of indiIt would be possible – and desirable – to ar-

vidualised sentencing. If this is indeed the

Sentencers were asked about the relationship

ticulate a set of principles that should apply to

case, it should be possible to reach a broad

between risk assessment and the assessment

the various forms of personal mitigation. The

consensus on the key principles underpin-

of mitigatory factors. There was a range of

task falls most obviously to the Sentencing

ning personal mitigation. In order to achieve

responses. Some thought that the process of

Guidelines Council (SGC), supported by the

this consensus, however, there is a need for

assessing risk and the process of assessing

Sentencing Advisory Panel. Topics on which

political leadership that persuades the pub-

mitigation involve two separate sets of con-

guidance would be helpful include:

lic there is value – both moral and fiscal – in

siderations. Others thought that the two proc-

principles of penal parsimony, and that jus-

esses run in parallel and feed each into other.

•

Whether and why securing or re-

Low risk can be a factor in mitigation and/or

taining employment should be regarded as a

vice versa. Similarly, high risk may be associ-

mitigating factor;

ated with a lack of mitigation. Others thought

•

that the two processes were in tension, and

exclusion should be regarded as mitigating

often yielded conflicting conclusions.

factors, and whether advantage should be re-

Whether disadvantage and social

garded as an aggravating factor.

The study’s implications

•

Whether and why family and child-

tice and toughness are not synonyms.

Dr Jessica Jacobson is a freelance researcher and writer, specialising in the fields of policing and crime prevention. She has previously worked for the Home Office Policing and Reducing Crime Unit

care responsibilities should be treated as mitThere is a clear case for structuring judicial

igating factors, and whether fathers should

discretion as it relates to personal mitiga-

be treated differently from mothers;

tion. The argument is persuasive that judi-

•

cial discretion enables sentencers to retain

particular punishments should be taken into

the humanity in sentencing. By implication,

account, by analogy to the means test applied

the extensive scope for personal mitigation

in unit fine systems;

is something to be valued rather than dis-

•

carded. However, the study has shown that

stances the prospect of rehabilitation, e.g.

there is plenty of room for idiosyncratic deci-

through drug treatment, can over-ride the

sions on mitigation, and it seems wrong that

principle of proportionate punishment;

judges should apply conflicting principles in

•

their decisions about mitigation.

a) where there is a plea of not guilty, and b)

Whether offender ‘sensibility’ to

To what extent and in what circum-

The scope for personal mitigation

where the offence is so serious as to make Our analysis has shown that there are at least

custody inevitable.

four types of factor that sentencers take into account in personal mitigation:

Politicians at present are much readier to promote risk-based preventative sentencing

Those that indicate reduced culpa-

than to argue the case for personal mitiga-

bility, such as youth or mental health prob-

tion. They tend to assume that the public

lems, pressing need, previous good character

have little time for judges’ claims about sen-

and exceptional disadvantage;

tencing the individual. Generally, the tone of

•

•

Those that indicate limited risk of

political debate assumes a public that is fed

Professor Mike Hough is Director of the Institute for Criminal Policy Research Kings College. He joined the School of Law in 2003, bringing with him the research unit that he set up at South Bank University in 1996.

ICPR now has a staff of around 15, carrying out policy research for central and local government and for independent funders. It is one of the major criminological research centres in Britain. He was previously Professor of Social Policy at South Bank University, and before that Deputy Director of the Home Office’s Research and Planning Unit.

1 This study was funded by the Esmée Fairbairn Foundation. A copy of the full report is at http://www.prisonreformtrust.org.uk/temp/ mitigationdistributionspcopy.pdf

12

the barrister

CDS Direct The basic safeguards for those in custody which were introduced in 1984 by the Police and Criminal Evidence Act (PACE) are something that many of us working in criminal defence take for granted.

However, these protections have not always existed, and recent Government proposals make their future look somewhat shaky.

By Richard Miller, Legal Aid Manager, Law Society Introduction

S

ection 58 was introduced on the recommendation of the Royal Commission on Criminal Procedure, and established basic safeguards and protections for those detained at police stations, giving them the right to consult a solicitor in private at any time. It took a serious miscarriage of justice – the Confait case – to prompt this realisation of the importance of the provision of access to legal advice from a solicitor to those in custody1.

‘CDS Direct’ In January 2008, the Legal Services Commission intends to expand the ‘CDS Direct’ telephone advice scheme, which is designed to save £6 million per year, or just three per cent of annual expenditure on police station advice. The Home Office has recently consulted on changes to PACE Code C that will be required in order for the expansion to go ahead2.

CDS Direct has been piloted since October 2005, and provides telephone advice to people detained in the Police Station. It is restricted to cases where a person has been: • • •

•

detained for a non-imprisonable offence, arrested for failing to appear in court arrested on suspicion of driv ing with excess alcohol (failure to provide a specimen, driving whilst unfit/drunk in charge of a motor vehicle), or detained in relation to breach of bail conditions.

The largest of the organisations selected to provide the CDS Direct service after January 2008 is a non-solicitor agency – Bostalls - which the Law Society understands has employed an unknown number of solicitors to supervise the accredited representatives who will provide the advice direct to the public.

Bostalls has recently applied for and been granted a waiver by the Solicitors’ Regulatory Authority from Rule 12.01(1)(f). The waiver permits in-house solicitors to provide legal services other than to their employer or as permitted by rule133.

Concerns have been expressed by the Law Society that this arrangement represents a pre-emption of the development of alternative business structures (ABS), which will be set up under the Legal Services Act 2007. The service would be provided by a commercial organisation that is wholly unregulated, even though a limited number of employees of the organisation may be regulated. Until the necessary regulatory regime to support the development of ABSs has been put in place, there will be significant risks involved in the provision of legal advice by an organisation run and almost entirely staffed by non-solicitors.

Own Client work The expansion of CDS Direct heralds a fundamental and worrying erosion of the link between solicitors and their clients, with the inclusion in CDS Direct of ‘Own Client’ advice for the offences listed above. In other words, a client’s request to speak to their own solicitor in one of the specified cases will be declined and will be routed to a CDS Direct adviser instead4.

A client’s right to choose their own solicitor is a fundamental and important one. Even the LSC acknowledges the importance of client choice in helping to maintain quality of service. Solicitors have built up relationships with clients often going back over many years, and the numerous benefits to cases being dealt with by a solicitor with previous knowledge of the client will be lost if this proposal goes ahead.

Private clients Another aspect of the proposed expansion is that all requests for publicly funded advice

will be routed through the Defence Solicitor Call Centre (DSCC), but that requests for privately funded advice will continue to be passed to the solicitor by the police.

Whilst the Commission asserts that such requests will ‘remain unaffected’, this is in fact unlikely to be the case. Under the proposed new system, the police will have to ascertain first of all whether the client wishes to pay privately, before they know whether they should phone the client’s solicitor or not. Code C of PACE includes amendments that were specifically aimed at ensuring that suspects knew that legal advice in the police station was free. The proposed scheme is likely to discourage suspects from seeking legal advice in particular because, depending on how the question about payment is put to suspects, many may believe that legal advice is dependent on payment.

There has been no guidance produced as to what the custody officer is to do if the suspect indicates that they do not know whether they can afford to pay privately. The effect of the proposed changes is to remove the client’s opportunity to negotiate a fee with their solicitor, or even to speak to the solicitor to ascertain what the fee is likely to be, and what part of the case may be covered by the fee.

There will also be cases where a solicitor may wish to provide pro bono advice to a client in the police station, or when a third party is paying for the advice. There is nothing in the proposed scheme which provides for this.

Finally, and perhaps most significantly, if the call centre cannot get hold of the nominated solicitor, the duty solicitor will be sent instead. Because of changes to the criminal contract, the client will then be unable to change to their own solicitor throughout the duration of the investigation, even if that lasts many months. For the LSC to introduce such a significant interference with a client’s choice of solicitor on the back of what purports to be a mere technical administrative change, and with Parliament having had no input into the decision, seems extraordinary.

the barrister

Section 58 Recent weeks have seen a flurry of questions flying around regarding the structure of CDS Direct, and its relationship with the requirement in Section 58 of PACE, that any person detained by the police should have the right to consult “a solicitor”. Who is the solicitor who has conduct of a matter on behalf of the client, when the solicitor has not spoken to the client? Does the solicitor discharge his/ her professional responsibilities merely by being available should an unqualified clerk decide to refer the case up? And is this issue affected at all by the supervising solicitor being an employee in an unregulated nonsolicitor organisation rather than being in a regulated firm of solicitors?

From the information provided to the Society so far, the relationship between the accredited representatives providing the advice under the CDS Direct scheme and any supervising solicitor(s) is unclear; in particular any lines of accountability for the advice provided by the CDS Direct representative.

For the arrangements under CDS Direct to satisfy Section 58 of PACE, provision must be

made for detainees to have access to advice from a solicitor should they so request. On paper, the arrangements appear to meet this requirement, but the Society has concerns about whether the theoretical safeguards are present in practice. If and to the extent that the service is provided by unregulated commercial providers, there is no independent means of verification.

Conclusion The knock-on effects of what at first sight appears to be merely an extension of the existing system for telephone advice in the police station may have profound constitutional implications. There is a serious risk that many detained persons may be denied their right to legal advice, and the protection for detained people introduced by the Police and Criminal Evidence Act will be significantly undermined.

PACE was introduced in order to safeguard the rights of detainees to access legal advice.

By involving the police in discussions about the funding of the suspect’s advice, and by denying suspects their choice of solicitor on the basis of pure chance as to whether a Gov-

13

ernment bureaucracy can contact a named individual within a short period of time, these proposals are in danger of undermining the principles on which PACE was founded.

1In the Confait case, three people were wrongly convicted of murder after they were pressured to confess by the police, in the absence of any access to advice from a lawyer.

2The Law Society’s response to the Home Office consultation can be accessed at: http://www.lawsociety.org.uk/influencinglaw/policyinresponse/view=article. law?DOCUMENTID=367494 3Rule 13.07 permits solicitors employed by a commercial organisation to provide telephone legal advice to enquirers provided that the advice comprises telephone advice only, together with a follow-up letter to the enquirer, if necessary.

4From January 2008 this will initially be in 3 areas – Greater Manchester; West Midlands; West Yorkshire. After 3 months it will be expanded to the rest of the country.

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the barrister

Corporate Manslaughter and Corporate Homicide Act 2007: “Same same or new new”

By Gerard Forlin, barrister, 2-3 Grays Inn Square

A

fter more than a decade

situations. With the advent of the Act, it is

These provisions will therefore make it far

of the Corporate Man-

highly likely that such organisations will now

easier to prosecute deaths in the future as

slaughter

be realistically in the telescopic sights of the

when compared with trying to find a Direct-

prosecution agencies after April 2008.

ing Mind who is guilty of manslaugher.

and

Corpo-

rate Homicide Act 2007 (the Act) finally received Royal Assent on 26 July

2007. It will be brought into force by second-

In theory, this Act will not change the law Section I (1) of the Act states:

ary legislation on 6 April 2008.

are in any event increasingly being impris“An organisation to which this Section applies

The new Justice Minister, Maria Eagle, stated:

regarding the prosecution of individuals who

is guilty of an offence of the way in which its activities are managed or organised –

oned following conviction for manslaughter. See the case of AG v Shaw (AG Reference No.86 of 2006 (CA) [2007] Bus LR 906) whereupon after a AG reference, a director

“The Corporate Manslaughter Bill is a ground breaking piece of legislation. This is about ensuring justice for victims of corporate failures. For too long, it has been virtu-

(a)

causes a person’s death, and

(b)

amounts to a gross breach of a rel-

evant duty of care owed by the organisation to the deceased”.

ally impossible to prosecute large companies for management failures leading to death.

guilty of corporate manslaughter.

health and safety. The Act will make it easier

this Section only if the way in which its activi-

management in a substantial element in the breach referred to in sub-section (1)”.

to prosecute companies who fail to protect people.

after a hung jury at his trial was immediately imprisoned by the Court of Appeal to fifteen

other recent cases including R v Connolly [2007] EWCA Crim 790 arising out of the

“An organisation is guilty of an offence under

ties are managed or organised by its senior On the basis of gross corporate failure in

sentence for pleading guilty to manslaughter

month inside. This trend is also shown by Section I (3) states:

Today’s Act changes this. For the first time, companies and organisations can be found

who had been give a two year suspended

Teebay case where 4 men working on the railway were killed by a runaway trailer located with Rail. The brakes of the trailer had been removed. He was sentenced to 9 years imprisonment which was reduced to 7 years on appeal.

Section (4) (b) states: The reality is, however, that as police inves-

We are sending a very powerful deterrent message to those organisations which do not take their health and safety responsibilities seriously.”

“A breach if duty of care by an organisation is a ‘gross’ breach of the conduct alleged to amount to a breach of that duty falls far below that can reasonably be expected of the organisation in the circumstances”

In essence, it will finally dispense with the need to find a controlling or directing mind that is also personally guilty of manslaughter. It further massively reduces the scope of

‘Senior Management’ in relation to

an organisation, means the persons who play significant roles in –

the corporate veil and successfully convict a large or medium sized organisation. The past decade is littered with previous failed attempts to successfully prosecute in these

more arrests and therefore more convictions.

There is already an increasing number of individuals being prosecuted for both man-

this trend will accelerate after the introduction of the Act in a recent case called R v P (TLR 15th August 2007) found the prosecution need only prove that the circumstances

(i)

the making of decisions about how

the whole or a substantial part of its activities It has not previously been possible to pierce

caught up in the process resulting more in

slaughter and ss37 and 7 of the HSWA and (c)

Crown immunity that currently exists, some of which has been in existence for decades.

tigations increase, more individuals will be

ought to have put a director on Inquiry to the extent that there was a duty to act.

are to be managed or organised, or (ii)

the actual managing or organising

of the whole or a substantial part of those activities.”

Also, the Act will permit the Jury to review corporate culture inside an organisation and its general attitude to safety enforcement and control for the first time.

the barrister

Under section 8 of the Act, the Jury will be able to consider the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that

15

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1908

were likely to have encouraged any such failure or have produced tolerance of it (section 8 (3) (a) of the Act). This would include, for example, where an organisation does not enforce its policy for employees to wear high visibility jackets.

