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EASTER TERM ISSUE

The Background Anyone who has followed the story will know the facts, but for those who haven’t, perhaps

I should open with a brief summary of the history of the current proposal.

Following the review by Lord Carter into the way legal services, paid out of the legal aid budget, are procured by the Legal Services TIM DUTTON Commission (and Chairman, Bar Council funded by the Treasury), the LSC began to look at reforms to the VHCC p.32

Features

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At the time of writing, Parts 4 and 5 of the Bill dealing with the proposed offender management system have already been dropped by the government in the face of fierce criticism concerning the lack of guarantees for the independence of the proposed Prisons and Probation Ombudsman. And, by the time you read this, it is likely that the House of Lords will also have significantly amended Part 3 of the Bill relating to criminal appeals.

But the flaws of the Bill are not confined to any one part, nor are they of one kind. They run the gamut, from the largely anodyne but strikingly unnecessary addendum to the law of self-defence

in Part 7, to the sweeping breadth and harshness of ‘special immigration status’ in Part 12. Sadly, given the size of the Bill, this article is only able to survey its more notable faults: criminal appeals, self-defence, extreme pornography, violent offender orders and special immigration status.

Criminal appeals Following on from its 2006 consultation paper, Quashing Convictions, Part 3 of the Bill seeks to implement the government’s proposal that the Court of Appeal should uphold an otherwise unsafe conviction in circumstances where the Court ‘think[s] that there is no reasonable doubt about the appellant’s guilt’1. The Court is similarly enjoined to ‘disregard any development in the law since the date of [an appellant’s] conviction’ if they ‘think it appropriate in all the circumstances of the case’.2 The roots of the proposal, of course, lay in Tony Blair’s determination to ‘rebalance’ the criminal justice system ‘in favour of the law-abiding majority’3, and the Bill was introduced in the 2006 Queen’s Speech (Blair’s last) p.8 with the explicit purpose of preventing

Commentary on the Archbishop’s Lecture The lecture was entitled “Civil and Religious law: the religious aspect” and the main part of the lecture dealt with exactly that issue. How does religion view the divide between secular civil law and religious law?

By Ian Edge, Director, Centre of Islamic and Middle East Law, SOAS, University of London

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How can barristers improve their commercial position?

As a systems analyst working in a broad range of business sectors, I find that compared to the average commercial business a barrister’s chambers’ expends more effort processing debt.

By David Randall, Managing Director of Formation and system architect of InQuisita Law chambers management software

The Criminal Justice and Immigration Bill Yet another wave in the relentless tide of criminal justice legislation, the Criminal Justice and Immigration Bill currently before Parliament is not an easy Bill to wade through. Among its 200-odd clauses and 35 schedules are measures dealing with everything from youth offending, sentencing, extreme pornography, criminal appeals, the law relating to self-defence, violent offender orders and the introduction of ‘special immigration status’ for foreign criminals and their families.

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VHCCs under the spotlight At the time of writing this article, the Very High Cost Criminal Cases (VHCC as they have become known) scheme proposed by the Legal Services Commission (LSC) is the subject of much press discussion. The future viability of the proposed scheme is unknown. Currently, only 130 barristers have signed up to a scheme that requires many more for the scheme to be viable. So why have so few members of the bar agreed to sign up for the most important and serious cases?

Est. 1999

26

Saving for retirement As self-employed professionals, barristers face an interesting array of pension options. Dani Glover, a financial planning specialist at Smith & Williamson, answers some of the questions frequently posed by barristers on how best to save for their retirement.

By Dani Glover, Director, Smith & Williamson

News p.20 Bar Council warns that Best Value Tendering scheme is flawed p.21 Barristers’ Chambers launches Community Fund editor: nigel simmonds 0870 766 2715 email: info@barristermagazine.com publishers: media management corporation ltd publishing director: derek payne Design and Production: Alan Pritchard email: info@soinspire.me.uk Printed by: Labute, Cambridge

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The prison population is now projected to rise to 96,000 (with luck) and 100,000 (without luck) by 2014: that is 18% more than at present

By Anne Owers CBE, HM Chief Inspector of Prisons

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ast week, there were nearly 82,000 people in prisons – except that around 400 of them, on each night of the week, were actually held in court or police cells, because there was simply no space in any prison. This has been typical of the last six months – apart from a dip over Christmas, when the courts were not sitting, the prison population has lurched from one all-time high to another, saved from disaster only by short-term, often expensive, emergency measures and the crisis management skills of those working in the prison system.

The consequences for prisoners and prison staff should not be underestimated. At the most acute level, there was a 40% rise in selfinflicted deaths in prisons last year, reversing the downward trend of recent years, and focused on some of the most vulnerable prisoners – foreign nationals, those who were unsentenced or serving indeterminate sentences, the mentally ill, and those new to custody. In the first weeks of this year, deaths have levelled off, but disturbances and incidents are now weekly occurrences. They reflect the frustration of prisoners who are liable to be shunted round the country like mislaid packages and who are facing longer periods of time in their cells. Prisons rely on dynamic, as well as physical security – and that is dependent on good relationships and purposeful activity.

There are also chronic, but equally important, consequences of an overcrowded prison system. There have been some significant improvements in prisons over the last 10 or 15 years, focused on providing a more decent and positive environment that can help to reduce the obstinately high reoffending rate. So, prison healthcare has improved considerably, now that it is funded and commissioned through the health service – and that, of course, is much-needed, given the well-documented levels of mental disorder among prisoners. Substance use is often linked with mental health, and here too services to detoxify and work with substance misusers – including belatedly those who misuse alcohol – have improved. Education and training, now provided professionally and through local learning and skills councils, focuses much more on employability and filling skills deficits, rather than, as in the past, repetitive and unskilled contract work such as teabag packing. And finally, there has been a focus on resettlement: making

those essential links with the outside world that can provide prisoners with jobs, housing and community support.

All of this is threatened by population pressure. Prisoners are held too far away from their homes, and are liable to be moved around to make space for new arrivals.

This is particularly the case for women and young people, as there are fewer prisons for them. There are more prisoners than there are activity spaces, even in so-called training prisons. The demand for mental healthcare greatly outstrips even the improved capacity there now is. The national roll-out of an innovative and integrated drug strategy programme has been delayed because there are insufficient funds.

The prison population is now projected to rise to 96,000 (with luck) and 100,000 (without luck) by 2014: that is 18% more than at present, and a near-doubling over 20 years. At the same time, over the next three years, the Prison Service is required to make 3% year on year ‘efficiency savings’ (i.e. cuts), and the first fruits of that will appear on 1 April, when prisons will effectively close down from Friday lunchtime to Monday morning, with the exception of short periods of association. I have not yet met a prison governor who does not believe that this will reduce the amount of purposeful activity they are able to offer prisoners, and increase the likelihood of order and control problems.

The immediate response, apart from police and court cells, may see the return of the prison ship, rapid conversions of unsuitable army camps and more overcrowding. On the horizon loom the Titans – 2,500-strong prison complexes, flying in the face of our, and others’ evidence that smaller prisons work better than large ones. The French tried building such a large multi-purpose prison in the 1990s just outside Paris, but never did so again because it proved too complex to operate effectively – but at a time of restricted public funding and inexorably rising numbers, the temptation is to go for efficiency, rather than effectiveness. There is a real risk that we will have more, but worse, prisons.

Yet at the same time, prisons will suck in resources and energy that could be used to provide effective alternatives, and which are essential to support people once they leave prisons. Without such support, prisons will

inevitably continue to have revolving doors.

What is the logic, for example, in providing the Justice Ministry with £30 million to spend on unsuitable and potentially unsafe police and court cells, rather than investing in the kind of mental health provision, outside prison, that would make their presence there unnecessary?

It is clear that Ministers do not want to be in this situation, nor did they plan it. That indeed is part of the problem. The current crisis was predicted, and predictable: in line with the projections of the Home Office (now the Ministry of Justice)’s own research department. It has been fuelled by legislation and policies which ignored consequences, cost or effectiveness, together with a lack of coherent strategic direction.

The example of indeterminate sentences for public protection is perhaps the best example of this. Originally designed to provide a mechanism for continuing to detain high-risk and dangerous offenders (such as Michael Stone, the murderer of Lin and Megan Russell), its scope was extended to cover 152 different offences: from voyeurism to rape, and from violence in resisting arrest to manslaughter.

Like life sentences, IPP prisoners were given a minimum period of imprisonment (the tariff), and would only be released thereafter if they could show that the risk they were held to pose had been reduced – for example by undertaking an offending behaviour programme or course. Even after release, they would be subject to 10 years’ probation supervision in the community, during which they could be recalled at any time on the basis of risk.

Once the scope of the sentence was known, the Home Office research department accurately predicted that there would be around 2,000 IPP prisoners within the first 15 months. Some, inevitably given the scope of the sentence, had short tariffs – now averaging around 38 months, and in one case as low as 28 days. Yet there was no planning, within what was now the National Offender Management Service (comprising prisons and probation), for how this population was to be managed in a prison system that was already overcrowded.

In practice, those prisoners have stayed for months, or sometimes years, in local prisons, which do not provide the programmes and courses they need to show that risk has reduced: some of them well beyond their initial tariff period

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– by the beginning of this year one in ten had already passed tariff. The consequences for those prisoners, and for the prison system, have been dire: they are both victims of, and contributors to, the current overcrowding crisis. There are now nearly 4,000 of them, and in the words of the Court of Appeal1 There has been a systemic failure on the part of the Secretary of State to put in place the resources necessary to implement the scheme of rehabilitation necessary to enable the relevant provisions of the 2003 Act to function as intended. So far as the two respondents are concerned the appropriate remedy is limited to declaratory relief. For the reasons that we have given, however, the prevailing situation is likely to result in infringement of Article 5(4) and may ultimately also result in infringement of Article 5(1).

IPP sentences are not the only drivers of the prison population: so are mandatory minimum sentences, lengthy mandatory tariffs for murder, limitations on bail, and an increasingly risk-averse Parole Board and Probation Service. It is a political decision as to how far any or all of those are necessary for public protection: but if so, it is also a political responsibility to cost and provide for their consequences.

Alternatively, of course, resources could be provided for alternative, and potentially more effective,

ways of protecting the public, by tackling the fundamental problems that lead to, and are likely to cause repeat, offending.

The paradox of having better prisons, that are able to provide positive interventions and a more decent environment, is that society (and sentencers) may feel more comfortable sending people there. Prison can come to seem, and indeed for some people can be, a place where they can have good done to them.

But it is not meant to be a capacious social service. Essentially, prisons are mirrors, which reflect what is going wrong, or what is not happening, outside their gates. And unless we grapple with that, we will simply carry on endlessly and expensively recycling prisoners.

My Annual Report for 2008 does make somewhat depressing reading – not least because it shows what can be done in a prison system where resources and demand are more evenly matched. But it does record recent signs of a more measured and effective approach to policy and strategy, as well as considerable consensus about the links between criminal and social justice and the need for prisons to be purposeful.

Royal Commissions and public inquiries are unfashionable. They can be cumbersome, expensive and lengthy – but, when they are effectively led, they can allow thoughtful, reasoned and evidence-based debates on key

aspects of public policy. They are particularly important in areas of live and politically sensitive public policy, where there is a tendency to react to events, and where the pressure on officials can be, as one of them recently said, to supply harassed Ministers with ‘policy-based evidence’. By contrast, the 1991 Woolf report was able to establish evidence-based penal policy for the late 20th century. As things stand now, we very much need a Woolf report for the 21st century.

you be the judge.

1 Secretary of State for Justice v. Walker [2008] EWCA Civ 30 (01 February 2008)

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06

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30 Years on from the Phillips Commission on Criminal Procedure Speech given by Sir Ian Blair to the Criminal Bar Association on 12.2.08

O

ne of the stories I like to tell about policing is that of a young police officer caught up in a riot. As a rain of bricks and bottles fall upon him, he turns and runs.

He eventually bumps into a dark tall figure.

Without looking up, the young man says “I’m sorry Sarge: I just couldn’t take it anymore”.

The voice from above him says “This isn’t your Sergeant son, this is the Commissioner”.

to your sister organisation, the Criminal Law Solicitors Association in 2001.

The reason for those two dates is that I made my first arrest in 1975, whereas 1985

Late one afternoon, a man arrived at Kentish Town police station and spoke to the station sergeant and handed him a court order.

Although the Sergeant did not open this, it was a high court writ of habeas corpus. The sergeant reacted with commendable despatch and placed it in the correspondence tray for the CID, to be picked up in the morning. At about midday the next day, the high court tipstaff arrived and DS Holmes found himself in the Royal Courts of Justice at about 2

To which the reply comes, “good grief! I didn’t know I had ran back that far!”

was the first full year in which the Police and Criminal Evidence Act came into force.

Policing and, indeed, Criminal Justice was pretty rough in 1975: guidance to the police about the rights of suspects were rudimentary and there should be no doubt that it was possible to observe fairly widespread laxity across the whole Criminal Justice System, police, lawyers both for prosecution and defence and magistrates and judges, based on an unstated view that it was important the correct people were locked up, albeit it was not always necessary that there was any sustainable evidence that they had committed the particular crime for which they were appearing in Court.

o’clock, before a very angry Judge. Holmes, an officer of considerable experience, was asked as to whether he was aware of the Judges Rules, which for the younger of you here were the only procedural guidelines for police investigation. He replied that he was.

The Judge asked him whether he was aware of the fourth section of the preamble to the rules which made clear that, when a police officer had sufficient evidence to charge an individual, that individual should be charged and placed before a Magistrate at the earliest opportunity. With commendable sang froid, Holmes announced that that part of the Judges rules had never been bought to his attention before.

The Phillips Commission arose, as most of you will know, from the murder of Maxwell Confait in 1972, convictions for which were quashed at the Court of Appeal in 1975, amid allegations of brutality by police and the fabrication of evidence.

The Phillips Commission led to the enactment of the 1985 Prosecution of Offences Act and the 1984 Police and Criminal Evidence Act. I shall begin with the latter, a very regimented approach to police investigations and to custody. It was designed to prevent the kind of casualness I have just described, the possibility of brutality or of fabrication of interview and to introduce measures for the protection of prisoners, including access to legal advice, periods of rest and placing strict responsibilities for record keeping on police officers of the different ranks of sergeant, of inspector and of superintendent. The mindset was undoubtedly that the police were not to be trusted and had to be rigorously restrained from widespread malpractice.

This evening, I stand here in front of a group of expert practioners, talking about their subject, possessing very little recent experience myself. Although, unusually, I have given evidence in criminal trials both as an Assistant Chief Constable and as a Chief Constable and much of my early career was as a detective, it is many years since I led an investigation or became involved in the cut and thrust of the courtroom. Although it is yours, that is no longer my task in life. I thus stand a bit further back.

So, if you want a discussion about the minutiae of different parts of the criminal law or an opportunity to discuss private grief about the Legal Services Commission, or “very high cost cases”, I fear you may be at the wrong lecture. What I am going to do this evening is to reflect a little on whether the overall framework in which Criminal Justice operates in England and in Wales is still appropriate: in particular, whether the mental construct which the Phillips Commission laid down in 1981, after four years of deliberation, is helpful or unhelpful to the way in which the criminal justice system works thirty years later on.

In doing that, I intend to pursue two themes, which would not necessarily have been at the forefront of Phillips thinking: first, the overall efficiency of the system, in terms of cost, and, whether secondly, particularly at the lower level of offending, the system is focussed sufficiently on social, rather than legal outcomes. In the second regard, I am returning to the content of a speech I made

A little bit of audience participation, please: can I have a show of hands as to how many of you were practicing in 1975? And now how many of you did not begin practice until 1985 or afterwards?

One of my favourite stories about the looseness of control comes from 1981. From what I remember - and these stories may grow in the telling - a rather marvellously named Detective Sergeant Holmes worked at Kentish Town Police Station. He was responsible for the arrest of what we would term a really good burglar, caught red handed. For some reason, which I don’t think involved any malpractice, the burglar decided to tell all and Holmes sent a message to surrounding forces and to the then Regional Crime Squad that this man was in custody and seemed likely to admit to offences all over the south east of England. The prisoner remained, uncharged, at Kentish Town and individual officers turned up as their diaries permitted.

My first major point this evening is that, were a Royal Commission to report this year, this would not be its opening position.

However, that mental construct has p.10 affected almost every subsequent piece of legislation about criminal

08 p.1

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the Court of Appeal from quashing the convictions of those who were ‘plainly guilty’ on ‘technicalities’.4

The proposal, of course, betrays a profound lack of understanding concerning the role of the appellate courts in criminal cases. The Criminal Division of the Court of Appeal is a court of review, not of rehearing. Not only is it not its function to make factual determinations about an appellant’s guilt or innocence, but it is plainly not equipped to do so (least of all in the absence of a jury).

More fundamentally, the government’s proposal misapprehends the importance of legality in the criminal process. The role of the courts is not to deliver justice by any means but justice according to the law. The idea that the Court of Appeal should be able to uphold a conviction notwithstanding a serious procedural irregularity – such as the fabrication of evidence or the obtaining of a confession by oppressive means – would compromise the role of the courts themselves.

Just as the Appellate Committee of the House of Lords rejected the use of evidence obtained under torture on the basis that ‘it corrupts and degrades the state which uses it and the legal system which accepts it’,5 it would bring dishonour to British courts to uphold an unsafe conviction wrought by serious illegality.

In the House of Commons, the government accepted an amendment to the proposals to the effect that the Court of Appeal would not be required to dismiss an appeal ‘if they think that it would seriously undermine the proper administration of justice to allow the conviction to stand’ (clause 42(2).6 The formulation, however, invites the possibility that something could undermine the proper administration of justice but not in a ‘serious’ way. The prospect of the Court being involved in such an absurd exercise is not an appealing one.

Self-defence The use of reasonable force in self-defence is an area of law that has been extremely wellsettled for many years. As the then-Lord Chief Justice, Lord Woolf explained in 2001:7 A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property.

The definition of what counts as ‘reasonable force’ is a question for the jury.8 Despite this

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admirable clarity, the Justice Minister Jack Straw in 2007 announced a review of the law relating to self-defence arguing that ‘too many unnecessary police investigations take place. I want to make the law clearer’.9 Hence clause 128 of the Bill deals with ‘reasonable force for purposes of self-defence’.

Although there is a legitimate complaint concerning the existing law, where a person found to have acted honestly in self-defence but used an unreasonable amount of force is guilty of murder rather than manslaughter, this is not the mischief addressed by clause 128. Instead, it requires a jury considering the issue of reasonable force to have regard to the fact that those acting in self-defence ‘may not be able to weigh to a nicety the exact measure of any necessary action’.10 So far, so obvious. But it also requires juries to consider that:11 a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.

Far from adding clarity to the existing law, this clause converts a common sense observation (i.e. what a person honestly and instinctively thinks is necessary is, generally speaking, reasonable) into an abstruse formulation that is likely, in the long run, to add nothing but exegesis for the prosecution and defence to quibble over. It is difficult to avoid the conclusion that this is a change in the law not for the sake of its own clarity or fairness, but for the sake of the Justice Secretary’s press profile.

Extreme pornography Clause 113 introduces a fresh offence of possessing an ‘extreme pornographic image’.

An ‘extreme’ image is defined as one that involves or, more tellingly, ‘appears to involve’ a variety of acts ranging from things like bestiality or necrophilia to those ‘likely to result … in serious injury’.12 It is worth noting that much of material covered by the definition of ‘extreme pornographic material’ is already covered by other criminal offences. For instance, possession of obscene material within the meaning of the Obscene Publication Act 1959 is an offence, where the possession is for the purposes of ‘publication for gain’. Similarly, the production of violent pornography (involving ‘an act which threatens … a person’s life’ within the

meaning of clause 113(6)(a)) would already constitute a criminal offence.

However, the sheer vagueness of the definition of ‘extreme’ pornography goes well beyond the possession of material whose production and distribution is already unlawful. In particular, the inclusion of acts ‘likely to result … in serious injury’ in clause 113(6)(b) would arguably make possession of the Karma Sutra a criminal offence. Although there is undoubtedly a real public interest in preventing the production of pornographic material involving coercion or serious physical harm to participants, such an over-inclusive definition of ‘extreme’ images seems likely to constitute a disproportionate interference with the right to free expression under Article 10 ECHR.

Violent offender orders Given the growing reliance upon quasi-civil orders to combat everything from littering (ASBOs) to involvement in terrorism (control orders), the introduction of Violent Offender orders (‘VOOs’) in Part 9 of the Bill should come as little surprise.

VOOs can be made against any person convicted of serious violent13 offences and sentenced to at least 12 months in prison.14 They are made on application by a senior police officer to a magistrate’s court,15 and may be made so long as the magistrate is satisfied that the subject of the proposed VOO has:16 acted in such a way as to make it necessary to make a violent offender order for the purpose of protecting the public from the risk of serious violent harm caused by [him].

There is no restriction on the kinds of prohibitions or restrictions that may be imposed upon an individual subject to a VOO, other than that the court must deem them ‘necessary for the purpose of protecting the public from the risk of serious violent harm caused by the offender’.17 In other words, even an 18 hour curfew – something beyond the scope of a non-derogating control order under the Prevention of Terrorism Act 2005 – could be a valid restriction under a VOO. As with other kinds of civil orders designed to address various forms of criminality, breach of a VOO is a criminal offence.18 There is no maximum period for which a VOO can be imposed, and no time limit on how long ago the conviction could have occurred (including offences committed as a minor).