The Jury may also have regard to any health and

are pleased to announce a range of court wear now available along with our comprehensive range of gentlemans clothing

safety guidance that relates to the alleged breach (section 8 (3) (b) of the Act).

Health and safety guidance is defined in section 8 (5) of the Act as “any code, guidance, manual or similar publication which is concerned with health and safety matters. For example, ACOP’s, HSE guidance, SIM’s and a wide variety of other documents will be allowed to be weighted in the scales by the jury.

On 9th October 2007 the Institute of Directors and the Health and Safety Commission published guidelines regarding the duties of Directors inside organisations for Health and Safety. There are very wide ranging but in essence make the point that it is a collective Board duty, and will be a function that Juries will possibly look at when in the future they asses “how far short” an organisation fell, with regard to their policies and attitudes towards health and safety, if prosecuted under the new Act.

This new ability for the jury to assess and review the internal practices in an organisation will inevitably facilitate successful prosecutions, particularly when bolstered by recourse to previous health and safety violations and/or convictions.

This will be a very damning picture in certain organisations.

Punishment

Celebrating

100 years

in business

Once convicted, an organisation will face unlim-

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safety cases such as Transco and Hatfield [2007] Bus LR 77 are rising in any event.

In my view, fines in excess of £50million are not

16

the barrister

far away and when compared to the £120

This is order whereby the convicted organi-

the reality is that only small and medium or-

million imposed recently on British Airways

sations must remedy the breaches of which

ganisations have been successfully prosecut-

for anti-competitive conduct or some £300

the organisation has been convicted within a

ed. The larger organisations hitherto have

million for Microsoft recently. BP has been

period of time.

been untouched.

and fraud charges in the United States. Such

Convicted organisations can also be given a

In the next few months it will be crucial to

level of fines may soon be imposed in the

publicity order, which is an order requiring

“bed down” as tightly as possible safety sys-

health and safety sphere, both in the UK and

them to publicise in a specified manner their

tems and activities that will be capable of

in other jurisdictions.

conviction, particulars of offence, amount of

withstanding sustained probing by the Pros-

the fine and the terms of the remedial orders

ecution Authorities in the months and years

imposed.

following 6th April 2008.

fined some $170 million for environmental

This personal view is perhapes bolstered as on 15th November 2007, the Sentencing Advisory Panel published some guidelines for

The effect of publicity orders will result in

consultation into the future fining of organi-

greater damage to the reputation of the or-

Gerard Forlin is a barrister at 2-3 Grays Inn

sations.

ganisation causing lower share prices, higher

Square who has been in many of the recent

insurance premiums difficulty in recruiting

leading cases in this area (including Hatfield,

In essence, the current thinking of the Panel

and a greater difficulty when tendering for

Paddington, Southall, Teebay, Watford,

is that in the future for corporate manslaugh-

future work.

Barrow, Purley .

ter the starting point after trial should be:

Website: www.gerardforlin.com At Schedule 1 of the Act there appears a list

•

The imposition of a publicity order

of all the Government Departments that no

•

A fine of 5 per cent of the offender’s

longer have full Crown immunity. There are

average annual turnover

some 9 partial exemptions in some cases

•

Within a fine range of 2.5-10 per

including the police and MoD in situations

cent of average annual turnover, within a fine

which are truly deemed “Emergency situ-

range of 2.5-10 per cent of average annual

ations”, but it will come as no surprise that

turnover.

this is seen by certain Government departments to be unhelpful and unnecessary. On

Further when sentencing for an offence un-

the other hand, certain groups feel that there

der the Health and Safety at Work Act in-

should be no exceptions at all and that the

volving death, the starting point should be a

government has missed a golden opportunity

fine of 2.5 per cent of the offender’s average

to kick into touch Crown immunity in all its

annual turnover within a fine range of 1-7.5

guises for ever.

per cent of average annual turnover.

In my view there will in time be a further Non-profit making bodies will be looked at

gradual erosion of what limited immunity

differently but not go unpunished.

exists but we will have to wait and see. Additionally, where an organisation is subse-

This is a huge seachange in the economic cli-

quently prosecuted, the Defence will find it

mate, and I foresee great difficulties for cer-

much harder to prevent that organisation’s

tain organisations. It may well also occasion

previous convictions going before the jury,

certain organisations to reconsider the UK as

thereby making acquittals harder to achieve

a centre for their business.

in the future.

On the other hand it does equalise the pun-

Conclusions

ishment for small and large alike, given the same approximate percentages will have to

Although the Act is still not perfect, and is

be paid by offending organisations.

bound to be extended in scope both geographically and in terms of who can be pro-

Under sections 9 and 10 of the Act, convicted

tected over the coming years, it is arguably a

organisations can be given a remedial order.

fairer position than present in that for so long

Email: gerard@gerardforlin.com

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the barrister

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Bar survey backs retention of wigs inNEWS civil cases - Profession to NEWS work NEWS with NEWS senior NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS judiciary to find way ahead NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWS NEWS NEWS of NEWS NEWS NEWS A surveyNEWS conducted by theNEWS Bar Council hasNEWS found that the majority respondents back the retention wigs inNEWS civil and family NEWS cases. The Bar NEWS NEWS NEWS NEWS NEWSanNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Council conducted the survey following announcement in July 2007 by the Lord Chief Justice thatNEWS the Court DressNEWS worn byNEWS Judges NEWS sitting NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS in civil and familyNEWS cases would beNEWS changedNEWS in (this NEWS month) January 2008. Judges sitting in these cases will wear a newly designed gown, but NEWS no wigs.NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSfurther NEWS NEWS NEWS NEWS NEWS NEWSasNEWS NEWS should NEWSbeNEWS The BarNEWS CouncilNEWS now intends to consult with the profession and other stakeholders to whatNEWS (if any) changes made NEWS NEWS NEWSbearing NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS to the Bar’s courtNEWS dress inNEWS civil andNEWS family cases, in NEWS mind theNEWS results NEWS of the survey.

NEWS NEWS NEWS NEWS NEWS NEWSbeen NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The results of the survey have already provided to the Lord NEWS Chief Justice, who has agreed that the Bar Council’s consultation NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS should take place, and that the BarNEWS Council’s recommendations as toNEWS the Bar’s court dress in these cases should be reported to NEWS him by 1NEWS March NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS 2008, so NEWS that he can announce what dress NEWS will be worn in time for any changes to take place after Easter 2008.NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS parties.

NEWSThe NEWS NEWS The BarNEWS CouncilNEWS sought to gauge NEWS the level NEWS of support for dress change amongst barristers and NEWS other interested consultation NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWS NEWS NEWS NEWS received NEWS over 2,700 responses, from barristers and interested partiesNEWS such asNEWS members of the House Commons and House of Lords, students, NEWS solicitorsNEWS and theNEWS public. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSdemonstrate NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The findings overwhelming supportNEWS for theNEWS retention of existing court dressNEWS in 2008NEWS and beyond.

This support was NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS particularly strong amongst thoseNEWS other than barristers.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSthe NEWS NEWS NEWS The results of the surveyNEWS were that, for civil and family proceedings, respondents supported retention of theNEWS current full CourtNEWS Dress NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS (gown, wig, wing NEWS collar and bands)NEWS in the House of Lords (64%), CourtNEWS of Appeal (66%),NEWS High Court (61%)NEWS and County Court (47%).NEWS Retention was NEWS NEWS NEWS NEWS NEWS NEWS NEWS particularly supported forNEWS serious NEWS cases where a loss of liberty was at stake. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSCourt NEWS NEWS ‘Suits’ NEWS were deemed theNEWS second NEWS most appropriate dress in each court, andNEWS both ‘current Dress minusNEWS wig’ andNEWS ‘currentNEWS court NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS gowns over suits’NEWS registered only minor support.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS These results echo an earlier consultation undertaken in 2003 by theNEWS Bar Council.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Consumer The Winner From The Legal Beyond naming NEWS NEWS NEWS and NEWSshaming NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSAct NEWS NEWS NEWS NEWS NEWS NEWS Services The LawNEWS SocietyNEWS is challenging the Legal Complaints Service'sNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS proposals to publish complaints records.NEWS We believe thatNEWS a betterNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The public emerged the clear winners from the new Legal way to achieve a genuine improvement in client services is to helpNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Services Act, says the Institute of Legal Executives (ILEX). to build NEWS the capacity of solicitors to respond to complaints, and toNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS provide public on firms who handle well. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSinformation NEWS NEWS NEWS NEWScomplaints NEWS NEWS With the Act framing the way legal services will be delivered The LawNEWS Society has conducted polls and focus groups to listen to theNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS in England and Wales for the foreseeable future, consumers profession's views on complaint We have NEWS also reviewed NEWS NEWS NEWS NEWShandling.

NEWS NEWS NEWStheNEWS NEWS NEWS can onlyNEWS benefitNEWS from a NEWS greater NEWS choice ofNEWS places NEWS to go for legal approachNEWS of a number of international complaints bodies. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWShandling NEWS NEWS services and an improved and independent complaints system.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Our research indicated publication could: The introduction of Alternative Business and theNEWS ability NEWS NEWS NEWSconcern NEWSthat NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSStructures NEWS NEWS of non-legal companies to moveNEWS into theNEWS legal marketplace will NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS • reduceNEWS access NEWS to justice for clients in NEWS areas ofNEWS practiceNEWS NEWS presentNEWS a wider NEWS choice for those seeking services as NEWS well as NEWS NEWS NEWS NEWS NEWS NEWS legal NEWS NEWS which traditionally generate more NEWS complaints new business for firms boldNEWS enoughNEWS to graspNEWS them.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSopportunities NEWS NEWS NEWS • encourage firms to act defensively, NEWS NEWS NEWS NEWS NEWS NEWSthereby NEWSdriving NEWSupNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS costs NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The challenge facing everyone in theNEWS legal sector is NEWS how to NEWS NEWSnow NEWS NEWS NEWS NEWS • fail to NEWS encourage a customer theNEWS NEWS identify NEWS and tapNEWS into theNEWS right market their NEWS legal expertise NEWS NEWS NEWS NEWSfocused NEWS culture NEWSwithin NEWS NEWSfor NEWS NEWS profession and instead a compensation culture amongNEWS NEWS and knowledge, whetherNEWS that is on the high streetNEWS or elsewhere.

NEWS NEWS NEWSencourage NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS clients NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS In a poll NEWS on complaints received 116 responses: The improved transparency offered the Office forNEWS Legal NEWS NEWShandling, NEWSwe NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSbyNEWS NEWS • While NEWS 96% of NEWS respondents a complaints Complaints andNEWS the separation of complaints awayNEWS from NEWS NEWS NEWSalready NEWShad NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS handling policy in place, 91% indicated that they would be interested front line regulators can only give the public confidence that NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS in receiving moreNEWS information on complaints handling. complaints willNEWS be considered fairly and speedily NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSresulting NEWS • Solicitors indicated an interest receiving assistance fromNEWS NEWS in less NEWS frustration than NEWS has often been NEWS the case in theNEWS past .

NEWS NEWS NEWS NEWS NEWSinNEWS NEWS NEWS NEWS NEWS NEWS a varietyNEWS of sources onNEWS client service complaints handling.NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS and NEWS NEWS NEWS However,NEWS only 38% of respondents wereNEWS aware NEWS that the NEWS LCS ranNEWS NEWS “We welcome benefits the Act will bring forNEWS the consumer NEWS NEWS NEWS NEWS NEWSthe NEWS NEWS NEWS NEWS NEWS Lawyerline. and believe ILEX members are NEWS well placed to work withNEWS other NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS • There was strong support for information being provided legal and non-legal professionals to deliver a better service NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS to clientsNEWS on service levelsNEWS they can expectNEWS from solicitors, manyNEWS NEWS to the NEWS public,”NEWS said ILEX Chief Executive, NEWS NEWS NEWS NEWSwith NEWS NEWS NEWS NEWSDiane NEWSBurleigh.

NEWS respondents accepting that individual firms have a responsibility to NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS engage in this process. information dealNEWS NEWS “But weNEWS do have concerns over the likely setting up and running costs NEWS NEWS NEWSProviding NEWS service NEWSlevel NEWS NEWShelps NEWS NEWS NEWS NEWS NEWS NEWS NEWS with the poor client service complaints (like a delay in responding to of the Legal Services Board and the Office for Legal Complaints.

We NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS letters, rather than misconduct orNEWS negligence complaints.) can onlyNEWS hope that these NEWS costs areNEWS not so prohibitive that the legal NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS • There was a mixed response on NEWS the creation of a NEWS voluntaryNEWS NEWS sector will struggle to meet them and risk jeopardising very NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSthe NEWS accreditation process on complaints handling for firms. thing the Act wasNEWS designed to deliver, namely a wider choiceNEWS for the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS In a poll NEWS on complaints we received 325NEWS responses: consumer and aNEWS better way of handling complaints.

NEWS NEWSpublication, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSconcerns NEWS and NEWS NEWS • 76% ofNEWS respondents were not inNEWS favour of publication.

TheNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS main reason for this objection wasNEWS a concern that complaints recordsNEWS NEWS “We want to see more NEWS people buying services andNEWS more NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSlegal NEWS NEWS could notNEWS be published a way which putNEWS the information properlyNEWS NEWS importantly, returning forNEWS further services.

This is a real opportunity NEWS NEWSinNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS into context. to meetNEWS the requirements of all consumers, even NEWS those who may NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS • 53% ofNEWS respondents that ifNEWS publication was to takeNEWS NEWS not haveNEWS considered seeking legalNEWS advice or those NEWS who haveNEWS had a NEWS NEWS NEWSsaid NEWS NEWS NEWS NEWS NEWS NEWS place, only adjudicated complaints should be included in theNEWS record. NEWS NEWS limited use for legal services in the past.”NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS

the barrister

19

NEWS ROUND UP

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS IBA calls the NEWS Assembly States Parties to approve proposed reform of the NEWS NEWSon NEWS NEWS of NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS International Criminal Court’s legal aid programme NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS of NEWS NEWS NEWS NEWS NEWS NEWS The International Bar Association (IBA) called upon the Assembly States NEWS Parties (ASP) to NEWS approve NEWS the proposed reform of the NEWS NEWS NEWS NEWS NEWS NEWS NEWSand NEWS NEWStoNEWS NEWS NEWS NEWS NEWS was NEWS NEWS NEWS International Criminal Court’s (ICC) legal aid programme the increase the 2008 legal aid budget.