Special immigration status Part 12 of the Bill introduces a new ‘Special Immigration Status’ intended for those foreign nationals who fall within the definition of ‘serious criminal’ under section 72 of the Nationality Immigration and Asylum Act 2002,19 are liable for deportation but who cannot be removed from the UK on human rights grounds.20 It can apply, however, not only to such persons but also to any of their family members in the UK (unless they themselves have right of abode).21 Significantly, Special Immigration Status can also apply to those within the definition of Article 1F of the Refugee: those convicted of non-political crimes abroad but also those who ‘there are serious reasons for considering’ have committed such crimes.22 In other words, Special Immigration Status can apply to foreign nationals merely suspected of criminal offences and their family, as much as it applies to those actually convicted of such offences.

At present, foreign nationals in this category are only entitled to discretionary leave to remain every 6 months, but become eligible after 10 years to seek permanent leave to remain (although it still may be refused by the Home Secretary where ‘conducive to the public good’). One effect of special immigration status under Part 12 is that time spent under it will not count towards any entitlement to seek permanent leave to remain.23 In addition, Part 12 grants the Home Secretary powers to impose sweeping restrictions on those subject to special immigration status, including restrictions on residence, employment and the requirement to report to authorities on a regular basis.24 They are also subject to a different support regime than other failed asylum seekers.25 Although Special Immigration Status relies upon the definition of ‘serious criminal’ under the 2002 Act, unlike that Act it does not allow an individual to rebut the presumption of dangerousness (including the fact that a conviction is under appeal).

Even more astonishing, despite the fact that the status is ultimately premised on ‘dangerousness’ under the 2002 Act, there is no requirement upon the Secretary of State to demonstrate any kind of necessity for making an individual subject to Special Immigration Status (especially where the individual has not been convicted of an offence, or is a family member). In a Bill already rife with

unnecessary and disproportionate measures, the arbitrary and punitive quality of Special Immigration Status deserves to be singled out for special, dishonourable mention.

Conclusion Even the most poorly-thought-through Bill, however, usually contains some measure of good and the Criminal Justice and Immigration Bill is not without its own limited merits. Clause 124, for instance, introduces rehabilitation orders for streetwalking; clause 129 beefs up the sanctions for unlawfully obtaining personal data; and clause 174 allows for the review of ASBOs made in respect of children and young persons. Even the introduction of the Prisons and Probation Ombudsman, handled so badly, is an important reform that still needs to be taken forward.

It is also worth noting that the most egregious features of the Bill are those holdovers from the previous Prime Minister who, despite being a barrister, had famously little time for the traditional checks and balances of the criminal justice system. It may be too soon to say or too much to hope that criminal justice policy will improve for the better under Gordon Brown but time will surely tell.

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the jury has to take into account all the circumstances, including the situation as the defendant honestly believes it to be at the time, when he was defending himself. It does not matter if the defendant was mistaken in his belief as long as his belief was genuine.’

9 BBC News, ‘Self-defence law to be reviewed’,

27 September 2007.

10 Clause 128(5)(a).

11 Clause 128(5)(b).

12 Clause 113(6)(b).

13 Clause 148(3) specifies the qualifying

offences as manslaughter; soliciting murder; wounding with intent to cause grevious bodily harm; malicious wounding; or attempted murder or conspiracy to commit murder.

14 Clause 149(2) and (4).

15 Clause 150.

16 Clause 151(2)(b).

17 Clause 148(1)(a).

18 Clause 164.

By Dr Eric Metcalfe, barrister, director of human rights policy, JUSTICE

19 Section 72 covers those either convicted

and 43 (Northern Ireland).

in the UK and sentenced to at least 2 years imprisonment (s72(2)) or convicted abroad of an offence for which he could have been convicted in the UK (s72(3)).

2 Clauses 44 (England Wales and Scotland)

20 Clause 181(2).

1 Clauses 42 (England Wales and Scotland)

and 45 (Northern Ireland).

21 Clause 181(3) and (4).

3 Home

Office, Criminal Justice System Review: Rebalancing the criminal justice system in favour of the law abiding majority (July 2006).

4 See e.g. BBC News, ‘Reid rethinks strategy

22 Clause 182(4).

23 Clause 183(2).

24 Clause 184(2).

on louts’, 15 November 2006.

25 Clauses 185 and 186.

5 A and others v Secretary of State for the

Home Department [2005] UKHL 71 at para 82 per Lord Hoffman [emphasis added].

6 Inserting section 2(1B) of the Criminal

Appeal Act 1968.

7 R v Martin [2001] EWCA Crim 2245, para 4,

emphasis added.

8 Ibid, para 5: ‘In judging whether the

defendant had only used reasonable force,

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investigation since 1981, with the odd exception of the abolition of the unqualified right to silence.

but praise for the professionalism and ethics of the officers involved in the very serious cases which pass before them.

In the interim, the following things have changed: -

I am not sure that there are many changes that need to be made to PACE, although one of them would be to change the so- called PACE clock. This would mean that periods of rest, waiting for legal representation, medical examination or the arrival of an appropriate adult should not count towards detention time because, for as long as they do, they unnecessarily bring forward the bureaucracy of the different stages of review and the consequent paperwork and officer time involved in those.

p.6

•

• • •

All prisoners in police custody, without exception, have access to legal advice; All investigative interviews are tape recorded; Almost all custody suites are video recorded; A complete generation of police officers have known no other regime.

The effect is that the system is clean: The Metropolitan Police Service was involved in 319,000 arrests in 2006/7, whereas 275 people (or 0.08% of those involved) made complaints about breaches of PACE. When I went recently to lunch at the Old Bailey, the judges were unanimously of the view that the dark side of the world in which we had grown up had passed and they had nothing

largely need to be dealt with in the same way, regardless of seriousness.

Excluding prisons, the Criminal Justice System costs over £10 billion per annum, in which figure the Office for Criminal Justice Reform includes £5 billion as costs of police activity. That is the sum with which a new Royal Commission would be concerned and part of that sum arises from this point of departure.

This article runs to 4000 words, the full version of which can be accessed at www.barristermagazine.com/articles/blair.doc

It is not PACE itself which is the principal concern: it is the mental construct of PACE, which was equally reflected in the sister Prosecution of Offences Act, which created the CPS, and continued to underpin the Criminal Procedure and Investigations Act 1996 and the Regulation of Investigatory Powers Act 2000. All of these are characterised by the same view that the police service needs to be constrained and confined and that all cases

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12

the barrister

the barrister

The purpose of the criminal justice system

But on their own, procedural debates offer

between a liberal and a Marxist view on the

the ways in which criminal justice might

little insight into the social context and

nature of social conflict and its resolution:

both regulate and manage underlying social

political-economic structures within which

By Richard Garside, Director Centre for Crime and Justice Studies King’s College London

W

hat is the purpose of

the

justice

With their appeal to a utilitarian efficiency

hand, places at least as much emphasis on

criminal

and an instrumental logic – protecting the

protecting the rights of the innocent as it

system?

innocent and punishing the guilty – these

does on convicting the guilty. The protection

Consult the official

statements offer a picture of criminal justice

of individual liberty in the face of a potentially

website – www.

as being in the business of crime control. The

over-powerful state is a key preoccupation of

cjsonline.gov.uk

challenge is one of effectiveness.

the due process model.

– and you will read the following under the ‘aims and objectives’ section:

A rather different note was struck by

Packer’s contrast between crime control and

Jack Straw in his first major speech as

due process was developed in the context

‘The purpose of the Criminal Justice

Lord Chancellor

in July 2007. What was

of the US criminal justice process. Yet it

System… is to deliver justice for all,

‘fundamental to the welfare and happiness’

is possible to consider recent debates on

by convicting and punishing the

of citizens, he argued, was strong public

criminal justice in England and Wales in the

guilty and helping them to stop

institutions, properly managed, ‘and above

categories he developed.

offending,

while

protecting

the

innocent.’

Or consider the following, from Working

all whether all… citizens, poor or rich, low or high got justice against the powerful,

Of course crime control and due process

and the state.’ He went on to draw out the

logics are not pristine and mutually exclusive.

implications for the justice system:

The very fact that Jack Straw can both

Together to Cut Crime and Deliver Justice,

express due process concerns, while also

the criminal justice strategic plan published

‘We are blessed in the United

in November 2007: ‘The central purpose of the Criminal

being a senior minister responsible for the

Kingdom by a judiciary whose

implementation of the government’s criminal

integrity,

justice strategy suggests as much.

independence,

professionalism and skill are not

Justice System is to deliver an

in question. But we take such a

But disputes between crime control and

efficient, effective, accountable and

condition for granted at our peril.

due process considerations tend also to boil

fair justice process for the public.’

Justice is a delicate plant. It has to

down to questions of degree and emphasis.

(13).

be nurtured, protected, cared for.’

Crime control advocates might argue that a misguided attachment to certain protections

A similar tone was set by the ‘Policy Green

The justice system on this account presents a

historically afforded to suspects hampers

Paper’ published in early March by the

bulwark against the potentially overweening

convictions. But the principle of appropriate

Conservative Party, entitled ‘Prisons with

power of the state and other vested interests.

protections is not, generally, denied. Due

a purpose’. Replete with crime control

A concern for due process, checks and

process advocates might champion enhanced

aspirations, the paper observed, in relation

balances, core values and an underlying

protections for suspects in police custody.

to prisons:

institutional strength inform this perspective,

But one would have to search hard to find

‘Prisons in

three

should

reduce

principal

incapacitating

crime

ways:

offenders,

rather than the pragmatic appeal to the

someone who would oppose any questioning

effective and efficient control of crime.

of suspects in police custody.

by by

It was the American legal scholar Herbert

The debate over the appropriate balance

punishing and thereby deterring

Packer who first proposed that the competing

between due process protections and the

others who would commit crimes,

logics of ‘crime control’ and ‘due process’

crime control imperative, in other words,

and by rehabilitating offenders.’

exercised varying influence on the operations

tends to be dominated by disagreements of

(27).

The main challenge was that of making the

of the US criminal justice process. Under the

a largely procedural kind. Such procedural

crime control model, the underlying logic of

debates are obviously vitally important.

the criminal justice is to contain and repress

A society that shows indifference to the

prisons system and the processes associated

criminal

criminal

processes by which those deemed to have

with dealing with prisoners more effective

detection, prosecution and conviction are

breached the laws of the land are dealt with

and efficient.

behaviour.

Successful

hallmarks of an effective criminal justice model. The due process model, on the other

is unlikely to be a society in which the rights of individuals are respected.

13

antagonisms is likely ultimately to lead to bad

the criminal justice process operates. In

‘In the liberal view of politics, conflict

order to explore this question, consider the

exists in terms of “problems” which

following definition of criminal justice, taken

need to be “solved”. The hidden

References

from Andrew Sanders and Richard Young’s

assumption is that conflict does

Conservative Party (2008), ‘Prisons with a

standard textbook on the subject. Criminal

not, or need not, run very deep;

purpose: Our sentencing and rehabilitation

justice, they write:

that it can be “managed” by the

revolution to break the cycle of crime’.

exercise of reason and good will,

Security Agenda Policy Green Paper No. 4.