The proposal initiated by the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS to NEWS NEWS ICC Registry after evaluating the pre-trial phase ofNEWS the case of Thomas Lubanga Dyilo (the first suspect surrendered the ICCNEWS from the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Democratic Republic of Congo (DRC)).

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWScase NEWS NEWS NEWSbyNEWS NEWS NEWS The IBA is concerned that the pre-trial phaseNEWS of the Lubanga was NEWS lengthened due toNEWS delays caused insufficient staff NEWS and otherNEWS administrative NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS challenges faced NEWS by the court-assigned defence team.

Justice RichardNEWS Goldstone, Co-Chair of the IBA Human Rights Institute and past prosecutor NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS at the International Criminal Tribunal for the Former Yugoslavia andNEWS the International Criminal Tribunal for Rwanda comments: ‘It is important NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS that proceedings before the ICC are conducted expeditiously while safeguarding the rights of the defendants andNEWS the victims.

To accomplish this, NEWS NEWS NEWS NEWS NEWStheNEWS NEWS NEWS NEWS NEWSofNEWS NEWS NEWS NEWS States Parties must commit to providing resources necessary forNEWS the efficient and NEWS effectiveNEWS administration the legal aid programme.

Delay NEWS NEWS NEWSconsequences NEWS NEWS NEWS NEWS NEWSand NEWS NEWSthe NEWS NEWS NEWSawaiting NEWSresolution NEWS NEWS is not only costly NEWS but has serious for the defendant in custody undermines confidence of victims of the NEWS cases.’ NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSreport, NEWS NEWS NEWS NEWS NEWS NEWS appearing NEWS NEWS NEWS In its latest monitoring theNEWS IBA notes that ifNEWS adequate resources areNEWS not provided to counsel before NEWS the ICC,NEWS the challenges NEWS NEWS NEWS NEWS NEWS NEWS in NEWS NEWS NEWS NEWSthe NEWS NEWS NEWS NEWS experienced in the Lubanga case may be repeated the case of Germain Katanga, secondNEWS suspectNEWS to be surrendered to theNEWS Court from the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS DRC. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSwas NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The IBA Report launched on 27NEWS November 2007 NEWS at a highNEWS level Roundtable discussion on ‘Equality of NEWS Arms and the Right to Defence’ organised NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSdiplomats, NEWS NEWS by the IBA at the NEWS historic Peace Palace in The Hague.

The event was NEWS attendedNEWS by moreNEWS than 130NEWS participants, including judges,NEWS senior NEWS NEWS NEWS NEWS NEWS NEWS tribunals NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS ICC officials, representatives of other international and international non-governmental organisations, lawyersNEWS and lawNEWS professors.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSfor NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Welcome Court of NEWS Appeal result NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS LAPG has welcomed the NEWS judgement of theNEWS Court ofNEWS AppealNEWS in the Law Society's claim for judicial review of the LegalNEWS ServicesNEWS Commission's NEWS NEWS The NEWS NEWS NEWS NEWSright NEWS NEWS NEWS NEWS NEWS unified contract. caseNEWS primarilyNEWS challenged the LSC's extensive to amend the NEWS contractNEWS as beingNEWS inconsistent withNEWS European procurement NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS jointly NEWS NEWS legislation.

The court agreed that NEWS the LSC NEWS had not NEWS compliedNEWS with itsNEWS legal obligations.

The claim was brought byNEWS the Society with NEWS Dexter NEWS NEWS NEWSDMP's NEWS NEWSpartner NEWSBill NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Montague & Partners. managing Montague said: "As the Court of Appeal's judgment setsNEWS out so NEWS clearly, NEWS the principal of NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS transparency which underpins theNEWS public contract regulations has profound implications for NEWS legal aidNEWS contracting.

It goes to the heartNEWS of the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS relationship between the NEWS LSC andNEWS its suppliers, a relationship that is currently at anNEWS all timeNEWS low. TheNEWS LSC could makeNEWS a largeNEWS stride towards NEWS NEWS of NEWS NEWS NEWS NEWS NEWStoNEWS NEWSjudgment.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS regainingNEWS the confidence solicitors by responding constructively this landmark NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Beyond the specific steps NEWS needed to bring the unified contract in lineNEWS with theNEWS Court ofNEWS Appeal's decision, I would urge the LSC to take onNEWS board NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS its widerNEWS implications

by NEWS adoptingNEWS an approach to NEWS contracting which gives NEWS legal aidNEWS suppliers the clarity andNEWS stabilityNEWS they need to maintain NEWS NEWS NEWSIt's NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS sustainable businesses. no good payingNEWS lip service to the NEWS aim of a sustainable legal NEWS aid system if that NEWS aspiration is not embodied in the supplier NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSsaid: NEWS NEWS NEWS NEWS contracting arrangements and theNEWS terms ofNEWS the contract itself."

LAPG chairman Roy Morgan "WeNEWS are pleased that NEWS the Court of Appeal has NEWS NEWS NEWS NEWSpower NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS confirmed that the wide ranging to amend theNEWS contractNEWS between the LSC and legal aid lawyers is unlawful.

No business should be expected NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS to sign aNEWS contractNEWS with such powerNEWS being given to one contracting party, creating such NEWS uncertainty.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSor NEWS NEWS NEWS NEWS NEWS NEWSNeuberger NEWS NEWS NEWS NEWS BSB NEWS set toNEWS consider Liberty launches “Charge Release” NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS campaign haltNEWS Government plans toNEWS NEWS NEWS recommendations NEWS NEWSto NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS extend pre-charge terror NEWS NEWS NEWS NEWS NEWSdetention NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The Bar Standards Board (BSB) has responded positively to the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS final report of the Working Party on Entry to the Bar, chaired by • The human group Liberty formally launched NEWS NEWS NEWSrights NEWS NEWS NEWS NEWS NEWSitsNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Lord Neuberger of Abbotsbury.

“Charge NEWS or Release” campaign stop Government plans NEWS to extendNEWS NEWS NEWS NEWS NEWStoNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the period terror NEWS suspectsNEWS are heldNEWS withoutNEWS charge. NEWS NEWS NEWS NEWS NEWS NEWS NEWStoNEWS NEWS NEWS Responding the NEWS release of NEWS the Report, NEWS Ruth • LibertyNEWS is mobilising its members, the public and politicians NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Evans, NEWS Chair NEWS of the BarNEWS Standards Board NEWS stated to oppose any extension current 28-dayNEWS detention period,NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS beyond NEWSthe NEWS NEWS NEWS “Lord Neuberger’s comprehensive report raisesNEWS a number of which isNEWS nearly NEWS four times longer than NEWS that of NEWS most comparable NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS important issuesNEWS about entry to the Bar and diversity whichNEWS are of democracies.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS major importance to the BSB as a NEWS regulator.

The recommendations Liberty’sNEWS Charge NEWS or Release campaign adverts which compare pre-NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS deserveNEWS serious NEWS study and consideration we will look at them charge detention periodsNEWS in 15 NEWS democracies willNEWS run inNEWS nationalNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS and NEWS NEWS NEWS carefullyNEWS in the course our ownNEWS work onNEWS entry toNEWS the profession. newspapers fromNEWS today and be displayed billboards acrossNEWS London.NEWS NEWS NEWS NEWS NEWS NEWSonNEWS NEWS NEWSofNEWS NEWS See www.chargeorrelease.com forNEWS more information.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS “We share theNEWS view ofNEWS the Working Party that equality of Liberty Director Chakrabarti said: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSShami NEWS NEWS NEWS opportunity at entry is paramount to delivering a Bar that is of “Liberty calls on all those who believe that individuals must be thoughtNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS high quality, diverse and representative of the society it services. innocentNEWS until proven guilty to joinNEWS our Charge or Release NEWS NEWS NEWS NEWS NEWS campaign NEWS NEWS NEWS NEWS NEWSall NEWS NEWS These are coreNEWS values NEWS and underpin of theNEWS work we do. so that months detention without charge never NEWS become NEWS reality inNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWS NEWS NEWS Britain. Extending pre-charge detention be dangerously counter-NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSwill NEWS NEWS NEWS “Our root and branch review of the Bar Vocational Course (BVC), productive by targeting theNEWS very communities whoseNEWS help is needed NEWS NEWS NEWS NEWS NEWS NEWStoNEWS NEWS NEWS NEWSatNEWS NEWS chaired NEWS

by Derek Wood NEWS QC, hasNEWS these values its heart.

The fight extremism.”

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS review group will look closely at the recommendations.

In the coming months Liberty will also distribute a Charge or Release viralNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS film featuring Vivienne Westwood Channel 4 BritzNEWS star Riz Ahmed.

NEWS NEWS NEWS NEWSand NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS

20

the barrister

Challenging Evidence in E-Disclosure There has been an abundance of procedures and case law in the US surrounding this new area of law, originating from the now infamous Zublake1 case followed by the Sedona Principles and culminating in the updated FRCP2 in 2006 Greg Wildisen, Managing Director of PinPoint Global explores the legal and practical dilemma of processing electronic data.

I

t will not be news to most lawyers that the growing body of evidence in civil litigation stems from electronic documents. However, although the procedures and rules surrounding the production of hardcopy evidence are well documented and defined, the rules surrounding electronic evidence are, at least in the UK, still being formulated.

E-Disclosure (also known as e-Discovery and ESI Processing) is the process of finding, securing and providing electronic data with the intent of being used as evidence. Although the name stems from the litigation process, the term is now more widely applied to the treatment of electronic documents generally for litigation, arbitration and internal and regulatory investigations. Simply put – it’s the process of turning data into evidence.

There has been an abundance of procedures and case law in the US surrounding this new area of law, originating from the now infamous Zublake3 case followed by the Sedona Principles and culminating in the updated FRCP4 in 2006. There is however, precious little guidance provided by the judiciary in civil litigation in the UK. Given the increasing trend in global litigation and US headquartered companies involved in UK litigation, it seems inevitable that at least some of the US practices and procedures will find their way into the UK. Perhaps not in the form of the tidal wave predicted on the back of Sarbanes Oxley, but at the very least it will be a viral intrusion that will affect the way English lawyers deal with evidence moving forward.

There is some guidance offered in the criminal sphere through the ACPO Good Practice Guide to Computer Based Evidence as followed by computer forensic practitioners.

Arguably these should be equally applied to civil matters. This article will address some of the pragmatic issues in E-Disclosure and look at the possible legal challenges to evidence stemming from electronically stored information.

How is data harvested?

From a practical perspective, when a lawyer first becomes aware of the need to review electronic documentation, there is often a tendency to get at the evidence as quickly as possible. Usually there is some pressure to provide an initial opinion and to ‘get on top of the evidence’ promptly.

The common practice in obtaining the evidence will be to request it from the client.

Usually there will be some guidance as to the level and depth of the harvesting process, for example all email correspondence of certain custodians between a certain date range.

This request is then handed on to the client’s IT department where a technical person, who most likely has little or no understanding of the reason or legal procedures involved will collect the data (usually unsupervised) from back up files, hard drives, external drives etc to collect the specified data set.

In a better organised scenario, there may be more effort put into the scoping process to determine where any relevant data may be stored. There may also be methodologies put in place for collection and ideally documentation of the process confirming all touch points of the data. The process will still normally be performed by an internal technical person.

More rarely, the scoping will be performed by professional E-Disclosure experts in conjunction with the client and legal team, the data will be forensically harvested by technical experts in conjunction with the client’s IT team and the whole process will be professionally project managed and documented.

What is forensic harvesting?

Forensics harvesting of data is the acquisition, authentication and reconstruction of electronic information stored on computer media. This is done by making a non-invasive mirror image, a complete physical copy through bit by bit, sector by sector copying of the drive onto an external hard drive. This approach replicates all of the data including all allocated and unallocated space, deleted and corrupt files.

As part of the process, there will also be an MD5 hash verification of all of the contents of the drive to confirm that the process has worked correctly. This allows for true preservation of all potential evidence on the original hard drive. Investigation can then proceed without the potential for amending any of the original data as the forensic image is a read only version of the information. This can include viewing file creation and modification dates, viewing deleted files, partially deleted files, evidence in swap files and in file slack or determining if there have been attempts to

spoil evidence etc.

What are the weaknesses that can be tested in the UK? In the UK the best evidence rule applies – simply put, absent some exceptions, the original of a writing must be admitted into evidence in order to prove its contents. Obviously if the original isn’t available, a copy may become the best evidence available. This will then be a question as to the weight of the applicable evidence.

With respect to an original signed letter, the original is best evidence as the author or a handwriting expert can testify as to the author’s signature on the document.

This same concept can be translated to electronic documents. The best evidence will be that which is preserved forensically from the original source. It is a bit for bit mirror image of the original. Anything less than this is potentially open to challenge as it has had the opportunity to have been tampered with.

For example, simply by copying an electronic document using the Windows file system, certain meta-data will be changed as a matter of course. This copy is then not a true copy of the original.

The US experience, and the fact that most evidence in the UK is not preserved using best practice techniques means that evidence can potentially be open to challenge. However this does not mean that lawyers will seek to challenge the evidence in all cases. Often with electronic email for example, there will be no dispute as to when it was sent, by or to whom or indeed its actual content. The only question may relate to the correct interpretation of the contents. In this scenario it unlikely that there will be any benefit gained by challenging the authenticity of the document.

Where the very existence, timing or the actual content of a document is at issue, there are some legal challenges that can be considered. If we work through the scenarios above for how data is usually harvested in practice we can split the challenges into those made where data is not forensically harvested and those where it is.

Where data is not forensically harvested 1.

Challenge the source of the data

the barrister

21

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the barrister

– in many cases, especially involving multi national organisations, there is potentially massive amounts of data stored in various formats, in multiple locations. It has often been argued that a party has not provided all of the relevant documents for a matter. In the UK at least, defences of proportionality have been raised and recent US cases are tending to favour this view as well.

2.

Challenge the methodology used – the argument here is that the methodology by which the data was collected and produced is unsound and as a result, the evidence cannot be considered reliable. This will require an analysis of the methodology deployed and a clear understanding of how this may have “spoiled” the evidence. This can include a technical challenge arguing that the documents produced in court are not exact copies of the originals. This argument would normally require some prima facie evidence of tampering or bad faith on the part of the opponent.

3.

Challenge the software used to produce the output – it may be that the software used by an opponent to produce the documentation is open to challenge. For example, if a product did not correctly deal with zip files or embedded OLE objects, arguably the evidence produced by the system is unsafe.

Also if the software forces a certain output that has not been agreed by the parties it may be possible to challenge the evidence produced.

4.

Challenge preservation of the data – This argument is based on data having been missed by not preserving the evidence from the outset. For example, simply turning on a PC will change the contents of a hard drive. Sedona Principle number 5 states “The obligation to preserve electronic data and documents requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation.

However, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant data.” There is a significant body of US law outlining the severe penalties that have been applied for parties not applying an appropriate litigation hold.

5.

Challenge the chain of custody – potential electronic evidence must be accounted for from the moment of collection for discovery, to the point of admittance in court in order to prove its authenticity. Proving the chain of custody disproves tampering or alteration.

The concept was founded mainly in criminal cases where the chain of custody for evidence including inter alia murder weapons was essential in bringing a criminal to justice. The concept equally holds true for electronic document evidence but there is an added level of complexity as the chain is relevant to both the physical / tangible items, for example the PC or laptop, and also the intangible evidence, for example the actual emails, word docs or spreadsheets.

The most likely timing of a breach of the chain of custody is at the very beginning of a matter.

Lawyers, under pressure to provide opinions and determine strategy may be tempted to look for clues on a PC without realising the potential forensic damage that can be caused.

One of the major advantages of forensically harvesting the data is that provided the appropriate software is used, the chain of custody information is automatically generated at the time of acquisition and the continually self verified thereafter.

Where data is forensically harvested Where data is forensically harvested, it may still be possible to argue that the inappropriate data was harvested but it is much more difficult to challenge the methodology and content of the data.

1.

Challenge the validity of the computer forensics software product used – where data has been forensically harvested using proprietary or multiple software tools, it may be argued that the evidence outcome is not known and therefore not safe. Using the wrong tools can lead to a situation where the data restoration process alters the evidence on the evidentiary copy or provides visual output that is not complete and accurate.

In addition, a software product may not integrate all the essential forensic functions within the one application. As a result, output may be inconsistent and therefore unsafe.

The body of law in the US suggests the most reliable way to protect from such a challenge is to use an industry standard forensics software product. In the US there have been numerous cases where parties have challenged the actual software used for forensic harvesting. In Sanders v. State, the Texas Court of Appeals5 reaffirmed the reliability and accuracy of leading forensic software product.

Equally in Australia in Sony Music v. Univ. of Tasmania et al6 the court confirmed that using a recognised forensic software tool to perform forensic harvesting ensures the process is beyond challenge on that ground.

2.

Challenge the Operator as an Expert – The body of law defining experts is well established in the UK. If the examiner has weak credentials it will be possible to challenge their ability to harvest the data correctly. This will be more relevant where the results from an examiner are subjective, incomplete or variant. Also if the examiner uses multiple, bespoke software tools, this will open challenges on reliability and consistency as it will be difficult to recreate the output or suitably explain how they operate. It may also be possible to challenge the examiner on their ability to view and report on file slack, swap files, unallocated and deleted data.

Possible sanctions The main body of law on this stems from the United States, where the courts have imposed

some severe sanctions on parties that have failed to comply with the guidelines and laws on ESI7 processing. The sanctions range from reduced weight of evidence, through negative inferences to punitive damages. At times the damages have appeared to be disproportionate to the errors made by the parties.

Conclusions The area of E-Disclosure is growing through infiltration from the US and sheer weight of volume of documents being created within the UK and around the world. It is inevitable that the UK judicial system will need to better define practices and procedures in the area. These guidelines will be essential if legal practitioners start to challenge electronic evidence in the same way that their US brethren have since Zublake8.

The US has attempted to better define the position in the new FCRP. These have arguably caused more confusion then illumination9.

However at present the only real guideline is to follow best practice, which in this area means “the method that would yield the most complete and accurate results10” While there is a lack of judicial and statutory direction, the evidence in many cases may be open to practical and legal challenges. If the outcome in the US is to be used as any guide, even with the tempering of proportionality, the sanctions for correctly challenged evidence could mean that a party’s case is effectively lost even before it gets started.

For further information on this subject visit www.pinpoint-global.co.uk or email info@pinpoint-global.co.uk 1Zublake v. UBS Warburg, 220 F.R.D. 212 2Federal Rules of Civil Procedure 2206 as amended 3Zublake v. UBS Warburg, 220 F.R.D. 212 4Federal Rules of Civil Procedure 2206 as amended 5191 S.W.3d 272, (Tex.App. 2006); Cert.

Denied, 127 S.Ct. 1141. 166 L.Ed.2d 893 (U.S.2007) 6(Fed Court, NSW Dist. N128 of 2003 (May 30, 2003) 7Electronically Stored Information 8Id. 9Lloyd B. Chinn, “Discovery Rules Raise More Questions Than Answers”, New York Law Journal, November 7, 2007.

10Gates Rubber Co. v. Bando Chemicals Indus. Ltd 167 F.R.D 90 (D.C. Col., 1996)

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the barrister

Diversity- What law students think and what can be done about it

By Prudence Shapcott, Director of Research at The College of Law

O

ne of the biggest problems

feel a lot could and should be done.

tended is in a poor district of the city and was

facing the legal profes-

Chambers should take note that aspiring bar-

lucky to have thirty students in its sixth form

sion is how to open it up

risters also hold strong opinions on Diversity,

of whom perhaps ten went to university. Her

to more students from less

with eight out of ten students indicating that

Bangladeshi father works hard to support his

well-off backgrounds who

it is important that the organisation they

eight children, running a small business de-

have

money

work for has Diversity policies and practices.

livering Asian food and other materials. But

nor the contacts to break through easily into

When thinking about how diversity in the le-

she admits: “Although I have always wanted

a law career.

gal profession could be increased, the large

to be a lawyer, and my parents have always

neitherthe

majority felt that providing financial support,

been ambitious for me, I doubt if I would

Last year, the Sutton Trust, which was set up

offering work experience and introducing

have made it to this university without the

in 1997 to improve social mobility in the UK

students from non-privileged backgrounds

Pathways to the Profession scheme run by

published research on the educational back-

to relevant contacts in the legal community,

the university and sponsored by the Sutton

grounds of the UK’s top solicitors, barristers

were the best ways forward. They were con-

Trust.” She has scored a 2:1 with an A in

and judges. This research found that three

siderably less keen on the idea of pressuring

her Medical Jurisprudence Paper and Bs in

out of four top judges, more than two-thirds

firms to consider non traditional applicants

Media Law and Intellectual Property. In her

of top barristers and more than half the part-

by introducing targets.

final year she hopes to do even better in her

ners at leading law firms had attended private

Criminal Law and Gender and Justice papers

schools which educate just 7% of the popula-

In tune with their sense of responsibility and

and with her dissertation on organ donations.

tion. 81% of judges had been to Oxbridge.

wanting to help people, almost three quarters

Subjects in which she is now passionately in-

felt it was fairly important that the organi-

terested.

“I know from personal experience” Cherie

sation/chambers they work for have com-

Booth QC said recently, “how difficult it is to

munity/schools Pro Bono projects. And with

She has just completed one day shadowing

enter the profession from a non-privileged

regards to the environment, sustainability

Andrew Stewart, Clerk of the Faculty Advo-

background. The problem was not just lack of

policies and practices were also regarded as

cates, in an immigration case at the Court of

money although this was a big obstacle, but

important.

Session in Edinburgh.

who could help to find you work experience

When they finish their studies the average

She said: “In the last two years I have been at-

and mini-pupillages.”

debt estimated by the 1,489 students who

tending Pathways events and acting as a men-

also the lack of contacts – family or friends

responded to our survey, was going to be

tor to another student from a similar back-

As we know, she made it, and so did Baron-

around £14,900 and the 97 barrister stu-

ground as my own. We were well matched.

esses Helena Kennedy and Patricia Scotland.

dents expected to be further in debt - on av-

Being a Mentor and being an Ambassador for

But how many excellent would-be solicitors

erage £16,000 - by the time they started their

Pathways, helping other students, made me

and barristers have fallen by the wayside?

pupillages.

work harder and realise just how lucky I was

What can be done and what do law students

to be at this great university studying Law.

generally think about moves to increase di-

Law firms and Chambers can only do so

versity in the legal profession?

much. The barriers to going to university and

“Two years ago I spent a week at the same

studying law start much earlier. By the age

Court of Session as part of work experience.

I can answer the second question directly as

of sixteen it is not quite too late to encourage

As I watched the advocates at work I mar-

I am in charge of research at The College of

bright students from non-traditional back-

velled at their expertise and their ability to

Law, the largest postgraduate centre for legal

grounds to aspire to study law.

take criticism from the judges. I thought ‘no

vocational studies, with some 6,000 students.

way’ could I stand up in court and be like

About a quarter of them, including nearly

Last year readers of Barrister Magazine

them. From that day I ruled Advocacy out of

100 BVC students, responded to a question-

might have read about a girl called Rothna

my personal equation.

naire which we gave them as they enrolled for

Shah - thirty years or so years younger than

our Graduate Diploma in Law, Legal Practice

Cherie - a very bright student from Leith, who

“Now I am not so sure. I met Andrew at the

Course or Bar Vocational Course last Septem-

has just completed her third year of a Law

Sutton Trust’s Tenth Anniversary celebration

ber. The survey included a few questions on

degree course at Edinburgh University. They

last October. I then spent a day watching him

their attitudes to diversity. Quite clearly they

will recall that the secondary school she at-

at work. Now with the increase in confidence

the barrister

25

that Pathways has given me, I thought per-

will have come from schools with a large

ages, and may enable more students to ben-

haps I could become an advocate. I was really

proportion of children on free school meals

efit from Pathways in the future. But even

pleased to have this confidence backed up by

and which do not send many students to uni-

more important than that is the authoritative

Andrew’s own opinion. As I discussed the

versity. Assuming about 6,000 Law students

weight that such firms bring to the project,

case with him he said that of course I would

continue each year to start training contracts

showing their determination to widen access

make a good advocate. Advocacy is now back

as solicitors, this works out as a significant

to the law. Their help in terms of providing

on my agenda although with a year of further

12.5% of the total number enrolling each year

work placements within their firms will be

research I will be keeping my options open.

with the Law Society.

especially valuable.”

“You might like to know that my younger sis-

Five leading universities - Leeds, LSE, Man-

For those students wanting to become cor-

ter Imma, aged 18, wants to become a doctor.

chester, Southampton and Warwick - are in

porate or commercial lawyers, the financial

She too is on the Pathways Scheme and is in

the final stages of recruiting and register-

obstacles are not so formidable. We are al-

her second year of medicine at the University

ing 250 Pathways students, with the initial

ready working with a number of top firms

of Edinburgh.”

events taking place before the end of October.

(including Allen & Overy, Clifford Chance and

The universities were selected because of the

Linklaters) on firm-specific LPCs. The part-

The Pathways scheme, which started in Scot-

reputation of their law courses, their record

nerships we have with these and other firms

land, has been running for a few years and

of commitment to widening participation and

mean that all their postgraduate course fees

targets students from non-professional fami-

their existing links with the College of Law’s

are paid for.

lies who will often be the first in their fam-

six centres.

ily to go to university, when they enter their

When it comes to students keen to do Legal

sixth forms and encourages them to consider

The universities will deliver a variety of

Aid work we have a similar scheme with the

a legal or medical career. If they do they are

academic and skills-based sessions for the

Legal Services Commission which will pro-

given mentors, in the form of other further

Pathways students throughout their two

vide some help with course fees. We still need

advanced law students, careers advice and

year participation in the scheme, and each

to find some form of funding help for those

introductions to law firms and advocates (the

Pathways student will be allocated a current

students attracted to the universities through

Scottish equivalent of barristers). Since 2003

LLB student as a mentor. Students will also

the Pathways scheme who wish to work for

231 Pathway students have entered the uni-

receive detailed advice, guidance and sup-

High Street and other small firms who cannot

versity and of these 133, including Rothna,

port throughout the university application

fund them through their courses.

are studying Law. They still have formida-

process.

ble obstacles to overcome, not least how they

The Pathways scheme will cover Bar stu-

are to support themselves while they do their

The College and the Sutton Trust have been

dents. But they could be lost to the Bar if the

training. Rothna says somehow or other she

asking leading law firms to help in terms of

profession does not respond to them in the

will find the money. Her goal now is to do

meeting these students, providing mentors,

same was as solicitor firms are likely to do.

a postgraduate year on an MPhil course in

offering them work experience and consider-

We will need help from Barristers Chambers.

Criminology.

ing them for training contracts. We have so

We have asked them if they would consider

far had an encouraging response.

providing mentors, offering Pathway students

Last year The College of Law decided to

special pupillages and organising events, per-

embrace and expand the Pathways to Law

Five leading law firms have pledged more

haps sponsored by the Inns, where they can

scheme. This decision was based on witness-

than £350,000 over the next five years to help

meet barristers, benchers, judges and law

ing the success of the Edinburgh scheme,

finance what is now a £2m initiative to attract

lords. Perhaps the Inns could look favourably

which was singled out for a best practice

fresh talent to the legal profession. Allen and

on them for scholarships and find sponsors

award by Universities UK. The College de-

Overy, DLA Piper, Freshfields Bruckhaus Der-

of the kind they offer their own student mem-

cided to invest £1.25m over five years and to

inger, Linklaters and Lovells have committed

bers. A positive response from the Bar Coun-

put its money where its heart was. This has

both time and money to the scheme. Crucial-

cil is expected soon.

enabled the Pathways Scheme to be set up

ly, participating law firms will provide work

and to be targeting schools around each of the

experience placements to the 250 students

The College is happy to talk and meet with

College’s six centres – in London Bloomsbury,

who enter the programme each year.

anyone else to see how this project, which

London Moorgate, Birmingham, Guildford, Chester and York.

will enrich the profession with diversity, can In a joint statement Professor Nigel Savage, Chief Executive of the College, and Sir

The scheme is aimed at future solicitors and is

Peter Lampl, Chairman of the Sutton Trust,

managed by the Sutton Trust which is putting

said: “The contributions from law firms are

a further £250,000 into the project. By 2010

especially welcome as they will enable us

we estimate that we could be admitting 750

to enhance the scheme still further through

Pathways students each year. Most of these

national events and web-based support pack-

be furthered.