‘is… a complex social institution

and the readiness to compromise

London: Conservative Party.

which regulates potential, alleged

and agree... The Marxist approach

and actual criminal activity within

to conflict is very different. It is not a

Miliband, R. (1977/2004), Marxism and

procedural

to

matter of “problems” to be “solved”

Politics. London: Merlin.

wrongful

but of a state of domination and

protect

limits

people

supposed from

Ultimately,

policy and dubious outcomes.

treatment and wrongful conviction’

subjection...

stability

OCJR (2007), Working Together to Cut Crime

(1).

is not a matter of reason but of

and Deliver Justice: A Strategic Plan for

force... and the notion of genuine

2008-11. London: Office for Criminal Justice

Criminal justice practices, they go on to

harmony is a deception or a

Reform.

note, ‘are inherently coercive’ (4). This

delusion.’ (18,19).

focus on criminal justice as a set of often

Packer, H. L. (1968), The Limits of the Criminal

coercive social regulatory institutions, and

The reason for quoting Miliband’s analysis is

not merely a collection of ‘crime fighting’

that it implies a rather different take on the

agencies, throws a spotlight on the broader

purpose and nature of criminal justice. From

Sanders, A. and Young, R. (2007), Criminal

social purpose of criminal justice, rather than

a Marxist perspective - at least if we take

Justice.

merely considering its operations within the

Miliband as the reference point - the purpose

University Press.

framework of a fight against crime versus the

of criminal justice might be characterised as

protections afforded suspects.

the ongoing maintenance of class domination

Straw, J. (2007), ‘Lord Mayor’s annual judges

by means of coercive force, legitimated by

dinner’. July 17. www.justice.gov.uk/news/

But then criminal justice, as a social regulatory

legal norms. Thus, of the four functions of the

sp180707a.htm.

set of institutions, operates within a society

capitalist state identified by Miliband the first

characterised by notable inequalities in

of them is the maintenance of law and order;

wealth and power. What is the implication

what he dubs ‘the repressive function’. The

of this for the operations of criminal justice?

‘state is always involved’ in the processes

For Sanders and Young they are very clear.

of criminal justice, Miliband argues, if only

‘[I]n a society in which power, status and

because it defines the nature of ‘legal norms

wealth are unequally distributed along lines

and sanctions’ (94).

such as age, gender, race, and class, much criminal justice activity will compound wider

It is not necessary to subscribe to Miliband’s

social divisions,’ they write. They go on to

politics, nor Sanders and Young’s liberalism,

argue that the ‘enforcement of the criminal

to acknowledge the critical purchase they

law… reinforces a hierarchical social order

offer to an understanding of criminal justice.

which benefits some while disadvantaging

In different ways they pose the challenge to

others.’ (3-4).

take seriously the relationship between social structures and social processes on the one

Now Sanders and Young are hardly red in tooth

hand, and normative principles in relation to

and claw revolutionaries. Their scholarship

criminal justice on the other.

sits squarely within the parameters of liberal critique. But while liberal scholarship has

A concern with the appropriate principles

many strengths, it also has its limitations.

and priorities that guide the operations of

Take, for instance, the perspective set out by

the criminal justice process remains and

the Marxist political scientist Ralph Miliband

important and necessary task. But a theory of

over thirty years ago, on the differences

criminal justice that does not take seriously

Sanction. Stanford University Press.

Third

Edition.

Oxford:

Oxford

14

the barrister

the barrister

Commentary on the Archbishop’s Lecture The lecture was entitled “Civil and Religious law: the religious aspect” and the main part of the lecture dealt with exactly that issue. How does religion view the divide between secular civil law and religious law?

By Ian Edge, Director, Centre of Islamic and Middle East Law, SOAS, University of London

A

s a co-organiser of the Lecture and Discussion Series “Islam in English Law”, announced in the Times on Tuesday 5th February 2008, and which was inaugurated by the Lecture of the Archbishop of Canterbury on Thursday 7th February before an invited audience of more than 1000 people in the Great Hall of the Royal Courts of Justice, I have been surprised and appalled in equal measure by the media and public reaction to what the Archbishop said or is supposed to have said. Having been at the lecture and seen a copy of its written text I would like to make a reasonable comment on what he actually said.

First, however, it must be made clear what the Archbishop did not say. He did not say that the application of Shari’a as a parallel legal system in the UK was unavoidable or inevitable.1 Nor did he say that he favoured the setting up of such a parallel system of Shari’a courts in the UK applying the full panoply of Shari’a law to Muslims in the UK whether consensually or not.2 He did not say that any part of the criminal law of the Shari’a should apply in the UK and in fact hardly mentioned criminal law at all. He did not say that he thought that Shari’a law should apply in the UK to Muslims against their will.

The lecture was entitled “Civil and Religious law: the religious aspect” and the main part of the lecture dealt with exactly that issue.

How does religion view the divide between secular civil law and religious law (where it exists) and how should a Christian react to calls by other faiths for the accommodation of more religious sensitivities into the law? The Archbishop posed the question3 whether an essentially secular legal system based upon the application of so-called universal human rights could, or indeed should, have regard to the religious sensibilities of its citizens so that some form of accommodation is made for them. He posited the idea that human rights were ultimately based upon a notion of universal human dignity which should give rise to both permissive as well as prescriptive regulations in any society. While the law strictly provided a basis for prescriptive regulations it left open the possibility

of permissive regulation: what he called its negative aspect. Thus, on the basis of the rights of freedom of expression and religion, there should be space within the confines of the law to accept that some accommodation could be made for a person’s religious sensibilities. He developed this idea by referring to the political reality in a multi-cultural society where people have a number of overlapping social identities so that the concept of a single concept of citizenship where a “secular government assumes a monopoly in terms of defining public and political identity” is to his mind “very unsatisfactory”.

Having set the theoretical scene the Archbishop then considered the consequence of how a “supplementary jurisdiction” might work and discussed various objections to his analysis. To prevent “vexatious appeals to religious scruple” then a recognized authority would need to be referred to but he recognized that this was difficult for Islam which unlike Christianity or Judaism did not have a single authority. Furthermore, although his arguments were meant to produce a situation where religious persons did not have to choose between state law and their religious sensibilities (particularly where they felt that there was a religious duty; to be distinguished –with difficulty- from mere cultural obligations) he was careful nevertheless to say that any accommodation could only occur within the confines of existing British law. He made this explicit by giving the example that inheritance law under a religious law which sought to give women less rights than existed under British law could not be countenanced and in the questions at the end of the lecture he was firm that polygamy could not be accepted for the reasons that British law “assume[s] as axiomatic certain attitudes to the rights of women which are not readily compatible with the practice of polygamy”. Thus, any accommodation could not detract from existing rights under British law.

By not referring to criminal law the Archbishop, at least by implication, indicated that the area of accommodation for a possible supplementary jurisdiction was limited. In fact, he suggested three areas where there could be such an accommodation: marital obligations, Islamic financial transactions and conflict

resolution. In relation to two of these the accommodation suggested by the Archbishop already occurs in practice. Islamic financial transactions have been recognized in English law and given the green light by the Treasury which now has an Islamic Finance section.

Ed Balls in a speech on 30 January 20074 said the aim of the Treasury was to make the UK “a global centre for Islamic Finance” and explained that “since the Bank of England’s first Working Part in 2002 and the Finance Act 2003, when the Government started shaping the tax and regulatory framework to allow for the development of Islamic Finance products, the market has grown from strength to strength”. Referring to the legislative change made to stamp duty to facilitate the market in Islamic mortgages he said, “In 2003 we removed the double stamp duty land tax charge on murabaha and ijara based mortgages, enabling at a stroke the explosion in Islamic home finance”.

This of course was more than an accommodation of the type considered by the Archbishop because this did require a change in English law via the Finance Act, because Islamic mortgages work on the basis, not of a single transfer of title from vendor to purchaser, but two legal transfers from vendor to Islamic Bank and at the end of the mortgage from Islamic Bank to purchaser. Without the amendment to the stamp duty charge there would be an inequity between conventional and Islamic mortgages which could act as a financial brake on their formation. Recent Finance Acts have also provided for the taxation of other Islamic financial transactions and by so doing have regulated and permitted them. Let it not be said that this is done purely out of a desire to assist the Muslim community; the prime reason is clearly economic. The promotion of Islamic Finance is good for the British economy and numerous Islamic Banks and financial institutions have been set up on the back of this Treasury support. Such Banks are licensed to operate as UK institutions and the transactions they enter into are ultimately governed by English Law no matter how they are designated.

In fact recent decisions of the English High Court have held that the English courts will not accept Shari’a law as the sole applicable law to a contract.5 Thus the accommodation

suggested by the Archbishop in the area of Islamic Financial transactions already occurs.

Islamic Financial transactions are permitted within the framework of and subject to English law.

Similarly in the area of dispute settlement, if Muslim parties wish to settle their civil, not criminal, disputes, they may do so according to Islamic procedures. If they wish the resulting decision to be recognised and enforced by the courts the adjudication must comply with the provisions of the Arbitration Act 1996. If it does so it will be considered to be an English arbitration and enforced as such notwithstanding that it is also seen by the parties as a Shari’a compliant settlement. If it does not comply with the Arbitration Act then it will not be considered as having any legitimacy in English law. Recent High Court cases in England have considered such Islamic dispute settlements and accepted or rejected recognition according to whether they complied with the Arbitration Act.6 Thus again the Archbishop was referring to another area where there is already a possible accommodation of the type he considered.

The area of marital obligations is however one where there is no such accommodation at present.

Although Church of England, Jewish and Quaker marriages are recognised as British marriages under the Marriage Act 1949, Muslim religious marriages are not. This has the unfortunate consequence that persons who only have a Muslim marriage are not considered as being married under British law with the result that they cannot call upon the courts if the marriage subsequently breaks down. This is an area where change would affect a large number of Muslim women to their inestimable benefit.

However, in the religions mentioned above a registration process has in effect been incorporated into the marriage ceremony with the officiant being the registrar. This may be difficult to achieve in the Muslim community which, as the Archbishop appreciated, was a fragmented one in terms of authority and even law as there are a number of different and yet legitimate expressions of Islamic law.

There is also the issue of Muslim divorce; but accepting the validity of Muslim marriages does not necessarily have to mean the acceptance of Muslim divorce as none of the aforementioned religions are permitted this privilege. British law applies to all divorces in the UK because it is an area which is seen as involving public rights and obligations in which the state has an interest, particularly if there are children. Recently a change was proposed to European law whereby divorces in Europe should be awarded according to the rules and principles under the law of the

nationality of the parties; the UK has consistently rejected this approach to divorce and opted out of the resultant draft regulation. It is a clear rule of British law that all divorces in the UK must be obtained in the courts which will apply British law. The Archbishop clearly supported this view in his attitude to polygamy. Some religious communities do assume jurisdiction to grant religious divorces, such as the Jewish Beth Din as well as various Muslim Councils or Shari’a courts, but it is accepted that these have no validity under British law, except that, as regards the Jewish faith, a court may refuse to grant a divorce until after a religious divorce in accordance with the Divorce (Religious Marriages) Act 2002. This is to prevent a Jewish husband from refusing his wife a Jewish divorce by ghet and so preventing her from marrying in a religious ceremony thereafter.

In the last part of the lecture the Archbishop referred to a work by a Jewish academic who advocates the possibility of members of religious communities being given the right to consent to certain civil disputes being heard by religious tribunals whose decisions would then be recognised and enforced by the state.

The context is not mentioned but it is almost certainly Israel or the Middle East where much more authority is already given to the tribunals of certain religious communities to act consensually. The Archbishop was not advocating such tribunals in Britain as such7 but was merely putting it forward as one possibility of how a supplementary jurisdiction might work in practice. Such tribunals would require consent by both parties to all parts of the religious legal process, including the right to withdraw consent at any time. Registration of tribunals would necessary but might be difficult as there is no single authority for the Muslims in Britain unlike the Church of England or the Jewish community. Canada has experimented with this idea but it was recently terminated in acrimony and division.

The Archbishop at the very beginning of his lecture said that he was worried about speaking about the Shari’a as people tended to concentrate on its negative aspects as portrayed by the actions of a minority of Islamic States.

He could not have been more prescient given the media reaction to the speech. However, if consideration is given to what he actually said it will be seen that he presented a clear incisive and conservative approach to the issue of how a State such as the UK addresses the religious sensibilities of its citizens.

What is unavoidable is not the application of Shari’a law in the UK per se but that Muslims will attempt within the confines of British law to accommodate its application as much as possible to their religious sensibilities. What is being accommodated is not British law but

15

the Shari’a; in effect it would either apply in the interstices of the existing law or by consent of the parties always having regard to what is permitted by British law. There is nothing dramatically unusual about this or even new. The Archbishop merely sought to raise certain issues8 from a religious standpoint and should be applauded for opening the debate in such a clear, thoughtful and level-headed way and not harried by a media always hungry for its next sound-bite.

Ian Edge Director, Centre of Islamic and Middle East Law, SOAS, University of London Barrister, Chambers of Richard Tyson and Tim Lamb QC, 3 Paper Buildings, Temple

1 It is true that the Archbishop was inter-

viewed on the “World at One” for Radio 4 before the lecture and in reply to the question whether the adoption of Shari’a law was necessary for community cohesion stated “It seems unavoidable and indeed as a matter of fact certain provisions of Sharia are already recognised in our society an under our law”.

It is this off the cuff statement which caused the media circus that broke out and made the event more newsworthy than originally planned; but it overstates what he actually said in his lecture.

2 “I would want to say very firmly that I am

not talking about parallel systems” he said in the question session that followed the lecture.

3 “I’m not postulating a detailed scheme but

raising a question” he said in the question session.

4 See speech by the Economic Secretary to

the Treasury Ed Balls MP to the Euromoney Conference on Islamic Finance 30th January 2007; HM Treasury website under newsroom and speeches.

5 See for example Shamil Bank of Bahrain

v Beximco Pharmaceuticals [2004] 4 AER 1072 6 See for example Al-Midani v Al-Midani

[1999] AER (D) 188 7 See footnote 2 8 See footnote 3

16

the barrister

Hidden harm: 160,000 children of prisoners ignored by Government

Then comes the trial.

By Lucy Gampell, Director, Action for Prisoners’ Families

E

very year more children are

their families and 22% of those who were

In December 2007, an alliance of four

separated from a parent

married on imprisonment are divorced or

charities, Action for Prisoners’ Families,

through imprisonment than

separated.

Clinks and the Prison Advice & Care Trust

by divorce. estimates

Government expect

and the Prison Reform Trust launched an

that

There is growing acknowledgement that

‘Agenda for Action’ calling on government to

160,000 children will see

prisoners’ children face poorer outcomes

commit to implementing a range of measures

a parent locked up in 2008, and the rising

than their peers. A recent review published

over the next five years that would seek

scale of imprisonment means that, within

by the Department for Children, Schools and

to redress the lack of priority given to the

five years, the number of children affected

Families and the Ministry of Justice looked

children and families of prisoners, help to

could reach 200,000 children a year.

The

at the outcomes for children of offenders

protect the public and safeguard children

total number of children in England & Wales

set against the government’s targets for

from harm.

with a parent in prison is higher still - 7% of

children’s wellbeing.

all children are affected by the imprisonment

children’s futures are heavily affected by

The charities’ agenda for government action

of a parent at some point in their school

family circumstances and that the impact

includes:

years. This is around two and a half times

parents and family have on a child is rarely

the number of children in care and over six

neutral.

As parents, prisoners are often

• The Government must start collecting

times the number of children on the child

subject to pre-existing disadvantage: Most

data on children with a parent in prison

protection register.

have a history of social exclusion and are

to properly inform policy-making and

more likely than the general population to

practice.

It acknowledged that

prison, and, whilst for some this may come

educational qualifications, multiple mental

• ‘First night in custody’ services should

as a relief after years of difficulty or even

health problems (often linked to drugs or

be present in all local prisons to help new

violence in the home, for most children and

alcohol misuse); relationship difficulties and

prisoners cope with the often traumatic

families this loss will be both distressing and

to have experienced abuse or neglect.

first week of imprisonment.

The review found that children of prisoners

• A welcoming visitors’ centre must be

Whilst the Government does now accept that

have about three times the risk for mental

available outside every prison where

the existence and maintenance of good family

health problems compared to their peers;

families can wait in comfort and security

relationships is a key factor in preventing

are at risk of stigma, bullying and that their

and receive information and support.

prisoners re-offending there is insufficient

caregivers often experience considerable

support and attention given to the needs

distress which impacts negatively on the

• Major improvements must be made to

and wellbeing of children and families of

children.

prison visits telephone booking lines to

prisoners.

At every stage of an offender’s

changing care arrangements which further

movement

through

affect their wellbeing.

damaging.

criminal

justice

ensure families can arrange visits.

Unfortunately these

process, their families are largely ignored.

children are also more likely to engage in

Many prisoners are there for the first time and

They receive no routine information and

antisocial behaviour and are at risk of going

their families are devastated by the event, left

support and advice is limited; prisoners are

on to offend themselves. The report concluded

with little support, information or recognition

increasingly located many miles from their

that children of prisoners are at higher risk

of their needs. Even where the situation is

home, with transport and visiting facilities

than the wider child population and are likely

not new, families can feel let down, ashamed

often inadequate and rarely child-friendly.

to require extensive support.

and have difficulty coping.

This is despite that fact that Home Office

The experience

starts well before the prisoner’s arrival at

research found that prisoners who received

Despite this, no specific support mechanisms

prison with the arrest,

visits from their family were twice as likely to

exist and there is no plan of action to take

place in the home in the middle of the night

gain employment on release and three times

forward the findings of the review. There

with little thought given to whether there

more likely to have accommodation arranged

is not even any accurate data recorded to

are children in the home and how this might

as those who did not receive any visits.

identify whether or not a person coming into

affect them.

As

a result, by the time they come out of prison, some 45% of prisoners have lost contact with

custody has dependent children.

APF has also published a series of useful

occasional family/child-centred visits, often

booklets families covering ‘Sent to Prison’,

motivated to do so by APF’s Family Friendly

parts of the process.

‘Keeping in touch’, ‘Living with separation’,

Prison Challenges, many still offer nothing.

they care about being described by the

‘Telling

This is another of the measures being called

prosecution in ways that leaves them barely

Release. Lawyers can obtain copies of

recognisable and, of course, if it is a high

these

booklets

profile case involving a serious offence, like

from

Action

the recent murder trials, the newspapers will

(http://www.prisonersfamilies.org.uk)

They hear someone

the

children’ and for

&

Preparing

for

Helpline

publicity

Prisoners’

Families

dig up the family past and hound families for their stories.

This often takes

for by the charities.

Assuming the family have managed to maintain contact and visit they will gradually settle into a kind of routine.

Insufficient

Lack of information is just one of the many

attention is given to preparing prisoners

problems facing families that the Agenda for

for release and what little there is rarely

Throughout this time it is highly unlikely

Action addresses. The logistics of visiting and

involves the family – parenting education

that the family will have heard about any

keeping in touch can be very difficult. Almost

courses for example, increasingly popular

support services. When the sentence comes,

one quarter of families visiting face a 5 hour

in prisons, ignore the carer on the outside

they are left with so many emotions, feelings

round trip, often involving several changes of

and very rarely link into actual quality

& questions running through their mind:

transport.

Although there is a government

contact with the prisoner’s child –eg through

They may want to know:

funded scheme that pays the cost of travelling

children’s visits. It is clear from families that

to the prison for families on low income

they looked forward to release with mixed

(the Assisted Prison Visits Scheme) too many

emotions. Children have grown up, partners

families do not know it exists or how to claim

have become independent and the roles in

it.

the home changed dramatically – yet it is

> what’s going to happen to him now?

Again lawyers can help ensure families

are given this information.

have been unemployed, have low skills and

They often face unstable and

For families, the trial

is one of the most stressful and traumatic

> where is he being taken?

Most often it will be their father who is in

the

17

the barrister

> When and how they can get to see him?

somehow expected that the prisoner will just be able to walk back in and life will return

Added difficulties trying to book a visit over the

to normal.

> How will they pay the rent and other

phone (which is compulsory at most prisons)

to prepare prisoners and their families for

bills?

mean some families some simply give up. If

release and to support them in the vulnerable

they do get to the prison, heightened security

first few months when they come home.

>

What

are

they

going

to

tell

the

children?….

Much more needs to be done

and inadequate visitors’ facilities mean the visits experience is often a poor one.

Without a more consistent and top level

For children and young people the experience

commitment

to

addressing

projects

is particularly difficult and many do not want

of

and

families

supporting families at court, run by local

to visit: “It makes you feel horrible, like you

irreparable will damage will be done to

prisoners’ families support groups,and some

have done something too. They watch you

family relationships and we will continue to

courts provide information for families,

and make you feel guilty just for being there.

fail prisoners, their children and society.

but lawyers have a key role here in giving

They search you and make you take your

their clients’ families information. What is

shoes off and you feel stupid and horrible.

essential however, is that the information

You don’t get used to it”. (girl, 14)

There

are

some

small-scale

given is accurate and lawyers may be best to

children

needs

prisoners

Lucy Gampell, Director Action for Prisoners’ Families

refer families to the local prison or specialist

Prisoners are unable to interact properly

organisations such as the free Prisoners’

with their children on regular domestic visits.

Families Helpline (0808 808 2003), managed

They have to stay seated so cannot go into

You

by Action for Prisoners’ Families (APF). The

the play area, to the refreshments bar or

endorsing

Helpline can tell families how to arrange a

even get up to comfort their child who might

www.prisonersfamilies.org.uk

visit, what financial help is available, explain

have fallen over. The exception is where

the prison system, provide immediate support

prisons offer special children’s visits. These

and refer families to specialist services.