26

the barrister

Can torture ever be justified?

Based upon the reports by Sultan Almasoud, Liam Askins, Chris Kershaw and Darina Mackova, PHD students at The University of Hull Law School

A

s UK and US governments face increasing pressure to consider information extracted under torture in their fight against terrorism, the Law School at the University of Hull held a special two-day event to investigate key issues in the terrorism and torture debate, earlier this month. The conference attracted speakers and delegates from across the globe and raised many important issues.

A key focus of the conference was the impact of 9/11 upon democracy and law. Massimo La Torre, Universities of Hull and Catanzaro, Italy pointed out that the 9/11 attacks brought down more than the Twin Towers: they brought disregard for international law and, by faux moral and legal reasoning, brought back torture. He suggests torture is a phenomenon which is always incompatible with the rule of law and never capable of moral justification.

La Torre expressed serious concerns about the views of the US administration. Worryingly, Bush’s National Defence Strategy of March 2005 likened international law and judicial process to “a strategy of the weak”, on the same level as terrorism. La Torre deplored the assertion of the theorist John Yoo, a favourite of George Bush, that the President’s power in the context of the ‘war on terror’ is unrestrained by law.

With torture’s recrudescence, La Torre felt compelled to re-answer a question which had long been thought settled by history and jurists; a question so appalling that it should no longer be responsibly and seriously asked, namely “Is torture compatible with rule of law?” La Torre characterised torture as a form of despotism, slavery and tyranny: inherently and necessarily abusive and excessive; disproportionate and unpredictable; a practice which denies the equality and dignity of both the victim and the torturer. Torture is therefore forever incompatible with rule of law and never capable of moral justification.

Augustín José Menéndez, from the Universities of León, Spain and ARENA, Norway, presented a paper entitled Torturing constitutional theory: The constitutional of Bush II and the juridification of torture. The American Administration, he said, considered the 9/11 attacks an act of war against the US. In order to ensure the national security after 9/11, not only does the US President have the power to ignore international law, but also a new interpretation of the meaning of the right to life and integrity. This empowers the President as “torturer in chief”, allowed to take any action in order to protect the Nation. The speaker pointed out that the argument of “liberal torture” is extremely dangerous, not only on grounds of wickedness, but also because it reveals the real nature of the Cheney’s constitutional doctrine as a “decisionist theory of

law covered under a natural law façade”.

Some presented compelling arguments of specific cases of where torture can be justified. Michael S. Moore, University of Illinois, USA, offered a provocative account of situations where the ends may justify the means in the use of torture. He offered an array of potential answers “good consequences”, such as potentially saving lives of innocent people.

Moore thinks that the resort to torture can be justified in situations such as self-defence or almost guaranteed salvation of many lives.

This obviously involves an accurate balancing of the consequences and prompts important questions, such as “who decides?”, or “what counts as torture?” Is “torture” limited to the causing of harm, or does it also include omissions, such as a refusal of medical care in the case of a suspected terrorist?

Francesco Belvisi, from Modena and Reggio Emilia, Italy, examined the problematic scenario of the ‘ticking bomb’. If a bomb is set to detonate, leading to the death of possibly hundreds of innocent civilians and the terrorist is captured and is the only person capable of defusing the bomb, may one torture the detainee to save innocent lives? Belvisi emphasised the practical importance of putting oneself into the position of the official with a duty to safeguard the public. In his view, torture – in such extreme situations – can be justified.

No discussion of the the use of torture would be complete without an examination of morality. Uwe Steinhoff, University of Hong Kong, offered a lively and challenging analysis of the moral dilemma surrounding the use of torture. His creative use of scenarios to illustrate the problem offered an engaging insight into this question. Many of these considered the perspective of those who might suffer if torture were not used, emphasising that if someone instigates a terrorist attack, this person should bear the responsibility for harm done to him aimed at preventing the attack.

He made a number of references to the ethics of warfare and humanitarian law, which are founded on the principle of self-defence.

It was noted that the bombing of ‘innocent’ defenceless combatants in a trench from the air was permitted in the law of armed conflict and that the law of armed conflict allows for the euphemistically termed ‘collateral damage’ − provided the use of force fulfils military necessity and proportionality requirements.

The speaker was unequivocal in claiming the right of the moral philosopher to appeal to emotions in relation to sensitive issues such as torture.

Penny Green, King’s College, London and Tony Ward, the University of Hull presented a

paper on Torture and the Paradox of State Violence, offering a criminological perspective on “managing torture” as a practice towards which most humans have natural inhibitions.

Torture therefore corrupts and poisons all of the society and Victims of torture are not only those who are subject to brutal practices, but also those carrying them out. In the powerplay of regimes subscribing to torture, it is the human that is lost; the human essence of everyone and all. This way, the moral core of the “torture discussion” − about what kind of society we want to live in, skilfully resurfaces.

Hauke Brunkhorst, University of Flensburg, Germany, examined whether or not torture is compatible within democracy. Taking various functions of law as a starting point, he counter-posed the stabilising function of law with the emancipatory one. The stabilising function was, in Europe, historically tied to the protection of Christianity. Torture in this context – the Inquisition – was also presented as means of saving the person’s soul, the “inner life” of the criminal. Modernity, on other hand, is emblematic of the emancipatory role of law. Power-limiting constitutionalism gives way to an emancipatory constitutionalism protecting primarily the rights of free and equal citizens. Within the setting of the democratic constitutional order, torture is opposed to the principal value of constitutional democracy – the value of freedom – that shall not be unconstitutionally restricted. The unconditional prohibition on torture follows from the idea of democratic self-determination, which makes torture definitively incompatible with democracy.

The use of torture through the ages was examined. Marina Lalatta Costerbosa, Bologna, Italy, offered interesting arguments against torture developed in the past. Her paper Torture in the Modern Age challenged the frequent impression that advancement in time automatically means progress. Today’s antitorture arguments are at least 300 years old.

According to Costerbosa, torture in modern terms is a serious breach of constitutionalism. It also denies the presumption of innocence and is judicially irrational − treating innocents worse than criminals. Quite interestingly, Machiavelli himself was accused and tortured in 1512. He claimed that torture was used wrongly in relation to him, but did not reject torture in principle as a practice. By distinguishing two faces of torture − the judicial and political − he maintained that torture is a legitimate means to combat political enemies. Jeremy Bentham’s argument against torture stemmed from its excessive and extreme nature, making it impossible to control or regulate it by law. “A little bit of torture” or “sustainable torture” is logically impossible, as torture is by its essence extreme and unpredictable, or not torture at all. Costerbosa concluded that in democratic setting, law and

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the barrister

torture cannot go together and any justification of torture is merely instrumental. Practice of torture and advocacy for torture signal a crisis of democracy and harks back to pre-modern times.

An interesting joint project based on international cooperative research was the basis for the contribution by Linda Shields, Professor of Nursing at The University of Hull. Entitled “Torture and Terror: Nurses in Nazi Germany, Shields’ paper recalled the horror of World War II and explored the field of professional ethics of health workers in Nazi Germany.

Professor Shields demonstrated how even caring professions can be abused in the machinery of authoritarian regimes. Nazi “eugenics” programmes included assigning to midwives the role of identifying “defective children”; running the “euthanasia” programmes for both children and adults suffering, for instance, from epilepsy or other life-long health problems. Many nurses resisted killing their charges or participating in camp experiment programmes during the Third Reich, but there were also willing abusers, and participants who felt obliged to carry out orders.

She went on to state how the absolution of 14 nurses in the Munich trial in 1965 opens up serious questions of limits to the State servants’ duty of obedience. Documented by concrete names, faces and places, presented in a vivid manner, this contribution helped to remind conference delegates of the reality of torture.

Modern perspectives on torture were also analysed, most notably by Bev Clucas, Lecturer at the Hull Law School, who presented a paper on modern cultural representations of torture.

Considering the nature and employment of the torture scenes in the US television series 24, which has an average of 13 such scenes per series, she concluded that the show’s use of torture as a plot device is not neutral.

She argued that on balance, the show’s message was pro-torture in ticking time bomb cases. The show suggests (erroneously) that torture is practically necessary and valuable, and legally and morally permissible. The series 24 has therefore stepped out of the category of programmes we might wish to accept as pure entertainment.

The conference benefited not only from engaging and penetrating papers, but also from extremely lively debate and discussion. Unsurprisingly, there were two main positions.

The camp of “moral absolutists”, on the one hand, upheld the unconditional, definitive prohibition on torture. On the other side were those who advocated a re-consideration of the prohibition in extreme situations, such as the ‘ticking-bomb’ scenario. It was emphasised that the threat of a “slippery slope” in the latter case, however − a well-meaning exception leading inevitably to more wide-spread practice of torture − may be as noxious for democracy as is the threat of terrorism.

The dilemma of “democracy versus security” is not an easy one to resolve. Humanity has been on similar crossroads many times in the past. Which route we should choose is still in our hands.

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the barrister

29

CPD: Have we been hoodwink?

Why CPD needs reform and less regulation

By Phillip Taylor MBE, Abbey and Richmond Chambers

M

any barristers were taken a bit by surprise when the implications of the Access To Justice Act hit home to the mass of our members and that regulatory dinosaur called ‘Continuous Professional Development’ (CPD) rose its “ugly” head - as far as some, mainly older, members were concerned.

As part of a wide ranging educational report to be published this year, I have reviewed the working of the CPD system as part of my post-graduate educational research thesis, and I came upon some startling findings from those I interviewed and researched.

A starting point was a ‘Training Journal’ magazine article, where Graham Guest defines CPD in what appears to be an acceptable form as the “systematic maintenance and improvement of knowledge, skills and competence, and enhancement of learning, undertaken by a person throughout his or her working life.”

In this excellent ‘educationalists dream article’, Guest includes, as suitable CPD activities the following: in-house training, open learning, short courses, conferences, seminars, workshops, structured reading, self-study, preparing and making presentations, and acting as a coach or mentor. The remit remains therefore highly vocational for many.

However, the fact remains that any competent professional will pursue such activities without being forced to do so, and would not have survived in our profession otherwise.

And this is where the attitude problem arose with my interviewees: resentment.

by education or training establishments, such as universities or colleges; usually by a certificate, diploma or degree awarded on successful completion and this will remain with a new Education and Skills Bill expected to be completed in 2008 or 2009 which raises the school leaving age amongst other measures.

For non-formal learning, we include programmes run by organisations whose prime purpose is not the provision of learning with examples being corporate training centres in, say, a large company where a certificate may or may not be awarded when learning has taken place.

On the other hand, informal learning can be gained in an unstructured way during the course of one’s work or outside it. This is often referred to as “incidental learning” and is, by its very nature, not usually subject to some form of certification.

So what should we barristers do? Barristers have their own preferred ways of learning taken now from a mixture of academic and vocational training as my research indicated.

Each of us, I was told, when we learn anything new, typically pass through four distinct phases which Guest has helpfully re-defined for us in his article as:

1. Unconscious incompetence: we don’t know that we don’t know. We have yet to learn about a subject, such as driving a car or riding a bike.

2. Conscious incompetence: as we begin to learn something, we are very much aware of our failings and inability to master the skill we are trying to learn.

3. Conscious competence: we have begun

Unfortunately, we now have substantial statutory regulation which forces everyone to identify that the heart of CPD is the process of learning, which takes many different forms depending on which educationalist you speak to. Guest and others have suggested that it may be formal, non-formal or informal.

to master the skill but have to maintain our concentration and are still prone to errors.

4. Unconscious competence: this is where we apply the skill automatically, without the need really to think about it. The unconscious mind takes control, leaving the conscious mind to think about other things.

Guest’s Education-speak Isn’t this stuff great?

It is inevitable that much education-speak gobbledygook exists in any serious articles or comments concerning CPD today across the professions, and my research has certainly come across some beauties.

It’s accepted that formal learning has mainly been gained through structured courses run

When I did my teacher training we heard this sort of thing everyday… but it was such a change from court and client work, and is something we will all probably hear more of as CPD function is expanded because it is a money spinner.

So did we expect to undertake this when we first thought of becoming advocates?

In some respects, CPD is just a way of giving a name to a process that we have all been engaged in anyway, probably subconsciously when reading ‘The Times’ on the train to chambers. If we have been successful in our chosen career the chances are that we have been ‘doing CPD’ incidentally and without being aware of it since call.

THE CPD INSTITUTE My starting point with modern, 21st century CPD thinking was triggered by a letter I received from the Institute of Continuing Professional Development (www.cpdinstitute. org). In it, the institute has described itself as a ‘cross-professional’ organisation, promoting the values of lifelong learning whilst encouraging networking and partnership amongst individual professionals and the groups they are associated with. So nothing wrong there, then.

I saw when discussing their role with them, that ICPD members are at the forefront of the current government’s lifelong learning policy which can be described as ‘learning from the cradle to the grave for both personal and professional enrichment, with the focus on the learner’.

What the ICPD fosters is lifelong learning in both professional and networking functions so that professional bodies like the Bar, business, education and training establishments, employers’ organisations and trades unions will retain an interest in supporting the CPD of their members, clients, employees and students through an approach based on partnership. The networking element identifies CPD and the wider concept of lifelong learning as vital ingredients in an increasingly ‘networked world’ (quite a change for the Bar, some might think!) as the growth of information and communication technologies dissolves distances.