It

visits provide a chance for prisoners to spend

also offers vital emotional support at a time

quality time with their children and can

when families feel they have no-one to turn

make a real difference to prisoners and their

to.

families:

“I feel that I am doing a sentence too and my

“I live for family visits. The ability to move

children. But this helpline has given me so

about and hug and kiss the kids constantly

much advice for help and support. I couldn’t

refuels me” (female prisoner)

have managed without them. Very helpful indeed and much appreciated.”

the of

Whilst over half of all prisons do now run

Direct line: 020 8812 3606 can

support

the

campaign

it

the

APF

on

by

website:

18

the barrister

the barrister

Digital evidence: the new challenge

gegn Petru Jónsdóttur og Sveini Skúlasyni)

have a suitable background after conducting

in obtaining the material and knew it was

and the alteration of the date on a digital

a search of the internet.

on his machine. The appellant’s appeal was

photograph taken by a car parking warden

By Stephen Mason, barrister, general editor of Electronic Evidence: Disclosure, Discovery & Admissibility, (LexisNexis Butterworths, 2007)

T

he introduction of paper

editor, Electronic Evidence, (British Institute

evidence is not limited to the use of mobile

caused

lawyers

of International and Comparative Law, 2008))

telephones. Kobi Alexander, the founder and

consternation in Europe,

will find themselves subject to a collective

CEO of Comverse, Inc, and wanted by the

mainly because lawyers

misunderstanding

US government in connection with charges

did not know how to

defense and judge.

some

by

the

prosecution,

of fraud, was located in Negombo, Sri Lanka

assess the veracity of

in 2006 after making a short telephone call

the contents recorded on the paper carrier.

The reader will probably not need to be

As a result, elaborate rules were developed

reminded that e-mail has become ubiquitous,

in some countries for the authentication

and is now regularly cited in evidence across

The stories about the use of Trojan horses

of documents recorded on paper so as to

a range of civil and criminal cases, including

and assorted forms of malicious software

prevent or counter attempts at fraud. At the

allegations of defamation (Western Provident

regularly hit the technical headlines, and cases

time, the pace of change was probably slow

Association

Union

relating to the abusive images of children

enough to ensure that lawyers, judges and

Healthcare Limited and Norwich Union Life

frequently incorporate the ‘Trojan’ defense.

those that entered the profession were able to

Insurance Company Limited, 1997; Exoteric

In another context, there is no doubt that

improve their knowledge and understanding

Gas Solutions Limited and Andrew Duffield

industrial espionage occurs, and the means

of the evidential requirements relating to the

v BG plc, 1999; Takenaka (UK) Ltd and Corfe

used to obtain corporate secrets varies, but

introduction of paper relatively easily.

v Frankl, 2001). Evidence from web sites

obtaining industrial secrets with malicious

and chat rooms have also been the subject

software, whilst not unique, is rarely the

However, some centuries later, a similar

of defamatory proceedings (Jim Murray v

subject of legal proceedings. However, the

change has already taken place with respect

Spencer, Steve and Pankhurst, 2002, Michael

use of spyware will be considered by the High

to digital data, and, it seems, it is only

Keith-Smith v Tracy Williams, 2006).

Court in London when the trial takes place in

Limited

v

Norwich

beginning to dawn on some lawyers, legal

using a Skype telephone.

the dispute between Ashton Investments and

academics and judges that we are now living

In addition, other digital devices have been

Ansol against Rusel Management Company

in a world dominated by digital evidence.

used for various purposes, such as mobile

and others.

Barristers fit into one of three categories:

telephones. For instance, in the case of

those that do not know they do not know;

Relf v Rifkind; Hibbert v Rifkind (2002),

Lest it be thought that the discussion of

some that know they do not know, and an

voice messages left on a mobile telephone

digital evidence is restricted to the realm

elite who know about digital evidence, but

voicemail were intercepted, recorded and

of the lawyer that specializes in criminal

are realistic enough to know they need to

subsequently

Helge

law or international corporate proceedings

keep up-to-date.

Fossmo, a Pentecostal minister in the town

of a glamorous nature, more mundane

of Knutby, Sweden, was found guilty of

examples include the discussion of the effects

The law acts as a means to provide for

using text messages to incite his nanny, Sara

of an electronic signature in the Australian

social stability, yet if lawyers and judges fail

Svensson, to kill his second wife and Daniel

Northern Territory family case of Faulkes

to understand the attributes of evidence in

Linde, a neighbour. More recently, evidence

v Cameron (2004); the re-installation of an

digital format, individuals that are caught

of a video taken on a mobile telephone of

operating system at the time disclosure was

up in events such as those illustrated in

a woman performing a ‘lap dance’ whilst

being pursued in the case of L C Services

the case of the State of Connecticut v Julie

naked, saved three men from being tried for

v Brown (2003), the fabrication of e-mail

Amero (January 2007, Superior Court New

rape, and subsequently caused the alleged

in the US case of Premier Homes and Land

London Judicial District at Norwich, USA,

victim, Cinzia Sannino, to enter a plea

Corporation v Cheswell, Inc (2002), the

the subject of a detailed analysis in the

of guilty to two charges of perverting the

alteration of clocks on a computer by a

‘Introduction’ to Stephen Mason, general

course of justice in 2006. Obtaining digital

lawyer in Iceland (157/2005, ákæruvaldið

mis-used.

In

2004,

19

in Manchester (R v Moses, (2005)).

dismissed.

The central concern in respect of digital evidence is the need to know how to

Of the certanties in this world, it can be stated

What might be considered by some to

assess the evidence, how to deal with any

with some confidence that digital evidence is

be more mundane examples of digital

contradictory expert conclusions, and how to

here to stay, and assessing such evidence

evidence are encountered in the education

brief digital evidence specialists effectively,

will become a core requirement. Although

system. On-line bullying of teachers is both

or at least to ask the right questions of such

the nature of many a barrister’s practices

commonplace and poorly dealt with by those

specialists in preparing a client’s case, both

is domestic in nature, nevertheless modern

with a responsibility towards those that are

for the purposes of examination in chief

methods of communication are such that

bullied. Another area of significance is the

and cross examination. An example in the

barristers can increasingly be expected to

relationship between teacher and pupil, and

domestic context illustrates the point that

advise on international perspectives relating

digital evidence of improper behaviour by

despite the differing or inconclusive views

to digital evidence.

teachers towards their pupils has been the

of digital evidence specialists, a reasonable

topic of appeals against decisions by the

conclusion can be reached by assessing the

Secretary of State for Education and Skills

entire evidence in context. In Andrew Charles

when the Secretary has included a teacher

Mogford v Secretary of State for Education

Stephen Mason is the general editor of

on the list of people prohibited from working

and Skills (2002), a digital evidence specialist

Electronic Evidence: Disclosure, Discovery

with children because of their unsuitability.

examined the appellant’s hard drive, and

& Admissibility, (LexisNexis Butterworths,

In the case of Nicholas Dunn v Secretary

a number of abusive images of children

2007)

of State for Education and Skills (2006),

were found. He was convicted of possessing

an appeal was dismissed by the members

indecent photographs or pseudo-photographs

of the Care Standards Tribunal where part

of children, although his conviction was

of the evidence included inappropriate text

subsequently

messages sent to a female pupil, and in FH

commissioned a further examination of the

v Secretary of State for Education and Skills

hard drive, for the examination to reveal

(2005), there was evidence of an improper

significantly more material than had been

relationship between a female teacher and a

found on the first examination. At issue was

male pupil, including the exchange of e-mails

whether the appellant was responsible for

between the two that made it clear that the

downloading the images on to the computer.

relationship was sexual in nature. In this

The appellant suggested that other people

instance, the existence of the relationship

used his computer at various times, and they

was discovered when the appellant handed

might have been responsible for using the

the laptop computer issued to her by the

computer when he was attending meetings in

school to a member of the IT department for

separate geographical locations at material

investigation and repair, and the employee

times. His evidence failed to convince the

subsequently examined the files stored on

members of the Tribunal, partly because his

the hard drive, only to discover a draft letter

evidence was contradictory in nature, and

of apology written by the appellant to the

partly because he failed to call witnesses to

parents of the pupil. The internet has also

corroborate his evidence. Notwithstanding the

been used by educational establishments

lack of decisive conclusions in relation to the

to seek information, and an appeal was

digital evidence, the members of the Tribunal

dismissed in the case of Michael O’Hara v

reached the decision that the Secretary of

Secretary of State for Education and Skills

State had satisfied them that the appellant

(2006), when a school discovered that the

was soley responsible for the material on his

teacher they appointed did not appear to

computer, or that he participated with others

quashed.

The

Department

© Stephen Mason, 2008

NEWS ROUND UP

20

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 Council warns that Best Value Tendering scheme is flawed NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS(LSC) NEWS NEWS NEWS The Bar Council’s working group on Best Value Tendering (BVT) has warned that the Legal NEWS ServicesNEWS Commission’s ideas will damage NEWS NEWSand NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSBrowne NEWSQC, NEWS quality, NEWS reduce choice, harmNEWS diversity.

The Working Group, which is NEWS chaired NEWS

by Vice-Chairman of theNEWS Bar Desmond has NEWS NEWS NEWS NEWS responded to theNEWS LSC Consultation Paper NEWS on BVT. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Published in December the Consultation Paper asked NEWS for responses onNEWS the future of Best Value Tendering for criminal legal aid. The NEWS NEWS NEWS2007, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS BVT proposals the Carter ReportNEWS (published in July 2006),NEWS which recommended a move toward a market-driven approach NEWS NEWSemerged NEWSfollowing NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS to legal aid procurement.

However,NEWS it has proved for the Working Group toNEWS comment on theNEWS merits or otherwise of the proposed NEWS NEWS NEWS NEWS NEWSimpossible NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS scheme NEWS since no NEWS details have beenNEWS published by theNEWS LSC. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The Working Group is made up of both senior members of the Bar, and eminent non-barristers including a former President of the General NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Medical Council, a former Court of Appeal Judge, a former President of the Law Society, and a leading professor of economics. The make-up NEWS NEWSGroup NEWS NEWStoNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS of the Working hasNEWS been designed ensure NEWS its independence, and to have broad expertise.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The Working Group’s concerns have been set out inNEWS detail, and centre on the NEWS impact BVT will have on the quality of the provision of criminal NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS legal aid.NEWS The absence of a robust NEWS mechanism for ensuring the impact that BVT has had inNEWS the United StatesNEWS of America – where a NEWS NEWS NEWS NEWS NEWS quality, NEWSand NEWS NEWS NEWS NEWS NEWS NEWS NEWS report published in 2000 shows it drove down quality lowered the quality of representation – have not been taken into account the NEWS NEWS NEWS NEWSthat NEWS NEWS NEWSand NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSbyNEWS LSC. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The opinion of the House of Commons’ Constitutional Affairs Select Committee, which described the proposed scheme as ‘a breathtaking risk’, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS has also been ignored. The Working Group supports this view, particularly in light of the fact that advocacy expenditure has been controlled for NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS over a decade by the Advocacy Graduated Fee Scheme, and also by the recent introduction of the Solicitors Graduated Fees Scheme, initiatives NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS which have stabilised legal aid expenditure.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Chairman of the Bar Council, Tim NEWS Dutton QC, said: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS ‘The BarNEWS Council NEWS is surprised that NEWS the LSC NEWS has not published any details of the proposed scheme, nor conducted any analysis the potential NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSof NEWS NEWS impact on qualityNEWS or on ethnic minority clients.

ThisNEWS is remarkable the LSC’s own expertsNEWS MDA, as well asNEWS the Constitutional AffairsNEWS NEWS NEWS NEWS NEWS NEWS NEWSsince NEWS NEWS NEWS NEWS NEWS NEWS Select Committee, advisedNEWS them that a fullNEWS impact assessment was vital before any proposals were developed.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS ‘If the proposals implemented extended to the Crown NEWS Court, they will damage to justice forNEWS BME clients, as well as the diversity of NEWS NEWSare NEWS NEWSand NEWS NEWS NEWS NEWS NEWSaccess NEWS NEWS NEWS NEWS NEWS NEWS the Bar and, by extension, the Judiciary.

Such a development clearly not be in the NEWS public interest, is something determined resist.’

NEWS NEWS NEWS NEWS NEWS NEWS NEWS would NEWS NEWS NEWS NEWSand NEWS NEWSI am NEWS NEWStoNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Law Society calls forNEWS coherent Criminal Justice Bill proposals NEWS NEWS NEWS NEWS NEWS NEWSraise NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSlegal NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS framework for surveillance concerns NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The Criminal Justice and NEWS Immigration BillNEWS is currently being Commenting onNEWS the RoseNEWS ReportNEWS on Friday 22 February NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS2008 NEWS considered by the House NEWS of Lords.NEWS Organisations as the Bar NEWS NEWS into Surveillance, Law Society Andrew NEWS Holroyd NEWS NEWS NEWS NEWS NEWSsuch NEWS NEWS NEWS NEWS NEWSPresident NEWS NEWS Council, NEWS the LawNEWS Society NEWS and Justice say that, as drafted, bill NEWS NEWS said: ‘We welcome Sir Christopher’s finding that no legal NEWS NEWS NEWS NEWS NEWSthe NEWS NEWS NEWS NEWS NEWS NEWS NEWS would alter fundamentally the role of the NEWS Court ofNEWS Appeal and turnNEWS NEWS visit to Woodhill has been monitored, andNEWS we await the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS it from aNEWS court ofNEWS review that considers points of law to oneNEWS which NEWS NEWS further NEWS assurances I have soughtNEWS from the Secretary of State NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS reconsiders the findings fact inNEWS a case. NEWS NEWS NEWS NEWS NEWS for Justice.

However, weNEWS remain NEWS very concerned theNEWS NEWS NEWS NEWS of NEWS NEWS NEWS NEWS about NEWS complexNEWS and unsatisfactory legislative surrounding NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSframework NEWS NEWS NEWS ‘This proposal betrays a profound lack of understanding concerning surveillance.

NEWS NEWS NEWScourts,’ NEWSsaid NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the role of the appellate Eric Metcalfe, human rights NEWS NEWSat NEWS policy director Justice. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS ‘It is fundamental to the rule of law that legally privileged NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Another NEWS clause inNEWS the bill NEWS that hasNEWS attractedNEWS criticism is the NEWS proposalNEWS NEWS conversations are not bugged. We would like to see explicit NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS to createNEWS a new immigration statusNEWS for foreign nationals allegedly statutory protection for legal professional privilege in the NEWS NEWS NEWScrime.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS involved NEWS in terrorism or serious ‘TheNEWS so-called “special Regulation of Investigatory Powers Act itself, which would NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS immigration status” is theNEWS latest Home Office proposal aimed at ensure those acting under the legislation clearly understood NEWS NEWS NEWS from NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS strippingNEWS away asNEWS many rights as possible those who cannot the limitations placed on them. The Home Secretary referred to NEWS NEWS NEWS NEWS NEWSThe NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS otherwise be removed on NEWS human rights grounds. lot of aNEWS failed NEWS NEWS the Investigatory Powers Tribunal in her statement to the House NEWS NEWSinNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS asylum-seeker the UK NEWS has never been an especially happy one, NEWS NEWS yesterday. This is, at best, a remedy after the fact. Potential NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS but the government seems determined to make it as miserable as NEWS NEWS complainants need to be aware of inappropriate surveillance. This NEWS NEWS NEWS NEWSthat NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS possible,’NEWS said Eric Metcalfe.

He believes this clause has been NEWS NEWS will generally not be the case. Alongside a more coherent legal NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS put forward as a ‘punitive response’ to cases whichNEWS the government framework for surveillance, we would therefore advocate more NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS has lost NEWS in the courts, such as S and othersNEWS v Secretary of State for NEWS NEWS stringent, active and fully resourced oversight arrangements.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the Home Department [2006] EWCA Civ 1157, 4 August 2006NEWS (the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Afghan hijackers case). ‘They wantNEWS to demonstrate to the tabloid ‘It is clear, as the Information Commissioner has pointed NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS press they are taking action against unpopular groups,’ saidNEWS Eric out, that we are living in a surveillance society. As databases NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Metcalfe. and electronic communications proliferate, new forms of NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS surveillance are developing. In this environment we would NEWS NEWS NEWSconcern NEWSthat NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The Bar NEWS Council has interNEWS alia expressed the bill urge the government to take the opportunity to launch a more NEWS NEWS NEWS NEWSprosecution NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS proposesNEWS to use non-lawyers to conduct cases in thoroughgoing review of the legal and practical safeguards that NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS magistrates’ courts.

The Bar Council fears NEWS that thisNEWS will riskNEWS more NEWS NEWS are needed to ensure our continuing rights and freedoms. The NEWS NEWS NEWSPoonam NEWSBhari, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS miscarriages of justice. chairperson of LAG and a NEWS NEWS Law Society would be happy to contribute to any review.’

NEWS NEWS NEWS NEWS NEWS NEWS practising barrister, said: NEWS ‘I hope that the Lords willNEWS reconsider theseNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS clauses in the committee stage of NEWS the bill as, if theyNEWS do not, NEWS they are NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS in dangerNEWS of approving a piece of legislation with some profoundly NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS flawed provisions.’

the barrister

21

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 Improving the Client RuthNEWS Evans speaks LMPA Conference NEWS NEWS NEWS NEWS Experience: NEWS NEWS NEWS NEWS NEWS at NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Speaking on 29 February at the Legal Practice Managers Association (LMPA) Conference, Ruth Evans, Chair of the Bar Standards Board NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS (BSB), outlined the important role to be played by Chambers in implementing improvements for the benefit of the profession and NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS consumers.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Ms Evans emphasised that the role of the BSB as regulator is to ‘be recognised as promoting and safeguarding the highest standards of legal NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS education and practice in the interests of clients, the public and the profession’. The Conference represents an opportune moment at which NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS she was able to provide Chambers, and particularly Practice Managers, with a snapshot of current and imminent BSB initiatives. Ms Evans NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS outlined these as follows: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS - Chambers Complaints NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The outcome of a consultation on Chambers complaints handling is due shortly, and is likely to see some changes to current guidance.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The BSB believes that improvements are needed to ensure that all Chambers have effective and accessible complaints procedures in NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS place for clients and that barristers and Chambers staff are sufficiently trained.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS - Alternative Business Structures NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The BSB is currently asking for views on whether barristers should be allowed to provide legal services if they are part of an ‘alternative NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS business structure’. The proposals follow the provisions in the Legal Services Act which facilitate greater choice in legal services.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS - Quality NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The BSB is committed to working with the Bar to develop mechanisms for maintaining and improving the quality of barristers. In NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS parallel, a BSB pilot scheme to monitor Chambers is due to begin shortly. This will involve 35 chambers and will focus on their activity on NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS complaints handling, pupillage and equal opportunities.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS - Training and Diversity NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The BSB needs to ensure that there is a strong supply of barristers entering the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS profession. The BSB is currently examining the Bar Vocational Course (BVC), through a working group chaired by Derek Wood QC, and NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS aims to have, by 2010, a new course attuned to the needs of the Bar. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Ms Evans closed by encouraging Practice Managers to contribute to the BSB’s consultations and, in doing so, play a crucial role in the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS development of a strong, successful, high quality Bar. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSRisk NEWSofNEWS NEWS NEWSsystem NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Bar Chairman: second class of legal aid in England NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWS NEWSclass NEWS NEWS NEWS NEWS NEWS By creating blockNEWS procurement fundingNEWS criminalNEWS cases there is aNEWS real riskNEWS that a second system of legal aid will be created in NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWS EnglandNEWS for people who need firstNEWS class legal advice.

ThatNEWS was theNEWS key message in remarks made byNEWS the Chairman the Bar,NEWS Timothy NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Dutton QC, who addressed European Bar Leaders in Vienna on 1 February 2008.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS SpeakingNEWS at the 36th CCBE President’s Conference, on the theme of NEWS “Access NEWS to Justice”, Mr Dutton said: NEWS NEWScommoditised NEWS NEWS NEWSEach NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS “LawyersNEWS do not provide services. caseNEWS is different, not least for the parties directly concerned.

ButNEWS proposed changes NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS to the funding of certain cases in England and Wales could create a second class service unless we can agree an approach which recognises NEWS NEWS NEWSThere NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWStheNEWS that a case is notNEWS a commodity. is still time for the Legal Services Commission to refineNEWS its thinking, andNEWS we are urging LSC toNEWS think NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS carefully about how it proceeds.”

NEWS NEWS NEWSecho NEWS NEWS NEWS NEWSatNEWS NEWSLegal NEWS NEWS premier NEWS NEWS NEWS NEWS Mr Dutton’s comments concerns fromNEWS a number of speakers the European Profession’s annual conference, whichNEWS was NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS opened by Austrian Minister of Justice, Maria Berger.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Law Society joins callNEWS for immediate Barristers’ Chambers Launches NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS closure of Guantanamo BayNEWS NEWS NEWS NEWS NEWS Community Fund NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Manchester’s 9 St John StreetNEWS Chambers has NEWS The LawNEWS Society,NEWS togetherNEWS with bar associations law NEWS NEWS NEWS NEWS NEWS NEWSand NEWS NEWSprestigious NEWS NEWS NEWS NEWS teamedNEWS up with NEWS local grant maker the Community Foundation to societiesNEWS around NEWS the world, has called for NEWS the immediate NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS launch an innovative new charitable initiative – the Nine Lives closure of the USNEWS prison facility Guantanamo Bay. NEWS NEWS NEWSatNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Community Fund.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Thirty four international haveNEWS signed NEWS a joint letter NEWS NEWS NEWSorganisations NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS to the USNEWS president and the Canadian prime minister to express The Fund, thought to be the first of its kind in England and NEWS Wales, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS their condemnation of theNEWS situationNEWS in Guantanamo Bay, while was launched weekend at a special event where NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSlast NEWS NEWS NEWSChambers NEWS NEWS NEWS at the same timeNEWS recognising the ongoing threat NEWS of an initialNEWS £4,000 NEWS was raised through an auction of promises.