One conclusion I came to was that the starting point for the CPD function is that all professionals (not just advocates) are assumed to be technically competent and managerially capable (even if they have small staff). Indeed, in our knowledge-intensive world some have argued that the only real source of sustainable competitive advantage is the ability to recognise and adapt to these changes faster than the competition. Most of my interviewee agreed with that point.

30

the barrister

The commitment to keeping up to date has grown in significance as an increasing number of people recognise the benefits of adopting a planned and structured approach to post-qualification learning at a reasonable cost in time and money.

Commitment to CPD has acknowledged that becoming professionally qualified is not merely an end in itself - it is merely the beginning. Updating skills and knowledge on a continuous basis is essential to career progression, particularly given the passing of the 'job for life' and rigorously-defined career path cultures pursued currently.

The Institute is part of the Continuing Professional Development Foundation, an educational charitable trust providing high-quality and broad-ranging CPD since 1981 and now very much in vogue. The Institute does serve the public interest by helping to raise the effectiveness of professionals through the promotion of CPD as an important and integral element of lifelong learning but has been the subject of claims that it is a ‘bit of a moneyspinner’ which I wanted to reject from my research as being an unfounded slur.

A REGULAR CPD COMMENT ‘CPD- an insult to the integrity of the junior barrister’ I received some surprisingly vicious views in a series of anonymous surveys with attendees at the updating Conditional Fee Agreement regulations courses which I have presented for the lat ten years as part of my own CPD commitment. Comments ranging from ‘waste of time’, to ‘money-making schemes for the clapped out’, etc filled the questionnaires I received. Frankly, some remarks were very colourful and clearly illustrated the resentment and irritation felt by many towards the new regulatory structure. The problem I had was that some attendees clearly knew much more than I did about specific aspects of the course seminars (but not everything), so they felt frustrated about being there.

So, how does CPD help you personally then?

A main theme running through current educational thinking requires that evidence be provided that learning has taken place. Benefits of CPD aren’t just felt when you’re going for a legal promotion or upgrading your qualifications. Many employers in the professions now value ‘learning agility’ as a core competency and this is to be broadly welcomed by the Bar in my view as we enter the new world of more formal appraisals by our peers even in our own world.

These are some of the benefits which the CPD propagandists (to some, ‘money-makers’) suggest: CPD builds confidence and credibility -you can see your progression by tracking your

learning on, guess what, …a ‘form’!

You will earn more by “showcasing” your achievements- a handy tool for job/career appraisals, and showcasing is such a handy word!

Achieve your career goals by focusing on your training and development, which I felt all members of the Independent Bar actually did.

Cope positively with change by constantly updating your skill set… by, presumably, reading ‘The Criminal Law Review’ assiduously every month.

Be more productive and efficient by reflecting on your learning and highlighting gaps in your knowledge and experience. Reflection is the key word here and I have little to disagree with the needs to do this regularly.

How does CPD help the Bar generally?

As chambers shift the responsibility for personal development back to the individual, the ability and insight to manage one’s own professional growth is seen as a key strength but just how relevant is this to us? Think of some of the published benefits: • They help maximise staff potential by linking learning to actions and theory to practice (but we are sole traders).

• Helps HR professionals to set SMART (specific, measurable, achievable, realistic and time-bound) objectives, for training activity to be more closely linked to business needs (but we are sole traders).

• Promotes staff development. This leads to better staff morale and a motivated workforce helps give a positive image/brand to organisations (but we are sole traders).

• Adds-value, by reflecting it will help staff to consciously apply learning to their role and the organisation’s development (but we are sole traders).

• Linking to appraisals.

This is a good tool to help employees focus their achievements throughout the year (but we are still sole traders).

In quite a few professions now, members (excluding student members) have a professional obligation to undertake a minimum of between 30 to 35 hours structured CPD work in any one year, calendar, financial or academic.

This, it is often stressed is for the members’ own benefit, and often embodied in codes of conduct. Professionals should also, where possible and appropriate, support the professional development of fellow members and potential members of their profession.

It is worth remembering that any professional qualification gained has a limited shelf life when considered against the length of careers. The knowledge obtained when qualifying does not remain at the same level but is updated by training and personal experiences, i.e. by continuing professional development.

To strengthen the regulatory framework, each

year, regulators will undertake random monitoring of the eligible membership in a given profession. Failure to reply to this monitoring does result in some professionals being “monitored” for their CPD commitment for three years to ensure that they demonstrate their compliance. Any failure to undertake these requirements can and now often does result in referral to the Conduct Committee for breach of a profession’s Code of Conduct. This is probably where the resentment comes in as many barristers I have talked to feel this fetters their individuality, and hence their special freedoms to act as advocates unhindered by threats from their professional guardians.

Personal Development Plans Many professions consider that it is the responsibility of the individual to determine their own CPD requirements, and can be required to develop their own Personal Development Plan (PDP) at the beginning of each year to identify development activities they wish to undertake in support of their own objectives. This is when my research showed deep resentment and fears that individuals would, next, be told what they should undertake for development.

THE BUREAUCRACY BIT Below is a typical guidance procedure which many now have to follow for completion of a Personal Development Plan (PDP) and a CPD record card similar to the sort of logs we must keep: • Your CPD programme is personal — you should complete your PDP at the beginning of each year, this will assist you in determining your CPD requirements which should be relevant in your area of expertise or future career ; • you are encouraged to consult with your seniors when developing and reviewing your PDP ; • you must keep a record of your CPD activity — you should then indicate the type of activity and the number of CPD hours undertaken on your personal record card; • CPD hours only include those where professional development has been achieved (a dangerous development when suggests that learning must have been seen to have taken place) ; • you should maintain a file of all CCPD activity undertaken — you can show this to employers and clients (do you actually have the time for this bureaucracy) ; • unless asked, you will not be required to send your PDP and record card to your professional body.

You should also: • Use CPD as a necessary (and stimulating) experience to develop new talents and skills which will almost certainly be discussed in the new Education and Skills Bill produced in November 2007 ;

the barrister

• identify and honestly appraise personal shortcomings in your role as an advocate; • consider interests and responsibilities; • think about changes which affect you personally or the profession at large; • appraise present tasks and performance; • consider career development or transition to a new role; • consider how you will develop corporate, personal, management and technical skills; • define priorities; short, medium and long term needs; • consider time and costs available; • think laterally because your CPD does is not necessarily expensive; • consider networking throughout the Bar and at other professional meetings like the Bar Conference; find practical ways to meet your needs; • expand on day-to-day maintenance of knowledge and skills; • record and re-assess your personal CPD efforts on a regular basis; • check progress and discuss with colleagues; • modify and improve your plan as necessary; • avoid downgrading CPD to a hunt for CPD certificates...which is what I found most do!

The activities are the best with the following being recommended for CPD: • structured reading of books and periodicals (which we do) • use of distance learning text, DVDs and CDs (which we do) • writing articles/academic/professional papers (which we do) • private study including systematic study of literature or learning a new and relevant language • recording on-the-job research • studies leading to a further qualification or academic award • teaching — for those in practice • practice — for those in teaching • examining or tutoring • committee/community/Institute work which extends peer group learning • CPD clubs The professional also see to be following a new organised CPD direction which includes: in-house seminars; joint programmes with other practices/chambers; local CPD events, like ones arranged by the Bar Council or other groups; regional or central CPD events, courses, conferences and seminars; structured professional presentations; and programmes organised by CPD consultants.

WAIT A MINUTE! Haven’t we being doing this before? So isn’t this just a job creation exercise for bureaucrats? Remember, our profession tells us that we must demonstrate to clients, colleagues and the public at large the commitment, especially of practising members to be well

informed and up-to-date in our spheres of involvement.

It is a matter of record that exercising due skill and care depends upon keeping abreast of developments by focusing the individual member’s attention on what is necessary to remain competent by keeping up-to-date and allows the Head of Chambers to develop a structured training scheme for the members of chambers; it shows that (fill in name of relevant professional body here) is promoting competence in its professional membership; and it shows the public that it is served by a profession intent on maintaining high standards.

31

this decision. Whilst attending courses alone will not guarantee that appropriate standards are maintained, the Bar Standards Board considers that mandatory compliance with a planned programme of CPD is essential if barristers are to maintain and improve their skills.., and the judges agree.

The trouble is, are we getting too top-heavy with the regulation? The answer, from my research is a resounding, yet anonymous, ‘yes’, with CPD driving people out because the profession they joined has radically changed. Although I thought the reality a little different when the numbers remaining in practice are now steady.

So how does CPD benefit you now we have looked at the personal side?

What are our current rules?

The benefits of CPD aren’t just felt when you’re going for promotion or upgrading to chartered membership. Human resource managers now value ‘learning agility’ as a core competency and the Bar would appear to be going down this route; build confidence and credibility, you can see your progression by tracking your learning; earn more by showcasing your achievements; a handy tool for appraisals; achieve your career goals by focussing on your training and development; cope positively with change by constantly updating your skill set; and be more productive and efficient by reflecting on your learning and highlighting gaps in your knowledge and experience. My research shows that in the view of some this simply does not fit in with the role of the advocate as they see it.

So, as organisations shift the responsibility for personal development back to the individual, which is now happening to a greater degree, the ability and insight to manage your own professional growth as a lawyer is being seen as a key strength.

THE PROBLEM IS TOO MUCH REGULATION Many interviewees felt we now have far too much regulation. To balance this, some suggested that, in order to maintain and enhance the quality of legal services that they offer, barristers need to update and develop specialist areas of knowledge and substantially improve their skills, and quite a few judges supported this observation. Furthermore, in the face of increasing competition in the market for legal services, barristers must have sufficient flexibility to adapt to the changing demands of clients, the profession and their own careers.

We know that the Bar Standards Board is committed to ensuring that the profession continues to offer legal services of the very highest quality, therefore it was decided that all practising barristers are required to complete CPD, and there was no democracy in

In the first three years’ of practice, newly qualified practitioners are required to complete 45 hours of CPD, including at least 9 hours of Advocacy Training and 3 hours of Ethics (the “New Practitioners’ Programme”).

After the first three years of practice, barristers are required to undertake 12 hours of CPD each year, called the “Established Practitioners’ Programme”.

The BSB website gives all the necessary advice and paperwork but I did conclude that CPD is very necessary for some but not all.

The concept has been imposed because those in authority knew it would not be accepted voluntarily and time will tell whether it is a success or merely an additional element of bureaucracy which most barristers thought they had escaped from by joining the Bar. I concluded that the CPD system for us is here to stay but it will remain deeply resented unless it is reformed; it treats barristers as though they were back in school, but it also gives a great deal of new information which we might not have seen or heard. I started this review by saying CPD needs reform. It does and the best method suggested by interviewees would be a relaxation, and an acknowledgement that barristers should be able to fulfill their own destinies without recourse to disciplinary codes of conduct which appear bullying and intimidating in nature and far removed from the concept of the unfettered advocate. I fear my conclusion will fall on fallow ground and bureaucracy will continue to rule, stifling creativity and placing more unnecessary burdens on an already overburdened professional to the detriment of his work as an advocate.

NEWS ROUND UP

32

the barrister

A new direction in stringent times Primarily, we need to reduce the prison population. This proposal in itself is aimed at improving community buy-in to what Probation does and hopefully thereby the Courts as well. More immediately we could re-introduce greater professional discretion over breach and recall decisions, so that we stop sending and returning so many to prison because they’ve not observed all the rules to the letter

By Mike McClelland, National Chair of Napo anet Allison is a mother of five

J

that he expects the law to be revised but not

ice would that money buy? Enough to fund

living in Georgia, USA. Recently

repealed. "It is very politically risky to even

rather more than 500 cases even at risk level

she was forced to move from a

hold hearings," he says, because lawmakers

4 one suspects. But how strange that at the

four-bedroom home in down-

who change the rules could be called "soft

same time that a prison building programme

town Dahlonega to a two-bed-

on crime."

is being trailed as the solution to prison over-

room mobile home "way off on

crowding, we have the announcement of the

a dirt road" because she is a convicted sex

We are good at copying the States. We have

Comprehensive Spending Review for 2008-

offender and her former home was within a

pursued this same Catch 22 approach to

10 which appears to indicate a ‘flat cash’

quarter of a mile of a church.

crime, not just with sex offenders but gener-

settlement for the Ministry of Justice.

ally. Why? Put simply, being tough on crime

will decimate Probation and the Prison Serv-

Allison's situation

reflects how residency

This

is seen as a vote winner.

ice too is talking about closing if not prisons

laws can affect those who aren't necessarily

Faced with the unintended or unforeseen

then at least wings within prisons – at the

sexual predators. She was arrested in 2001

consequences of their own actions many

same time as the Government is announcing

for allowing the 17-year-old boyfriend of her

legislatures in the States, like Iowa, are now

the provision of more prison places – 8500

pregnant daughter, then 15, to move in with

seeking to re-frame their Megan’s Laws to

by 2012. Does this make any sense?

them. She was convicted of being a party to

make them not only workable but also less

child molestation.

risky. But this is difficult because once you

If there are no more resources for Probation

have become ‘tough on crime’, how can you

then we must begin asking what work is not

Allison didn't go to prison, but three of her

become ‘soft on crime’ without committing

to be done. Because much as it might suit

children were put in foster care, and she's

political suicide?

the Government for the Probation Service

not allowed to have contact with her daugh-

to demonstrate infinite elasticity in terms of

ter or grandson. "I didn't touch anyone," Al-

Something else that we emulate the USA in,

capacity, it is not going to happen. Already

lison says. "I just thought I was protecting

as a direct consequence of this political ap-

in his annual report this year, the Chief In-

my daughter."

proach to crime, is a prison population the

spector of Probation has

size of which is both an absolute disgrace

ous concern over resources and capacity and

There are problems associated with these

and an appalling waste of public funds. Of

this even before this CSR announcement.

residency restrictions, passed in 27 states

course those that present a real threat to so-

The message has to be that, like the Prison

and hundreds of cities in the US over the past

ciety, a real risk, need to be imprisoned, but

Service, Probation too has a ‘No Vacancies’

decade, even for those offenders deemed to

we cannot, and should not be imprisoning so

sign that can and will go up in the window.

be high risk and predatory. Barring them

many others unnecessarily when there are

That would be very politically inconvenient

from living, often in entire cities, because of

alternatives.

because of course the Probation Service

overlapping exclusion zones around schools,

flagged up a seri-

remains the pressure release valve for an

churches and day care centres forces many

For the second time last year our prison

overstretched Prison Service – after Proba-

to live in remote areas where they become

population has peaked at record levels and

tion, there is no place to go – no police or

more difficult for the authorities to monitor.

sticking plaster solutions such as early re-

Court cells. The Government cannot go on

Many don’t register with local police as the

lease have not stemmed the relentless in-

demanding more for less. Probation resourc-

laws require or they give fake addresses.

crease brought about by being tough on

es have increased over the past 10 years and

Many complain they cannot find a place to

crime. What is the Government’s answer?

staff numbers also, but workloads have in-

live legally.

Build more prisons.

creased at even greater pace.

In Iowa, legislators began holding hearings

An average size prison costs around £100

The Government appear to have boxed them-

in January 2007 on the effectiveness of a

million to build and it costs about £25,000

selves into a corner with no funds available

2002 law that bars sex offenders from liv-

per year to keep one person in jail – so an-

– either that or they intend to build them-

ing within 2,000 feet of a school. Sen. Keith

nual running costs for a 500 bed jail are in

selves out in the form of more prison places

Kreiman, Democratic co-chairman of the

the region of £12 million. What additional

with money from who knows where.

Judiciary Committee, is reported as saying

level of supervision by the Probation Serv-

33

the barrister

Perhaps there is a third way out?

– for apology, for explanation and hopefully

Ministry of Justice recommends that NOMS

for re-assurance. The methodical application

should be subsumed into the Ministry it-

Probation was known as a social work agen-

of the principles of restorative justice should

self. It is a cuckoo in the nest of Probation

cy and is now supposedly a law enforcement

be employed routinely.

and should disappear along with the ghastly

agency. It makes or encourages the people it

phrase ‘Offender Management’ Bring back

supervises observe society’s rules and laws

And by so doing hopefully we achieve fewer

– indeed the rule of law. Probation staff have

victims over time and fewer offenders too

always encouraged, cajoled and persuaded

– for the converse of this process or indeed

But even if NOMS were to go – and it seems

those who offend to desist. That has always

the complementary process is to re-instate

to be having difficulty even dying with dig-

been a primary task. We have always had

people who have offended back in their com-

nity, the concepts behind it may remain. End

a role also in punishment but that role has

munities as non-offenders. It’s a process of

to end sentence management. This is accept-

been primarily achieved through depriv-

repair and restoration.

ed and indeed is something that Probation

ing people of their time, of their freedom

Probation.

staff have long sought to achieve, but much

– through prison, through unpaid work and

As much as anything this suggestion involves

of what NOMS appears to represent, has little

supervision. But we are going to achieve our

more of a change in style and language for

if anything to do with Probation. Contestabil-

greatest successes through the methodologies

already the Probation Service employs this

ity, service level agreements, business plans,

of social work, reflecting those values that

approach with many victims. It can be ex-

OMNI transformations etc.

we hold dear. Treating people with dignity

tended, and thus at modest cost the emphasis

but do they benefit service delivery?

and respect, understanding their difficulties

of the whole system might be adjusted with-

is little sign that the balance sheet shows re-

as well as their shortcomings. Empowering

out political suicide.

sources are saved by adopting all these won-

them to move their own lives down less destructive paths.

All cost money There

derful new ideas for behaving like a private Even so, this proposal would involve some

business. By all means we should operate in

costs and with no additional resources, in-

a business like fashion but we are a public

Punishment is an inevitable element in dis-

deed with the prospect of swingeing cuts

service and should ever remain so.

pensing justice, but in Probation it is only a

right across the Ministry of Justice how might

start. We do much more, with the same aim

it be afforded?

Constant structural and procedural changes,

of reducing re-offending, reducing the num-

changes moreover often without proper eval-

bers of both offenders and victims – but we

In conclusion then, some brief suggestions

uation, must stop. They are debilitating and

add positive value to simple punishment.

for savings.

costly. A radical overhaul of targets and ac-

Challenging criminal behaviour is something

Primarily, we need to reduce the prison pop-

bureaucracy that goes with them is long over-

the service does well but this third way sug-

ulation. This proposal in itself is aimed at

due and could both save significant amounts

gests doing it increasingly differently and in

improving community buy-in to what Proba-

and improve professional practice.

such a way as to move us all from that corner

tion does and hopefully thereby the Courts

described above. This is not moving from be-

as well. More immediately we could re-in-

Frustration over useless IT systems doesn’t

ing tough on crime to being soft on crime but

troduce greater professional discretion over

simmer, it boils over.

They need rational-

something different altogether and therefore

breach and recall decisions, so that we stop

ising and simplifying.

Central IT and es-

something that can work politically.

sending and returning so many to prison be-

tates contracts also, should be abolished. Ac-

cause they’ve not observed all the rules to the

credited programmes need to be overhauled.

The criminal justice system is supposed to be

letter.

Breach and recall should be based

Maybe they’re good to have but maybe many

re-balanced in favour of the victim. The par-

much more on assessments of risk. With the

of them are too long, too restrictive and just

allel concepts of community and restorative

same objective, we could influence sentencing

a bit unaffordable. Lastly, sickness absence

justice can be used and extended to achieve

by ratcheting down proposals.

Proposals

within Probation needs to be addressed but

this. Already the Probation Service has a

for custody in PSRs should be prohibited, as

not utilising the current draconian approach

statutory role in respect of some victims but

they used to be – there are ways of doing this

of many Areas. Management and unions lo-

there is much more that could be done to

without making seeming wholly unrealistic.

cally need to address the problems construc-

take control away from both the State and

Generally, Probation should be about propos-

tively and this means looking honestly at

those who commit crimes. Victim personal

ing the least intrusive disposals that meet the

workloads.

statements, taken on a longitudinal basis

needs of the case in terms of seriousness and

could be used more to give those who have

risk. This will entail a radical re-think over

These then are just a few ideas on saving

suffered crime the opportunity to continue

targets which skew our deliberations and al-

money without attacking frontline services.

to reflect their pain, their hurt and their loss

most by definition, “up the tariff”. We must

They may sound drastic but we are entering

until it goes away. With their permission,

seek to reverse the ever more punitive trend

an extremely difficult phase. Difficult situa-

these statements can be used to challenge

- this will save prison places.

tions demand drastic solutions and linked to

countability together with all the concomitant

those who have offended in supervision by

a new direction,

the Probation Service. And victims should be

Next, a radical review of overheads.

given the opportunity for more if they wish it

recent but as yet unpublished review of the

The

I believe this can work to

everyone’s advantage.

34

the barrister

Burma's circle of history: 45 years of death, torture and persecution

By Niall Couper, Amnesty International UK Who can forget the blood-soaked images of Burma?

Thousands of monks filled the streets of Rangoon in peaceful protest as August moved into September. The Buddhist monks in the southeast Asian state led a tidal wave of saffron opposing a regime where child soldiers, torture, and detention without trial are all common practice.Then came the reaction. The gunfire and batons of an over-zealous military regime. The Burmese government admitted to 13 deaths, the true figure is believed to be much higher. Thousands were arrested and most remain in detention now. Human rights violations continue to this day. It is a sorry picture, but sadly it is also nothing new. The post-war history of Burma is one of military control, violence and continual repression.

Below are the tragic tales from three individuals from three different generations – all telling remarkably similar stories.

In 1962, Kundrapu Appa Rao was a medical student at Rangoon University. He lived with nine other members of his family in a flat in the Kandawgyi suburb of the city, a short walk from the famous Shwedagon Pagoda.

At the time, Burma was moving into its 14th year of democracy having gained independence from the UK in 1948. U Nu was back in as president, but his policies of promoting Buddhism as the state religion and his tolerance of separatism were riling the military.

“U Nu’s popularity was immense,” said Kundrapu. “He was the Burmese version of Winston Churchill. But the military despised him.

“You could sense something was going to happen, and on 2 March 1962 something did.

“The military chief of staff, Ne Win, staged a successful coup d’etat and in one swift stroke democracy became a thing of the past.

“The military installed a watch on every street corner.

“They would make demands on ordinary citizens to do this or that. I can vividly recall the knocks on our door. One time they demanded that one member of my family go out and clean the streets. My grandfather volunteered. He was a bit frail, but he had his pride and insisted.

“These demands were happening all across the city and I suppose it was inevitable that discontent would bubble up, but no one really expected that the response from the junta would be quite as brutal as it was.”

It came on 7 July 1962. Students at Rangoon University were staging a peaceful demonstration. Ne Win sent in the troops to disperse them. By morning, 100 students had been

shot dead and the historic Rangoon University Student Union building had been reduced to rubble.

“News of the shootings spread throughout the city like wild fire,” recalled Kundrapu.

“My best friend Tom Parksein had been at the demonstration. We grew up together. He lived on the other side of the street. We used to have a sing song, grab a bite to eat together – all the usual things. That night I feared for his life.

“It was a great relief to see him the next morning, but he was inconsolable. Two of his friends had been shot and killed.

“The military had stormed in and everyone had scattered, desperate to find a place to hide. Tom was lucky, he hid well. Others were not so lucky.

“His friends had leapt off the road into a deep gulley. I knew the spot. It was dark and reasonably secluded. They must have thought they were safe. But the army found them and shot them all.

“Tom was peace-loving. He did not advocate violence. He just wanted to escape. He was very frightened. A couple of days later he was arrested and beaten up. He was never the same again.

“He went back to university briefly, before the authorities shut them all down.

“It was around that time that I knew I had to emigrate.

“I was the first one of my family to leave, but everyone else followed soon after. My mother went to relatives in India. My dad, who was working for Burmese telecommunications in Rangoon, stayed until 1964. I left in November 1963. I went first to India and then brought a one-way ticket to England on the never never and joined the RAF as an airman. I never looked back.”

In 1987, Ko Aung was in the last year of an industrial chemistry degree at the Rangoon Art and Science University. Like many other people in Burma he had just reason to be angry with the ruling military junta.

His father was a Major General in 1962 and was one of 50 people called to a meeting by the military chief of staff, Ne Win, to be told of the imminent coup d’etat.

He refused to take part and was kicked out of the military. It was a decision that was to have devastating effects on the family – their import-export tea-leaf business was raised to the ground three times, and Ko Aung’s mother was detained at a military base for six months and repeatedly tortured.

“For all those reasons, I was no fan of the regime,” admitted Ko Aung. “But I wasn’t

involved in anything politically. I was just a student.”

In September 1987 his attitude changed. The military junta made several of the country’s banknotes illegal overnight.

“It was ridiculous. People’s savings were wiped out. I was in the university library when I heard the announcement and I was livid. I stood up and started shouting. ‘We are citizens of Burma, we need to make a stand.

We have no money now, how are we going to survive? We cannot let this happen!’

“I’ll admit I think I scared a few people, I recall loads of students running off, but a few came to me and that’s how it all started.”

Later that evening, they symbolically burnt the now illegal notes in the university canteen and as numbers grew a few government trucks were set alight outside the campus. It was the beginning of an underground student movement. They met secretively, hid in monasteries, made contacts in other universities and began to distribute leaflets condemning the regime.

The junta became increasingly worried and on 13 March 1988 they began their crackdown. A student called Phonemaw was killed at a demonstration. His death sparked massive protests and a few days later the military regime came down hard again, killing dozens as the students headed to a rally in the city centre.

Ko Aung was arrested and detained for one month. By the time of his release all the universities had been closed down to try and stifle dissent. Ko Aung headed north to his hometown of Daungyunt and formed the RedFighting Peacock Student Union, a group of 3,000 like-minded individuals. Other student leaders set up similar networks in their towns and when the universities re-opened in June, they all combined to get to work on building a mass demonstration for 8 August 1988.

“We were really careful. We would split into groups of five or six, go into crowded areas, distribute leaflets, make a political speech and then run away. We had no idea how big it was going to be.”

When the day came over a million people took to the streets of Rangoon, with other large demonstrations in other cities across Burma.

It was to end with other a thousand dead.

“That day the military junta lost it. That day gave me strength. The brutality. The crackdown in front of me. That day. I will never forget that day.”

The demonstrations began at 8am. Across

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the barrister

Rangoon various groups were gathering outside key buildings preparing for a 48-hour hunger strike.

Ko Aung had led his students to the City Hall.

To begin with relations with the police were good natured. It all changed when darkness fell.

“At 9pm the police asked us to disperse and I passed that on to the students and said it was their own personal decision. Most chose to stay.

“At 10.30, one of the students rushed to me and said they had seen military vehicles leaving Aung San Stadium and heading in our direction. Again I turned to the students. I said: ‘You can stay, but they will use force to get you to disperse.’ A voice came back: ‘This is a secure place, we are next to the Swedagon Pagoda, there are lots of diplomats and embassies around – they won’t kill us here’.

Some people left, but most were swayed by that argument.

“Then an armoured car and eight military trucks came round the pagoda and blocked one end of the street. And it started.

“The killing, the beating, the shootings. I witnessed hundreds of students being killed in front of Rangoon City Hall – students that I had led there. People that I was very close to.

“I still find it very hard to talk about. This young girl, a close friend of the family. I taught her English and maths. She was like a sister to me. She was just 13 and was one of the students I had recruited. Her name was Nu Nu Ngwe.

“She held a Red-fighting Peacock flag and ran towards the armoured car. I shouted and shouted, but she didn’t stop. I tried to push through the crowd, but there were too many people.

“She reached the pagoda and then she climbed up the armoured car. She put her chest in front of the machine gun.

“I remember hearing her shout: ‘We are the people’s soldiers, don’t shoot us we are students. We are your brothers and sisters’.

“I tried to reach her to stop her, but I couldn’t.

Then the machine gun opened fire.

“I just stood there, watching as her body flew backwards and dropped to the street. I ran to her. She was still holding the flag. I was crying and crying. I was in a daze. Everyone around me was telling me to run. I tried to pick her body, I asked for people to help me carry her. But they just told me to flee, to leave her. I wanted to take the body. I wanted to take it, but I left her there. I took the flag and left.

“We didn’t have anything against them except our voices and they started to kill, with bullets and bayonets.”

The killings would lead to the arrival on the political scene of Aung San Suu Kyi, the crea-

tion of the All Burma Federation of Student Unions (ABFSU) and the re-emergence of the former Prime Minister U Nu. All three worked closely together in an attempt to create a caretaker government. It would prove fruitless as the military continued to clamp down on dissent.

There was to be one last demonstration on 19 September. It too was to end in a massacre with over 3,000 dead.

Ko Aung was arrested two days later and after six months of brutal torture he confessed and spent the next five years in jail.

“I got a lot of support from Amnesty when I was in prison. The authorities didn’t want me to know, but I knew that they were helping me.

“When you are inside prison you try to get information anyway you can. Sometimes it would be hidden in my food, other times it would arrive from a warden.

“It gave me strength, it made me aware that the wider world was not going to give up on me.”

Ko Aung escaped to Thailand shortly after his release and now lives in the UK, where he is a firm supporter of the work of Amnesty International and an active member of Burma Campaign UK. On 7 October 2007, Hlaing Moe Than, a 37year-old Physics tutor, slipped across the border from Burma into Thailand. It was the end of his direct 20-year fight with the authorities.

Hlaing Moe Than was an organiser for Aung San Suu Kyi’s National League for Democracy back in 1988 and was determined to overthrow the Burmese military junta.

In 1990, he thought he had succeeded when the first elections in nearly 30 years delivered an overwhelming majority for the NLD – they took 392 of the 485 parliamentary seats. Instead the ruling government simply ignored the results and ordered the arrests of hundreds of political activists – Hlaing Moe Than was one of them.

He was to spend eight years in prison in Mandalay for his peaceful political activities.

At the turn of the century there was a brief flicker of hope – relations between Thailand and Burma improved and Aung San Suu Kyi was free from house arrest. It was to be extinguished in 2005, when the government began a review of the constitution which excluded all the main opposition and ethnic groups.

Then in 2007 the marches began again. A huge hike in fuel prices encouraged students onto the streets and once the Government refused to back down, Buddhist monks began to get involved. It would lead to the vivid saffron protests that brought over 100,000 people on to the streets of Rangoon in late September. Then came the crackdown on 27 September, Hlaing Moe Than was there to

witness it all first hand.

“It was chaos everywhere. I remember three or four boys from a tea shop were curious about the demonstration and came out to look. Then the security forces blocked the street from both ends. People ran into the flats along the street. The military started to attack those who couldn’t get away – protestors and onlookers – and arrested about 50 people. “”The boys were about 13 to 15 years old. I saw two of them with blood gushing out of their heads and then both of them fell to the ground where they were standing. The remaining waiters ran into the shop and were chased by security forces.”

People were being rounded up all across the city. A friend of Hlaing Moe Than managed to get a message to him from the Rangoon Technical Institute where he was being held.

“He told me that there were about 1,450 prisoners being here there and 500 of them had head injuries. They needed immediate medical attention, but there was nothing. There was no drinking water and there was no toilet. None at all.

“A huge number of those people being held there were monks. Some of them had been forcibly disrobed. They were given civilian clothes but the monks didn’t want to wear civilian clothes so they remained topless. I was told that the situation was really bad.”

In the weeks that followed, the streets became eerily quiet even after the curfews were lifted. Night-time arrests continued as the security forces began to target political activists.

There were a number of releases, but a large number of monks, peaceful protestors and ordinary civilians remained either detained or still missing.

Hlaing Moe Than added: “The Burmese people have sacrificed thousands of lives in the 1988 uprising to show the world that we wanted democracy. In 1990 again we showed we wanted democracy when the National League for Democracy won the elections. Despite brutal repression in 2007, we showed the world once more that we deserve democracy.

“If the international community doesn’t believe that we deserve a peaceful and responsible democracy, we will continue to make sacrifices for democracy until the end, but the international community will see tragic events unfold in Burma in the future as they have in the past.

“We ask the international community to help us. Don’t leave us on our own. If they [the Burmese government] can’t catch me, they can catch my father or my mother or my brother or my sister.”

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sarily right. It used to be the view that barristers were instructed by professional clients who would not re-instruct those who were ineffective who would, in due course, leave the Bar.

p.1

While it is clear that the market is generally adept at identifying the best barristers, it is not necessarily true that it will weed out the ones who perform less well. Anecdotal evidence from barristers and judges makes it clear that there are people in some areas of the Bar who, in the view of colleagues at least, are not providing the service that their clients need. The advent of public access means that the barrister is no longer always instructed by “sophisticated clients”. Moreover, solicitors often instruct outside their own field of expertise and, it has been argued, weaker solicitors tend to instruct inadequate barristers.

Market forces are not a complete answer.

The BSB’s approach, therefore, is that it needs to be able to identify the under-performing barrister, to help them to improve and, as a last resort or where the risk to the public is too high, prevent under-performing barristers from practising.

So what is on the BSB‘s quality agenda?

The first step in developing a quality assurance system is to identify the core competencies, standards and values expected of a ‘good barrister’. The Bar’s Code of Conduct, the Written Standards for the Conduct of Professional work, together with the ad-hoc guidance on best practice issued by the BSB provides a strong basis for identifying these standards, but there is no stand-alone document which draws the standards together which is accessible to both the public and the profession and which identifies exactly what is expected of a competent barrister. The BSB has decided to develop such a document, which will underpin the rest of its work on quality.

After defining these standards, the BSB needs to find a way of ensuring that barristers meet them. We think that the most sensible way of dealing with this will, in the first instance, be through Chambers and through feedback from clients and others. The aim will be to encourage barristers and Chambers to seek feedback as to how they are meeting those standards and where they need to improve.

The BSB would then seek to monitor that Chambers were doing this. This works in the interests of barristers: all service providers need to be aware of how they are viewed by their clients. By receiving this information they, and Chambers, are likely to benefit by providing a better service and gaining more work. Many Chambers currently adopt this approach.

The BSB considered more heavy-handed methods of looking at quality, including peer review and revalidation. It felt that, at the moment, it would be wrong to introduce these. They would be costly to implement and would not necessarily achieve any more than a Chambers-based approach will.

There are two other areas where further quality assurance may be needed. First, there are

concerns that pupillage does not necessarily provide a consistent quality of training and consistent outcomes for pupils. Many Chambers provide outstanding pupillages. There are others where there may be concerns about the level of training that is provided.

The BSB will be reviewing the pupillage process and looking particularly at the training of pupil-supervisors, the contents of pupillages and the mechanisms for assessing whether or not an individual has satisfactorily completed pupillage.

It has also been suggested that CPD can be an important guarantee of quality. The BSB doubts that CPD in its present form provides this. First, there needs to be greater quality assurance of the courses themselves to ensure that they are at the right level. Secondly, we need to be clear that barristers actually attend courses that suit their needs. A different approach may be needed than the mechanistic “12 hours” requirement. The BSB will be looking at this also.

Finally, the BSB will be looking at ways of identifying risk. In every profession there will be a small number of practitioners who are a danger to the public. We need to establish ways of identifying such practitioners.

This may involve protocols with other regulators, developing systems to identify risk factors and taking another look at whether there should be a professional requirement to report misconduct.

This latter initiative will seek to learn from the experience of the Bar Council’s recently introduced Bar Quality Advisory Panel (BQAP). Under this scheme, members of the judiciary and solicitors will be able to refer the poor performance of a barrister to the BQAP. The Panel has no disciplinary powers and will be able to advise the member of the Bar concerned about his or her work, and how to improve for the future. It is hoped that the Panel will help to raise standards at the Bar. The BSB has expressed its support of the BQAP and will observe with interest how effective it is and whether it could be adapted or adopted by the BSB. To complement its work on quality assuring individual barristers, the BSB is also turning its attention to Chambers. The BSB is currently developing a scheme which will, for the first time, enable it to identify systematically which Chambers are complying with the Code of Conduct and where necessary to take remedial or disciplinary action to address non-compliance. Whilst focussed on Chambers rather than individual members of the Bar it will play an important part in the future development of quality assurance at the Bar. It is intended that the scheme will be piloted in April 2008.

In addition to its own work on quality, the BSB is actively involved in the development of the quality assurance scheme proposed by the Ministry of Justice (MoJ) and the Legal Services Commission (LSC) for publicly funded criminal defence work. The scheme arises from the recommendation made by Lord Carter of Coles in his Review of Legal Aid Procurement that a proportionate system of quality monitoring should be developed for all advocates working in the criminal, fam-

ily and civil courts. It was agreed that the new scheme should be developed in the first instance for publicly funded criminal advocates.

The MoJ/LSC has recently consulted on its proposals for the scheme with a view to running a pilot in 2008. They propose to introduce a grading process for criminal advocates with assessment based on their skills and feedback from solicitors, members of the judiciary and others. Each grade will have a defined competency framework. Types of criminal case will be allocated into each of the grades and barristers will only be able to undertake work within their own grade.

Barristers will have to apply for appointment under a particular grade and can seek to be moved up to a higher grade as their skills develop. The consultation paper proposes that the BSB should have a monitoring role in the scheme to ensure that barristers are being graded in a manner that is consistent and evidence based.

In its response to the consultation paper, the BSB expressed reservations over its role in the scheme and raised concerns generally about how the scheme will operate. These centre on whether the proposed scheme will be transferable across the whole profession and whether it will fit with the BSB’s wider approach to quality. The BSB hopes to continue to engage with the MoJ and the LSC in the development of the scheme to ensure that the two are consistent and do not duplicate.

It is clear therefore that quality is a hot topic.

Initiatives are being developed by a number of bodies and there is a real risk of over-regulation and duplication of quality assurance assessment. The BSB is keen to guard against this. It will develop initiatives on quality that are proportionate and light touch but which have enough robustness to be effective and to carry consumer confidence. In addition, it must not place a heavy burden on the Bar as a whole or prove too costly.

We hope that we have given some insight into the direction that the BSB intends to follow on quality assuring the Bar. It is crucial that the BSB engages with the profession during this process and that barristers are afforded the opportunity to be involved in establishing the standards and values against which they and their fellow members will be measured.

The BSB must work in partnership and not against the profession, for without the approval of the regulated, the BSB will not be able to deliver an effective and defensible system. At the same time, the system must carry the confidence of the wider public who must be satisfied that the profession is serious about continuous improvement, quality and accountability.

We are at the start of a long but exciting road. We look forward to working with you on the journey.

Mark Stobb Director of the Bar Standards Board Oliver Hanmer Head of Standards & Quality

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ISSN 1468 -926 X

Fe atu res CURIOUS TIME 8 JUST S FOR CRIM INAL ICE

What is going on? of rapidly falling Why, during a period is criminal justice official crime levels almost permanent apparently mired in right about crimin crisis? Are ministers what are the implical justice failure? If so, ations?

By Richard Garsi Centre for Crime de, Acting Director, and Justice King's College Studies,

12 THINKING ACROSS THE DIVIDE

Lord Carter’s report heralds a revolution in the way legal aid servic procured. Solici tors and barris es are each been lookin ters have themselves, but g at the implications for to date there little considerat has been ion relationship betwe of the impact on the of the legal profe en the two branches ssion.

By Richard Miller , director, LAPG

PUNISHMENT , PENANCE AND 14 IMPA CT: THE VAG

ARIES OF SENTENCING POLICY. , of bulk proc reorganisatio essing centres Sentencing has n, or pare hbddi] VYb^c^higVi^dc d[ _jhi^XZ never been so for minor offen ntal compens a media issue popular the criminal ders; ation orders as during the justice child of summer 2006. What for those with ren aged 10-y lVh V l^icZhh VcY Vh V gZhjai d[ abiding majoi]gdj\] djg aZ\Va hnhiZb ears-old or unde rity’. reasoned discuhas not surfaced is a criminal dam r who commit ssion of sente The rebalanci age; principles and ncing penal policies. i]Z bVccZg ^c l]^X] ng ]Z isdg h]Z base custody of serio speeding up the retur d on five key prote n to cting the publ us offenders priorities: ic cond who from By ition brea viole Professor Chris s of their ch the victims and nt crime; putti \VkZ Zk^YZcXZ tine Piper, Scho licence; and communities ng commun of Social Scien ol first; building extending ity service. ces and Law, confidence in University public Brunel sentencing; a tight offenders; and er grip on all simple, spee The documen dy, summary t itself contains justice. references to no less than The documen 34 the word ‘toug t, which is This contrasts h’ or ‘tougher’. over 40 page contains 24 markedly to s long, to new proposals just one refer causes of crim . This is just short of the ence e, and that three Hilar record set by is a reference y Armstrong’s Michael How the mid-90s, p.20 UK Gove to responsibility ard, in Excl when he anno rnment for the Socia usion Unit and unced a reba of the system. to open up legal urges South Africa l the need for lancing services mark liaison. et More reform The main p.21 LAPG launc points in the hes Carter discu paper inclu additional 8,00 de an This forum ssion 0 new prison is the third places; unan decisions by major attem imous to refor the Parole Boar pt by New Labo m the criminal d before priso are released; ur justice system. ners attem that Parole Boar pt was in 1997 The first d members shou have experienc Editor: Nigel , with the publ e of being a ld the Crim Simmonds victim; no auto ication of e and Disorder third-off disco 0870 766 2715 matic intro unts for guilt Act, which duced ASBOs, email: info@barris y pleas; the automatic relea termagazine.com parenting orde end to exten se at the halfrs, ded curfews, way point on Publishers: Medi sentenced to sex offender those drug four years or a Manageme orde nt Corporatio rs, more; the intro treatment orde n Ltd Publishing Direc duction up rs and the tor: Derek Payn p.30 setof the youth e justice syste Design and Produ m. It ction: Alan Pritch Camb latest

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The Legal Servi ces Bill: The Bar Standa rds Board Persp The Draft Lega ective l Services Bill carries forward of the reco

iss and Comm , a Law increases system, s In 1999 nded ry damage recomme ents to the if the judicia n em the improv icated that fairer, awards last seven and ind make the not the For ored uld. would ent sho ent has ign ply is not parliam Governm and this sim years ndations recomme ugh , eno sid pre ents good n, yer Langto ry Law Richard Personal Inju By on of Associati IL) (AP D

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