NEWS NEWS NEWS NEWS worldwide NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS terrorism.

FurtherNEWS fundraising will now takeNEWS place throughout the yearNEWS using NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS a seriesNEWS of events, and through a NEWS simply charitable levy on the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The letter urges the Canadian government to repatriate and offer solicitors’ professional seminars regularly hosted at NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSdevelopment NEWS NEWS NEWS NEWS NEWS a fair trial to Omar Khadr, a Canadian citizen who was arrested the Chambers.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS at the age of 15. He has spent the last 5 years in custody at The Chambers comprises 11 Silks and 51NEWS Junior NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWScurrently NEWS NEWS NEWS NEWS Guantanamo Bay, and is now the only citizen of a Western country CounselNEWS as well NEWS as clerksNEWS and administration teams, all of NEWS whom NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS remaining in detention there. are being invitedNEWS to join aNEWS monthlyNEWS donation programme with NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS monies NEWS being taken fromNEWS their salaries at NEWS source. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS

22

the barrister

the barrister

The use of Designated Case Workers by the Crown Prosecution service to undertake the prosecution of certain cases within the court system has attracted many column inches and not a little controversy since their introduction in 1998.

By Diane Burleigh,Chief Executive, Institute of Legal Executives

D

have confidence that cases will be handled

when placed under this sort of pressure.

to have access to further career advancement

in a professional and competent manner by

They say no. They cite their professional and

within the CPS and the legal profession.

properly trained and regulated individuals.

ethical obligations. ILEX supports them in

The public, who may have little or no

this. ILEX will also robustly deal with any

knowledge of the complexity of legal cases

member who breaches the Code and acts

must also have complete confidence in the

inappropriately.

ability of Designated Case Workers to handle all cases within their areas of responsibility.

This is why ILEX will be working together with the Crown Prosecution Service to

That

recently

provide membership status within ILEX to

announced agreement in principle between

is

why

Designated Case Workers. The move will

the Crown Prosecution Service and ILEX

bring them within the same regulatory

to

believe

to

framework that applies to all ILEX members.

prepared to be regulated in the conduct of

ILEX membership is a key component in

They will be obliged to abide by the ILEX

Workers have enjoyed

of ensuring whatever the future role of

their role. They do not have to look like our

maintaining confidence in their current role,

code of conduct and advocacy code. Both the

a

of

Designated Case Workers, they are prepared

Legal Executives in how they learn and train

and establishing confidence in the ability of

Bar council and the Law Society some years

conduct

for it and the public is protected by robust

and gain experience; but they do have to

them to take up any expansion of their role

ago accepted that all three advocacy codes

regulation of the group.

do so to appropriate transparent standards,

in the future.

were broadly similar.

powers

to

range

straightforward cases in lower courts where

Designated

Case

the

goes with them and look at the practicalities

limited

admit

we

Case

esignated

Workers

and they do have to externally regulated. By

defendants plead guilty. They are generally

First I want to address the question “why

externally regulated, I mean regulation by

The need for good quality on-going training is

A joint team of CPS and ILEX staff are

perceived to have undertaken that role well.

is ILEX involved”? ILEX worked hard to

an organisation that is not the individual’s

vitally important. So is the need for any such

working on the detail of the new membership

Certainly in the debates on the Criminal Justice

construct

employer.

training programmes to be independently

framework. We expect that this work will

and Immigration Bill, parliamentarians have

scheme, approved by the Lord Chancellor

accredited

that

be finalised over the next few months, and

not been critical of their performance.

under the Courts and Legal Services Act,

There are those who consider that Designated

standards of competency are high, the

membership open to Designated Caseworkers

an

education

and

regulatory

to

reassure

the

public

that will enable its own Legal Executives to

Case Workers are not legal professionals in

entire process is open and transparent and

by the summer. There will be

Now Clause 105 of the Criminal Justice and

conduct cases in the magistrates courts. It

their own right, but should be considered

Designated Case Workers are fully competent

membership category for them. They will

Immigration Bill proposes to permit the

was a battle to persuade some sections of

as ‘paralegals’, a vague definition that is

to do what is asked of them and confident in

not be brought in as Fellows of ILEX, which

Director of Public Prosecutions to decide

the legal profession and the judiciary that

open to a wide range of interpretations. It is

themselves that they have that ability.

category is for Legal Executive Lawyers.

when and how to extend these powers to

Legal Executives, with additional training,

said that they have little or no experience to

enable Designated Case Workers to handle a

could make successful advocates. The first

undertake the role required of them and have

Equally important is the need for all

Those Designated Caseworkers who are law

wider range of cases in the future, including

training courses will shortly be underway.

limited

Designated Case Workers to be subject to

graduates, or LPC or BVC graduates, may

not guilty trials in the magistrates courts.

So why would ILEX be interested in helping

limited training.

independent external regulation. This will

qualify for exemptions from our professional

There has been much written in the legal

others, who are not Legal Executives, to do

press, and some of our more august national

a similar job?

papers have devoted a number of column

legal qualifications and similarly

23

provide confidence that standard setting,

Legal

Often overlooked is the fact that many

assessment

ethical

Already law graduates may be exempt from

Designated Case Workers have significant

standards cannot be compromised by the

the law papers, and LPC graduates from the

of

competency,

and

Executive

qualification

a specific

scheme.

inches about the future use and role of

The answer is twofold. The driver is that,

legal qualifications, including law degrees.

demands of a line manager concerned about

law and practice papers. We do, however,

Designated Case Workers.

as an organisation, we believe in providing

Currently, they must undergo additional

budget or workloads.

require all our students to have 5 years

opportunities to individuals to serve the law

training, organized and delivered internally,

There has been concern in some quarters

and the interests of justice through education,

but externally assessed, before undertaking

ILEX members are almost all employees.

admission as a Legal Executive, as well as

over proposals to extend their powers. It is

training and regulation. Legal Executives,

any advocacy in court. They are subject to

This means that ILEX is experienced in

the academic qualifications. We would need

not within the scope of this piece to comment

and our other members, do this without

a mentoring scheme under CPS solicitors

supporting our members, whether in private

to look closely at the experience of individual

on the advantages or otherwise that any

having to qualify and train in the same

and barristers, and there is an element of

practice or in public service and who, from

designated caseworkers before we can say if

changes to the role of caseworkers. or on

way as Barristers and Solicitors, though

independent, external audit of their work.

time to time, are put under pressure to do

the qualifying employment rules have been

the impact those changes will have on the

always to appropriate standards. It does

The fact that they appear in court regularly

work for which they are not qualified; or

met, and admission as a Fellow possible.

various sectors within the legal profession.

not sit comfortably with us to deny others

means that Designated Case Workers acquire

to undertake advocacy without appropriate

the opportunity to progress their careers,

experience in the nature of magistrate’s

rights; or to manage offices contrary to SRA

We certainly anticipate that the association

But perhaps it is timely and pertinent to

if they are prepared to gain the knowledge

courts work and procedures.

rules. Our members have a code of conduct

between ILEX and the CPS will create

look beyond the headlines and the hype that

and practical shills required for job, and are

It is not only the legal profession who must

which guides their decisions and actions

opportunities for Designated Case Workers

“qualifying employment” in legal work before

24

the barrister

the barrister

How can barristers improve their commercial position?

As a systems analyst working in a broad range of business sectors, I find that compared to the average commercial business a barrister’s chambers’ expends more effort processing debt.

David Randall, Managing Director of Formation and system architect of InQuisita Law chambers management software reviews best practice for a professional services company.

C

onsider this: How long

there is a higher risk that getting paid will be

Trading under your own standard terms of

does it take you to get paid

more difficult.

business is a clear method of engagement

for the work that you do?

The

Let’s review some of the stages:current

payment

time

average for

UK

Estimates

companies to settle an invoice is 38 days (and

not get around to doing it.

You collectively have the power to choose to

software can only help you make these

note is a ‘selfish’ document. It seems to suit

changes: You and your staff will need to

resources will be drawn into areas that do

to hide any mistakes, opportunistic practice

rewards of lower costs, happier customers,

not benefit you and your practice will again

or dialogue (such as a reduction in fees),

and ultimately more profit.

suffer.

you render the document unreliable and it seems perfectly natural for your clients to

For further information on InQuisita Law

used by most of the nation’s transactions

Capturing the detail of what you do will help

pay nothing and query everything.

chambers management software please visit

and these could work well for barristers.

your client understand the complexity of

Perhaps as damaging to your business as the

www.inquisita.com

Modifying these terms for each client, or even

your work and understanding what you do

payment delays and cost of administration,

case, could be a costly and dangerous practice

undoubtedly helps your client value what

is a further escalation of cost and complexity

For comment on this article please email me

that should be approached with caution, as it

you do. As an extra incentive to recording the

in preparing reliable financial reports in the

at david.randall@formsoft.com

accounting quicksand of the fee note.

to the Payment League Tables, compiled by

provision of a service is difficult to get right

administration overhead that fights against

many ad hoc conversations and emails you

the Institute of Credit Management. You may

and there will always be contingencies and

potential gains in efficiency.

respond to that escape billing all together?

enjoy equal or better terms, but I’d suggest

caveats. However, it is the start of a stronger

that this national average is more likely your

relationship to consider a request and give a

Many professionals are squeamish about

best case, maybe you don’t know and are not

frank opinion about how much time and cost

proffering their rate or rates, but generally

Replacing fee notes with invoices will introduce a tried and tested commercial method of

Billing

billing fees that is universally understood.

Many are concerned that invoicing might

is likely. Where there is room for doubt you

exercising a little ‘glasnost’ with clients will

So, the final step is to bill the work completed

will probably find your client assumes the

let them understand what they’re agreeing

in accordance with your agreement and

barristers under regulation 92 of the Value

to, and can help remove any surprises.

collect your debts.

Added Tax Regulations 1995, leaving them

There could be many reasons for debt

best case and so the reality is always going

collection within your industry trailing the

to be a disappointment.

The same principle applies to billing as all of

not the case and by correctly labelling your

the above: bill your work unambiguously in

documents you may continue to enjoy these

Anyone who bills for their time needs a

a language that can be understood by your

benefits; though, in light of the changes

client.

to income tax introduced under UITF 40,

Agreeing Terms

takes longer to explain and agree your work

contravene the special dispensation given to

liable to pay VAT at time of billing. This is

Recording Work

average for other business sectors. Perhaps billing your time is more complex, and it

recording to invoice billing. But even great From a systems analysis perspective, the fee

thought and effort to reap the potential

imposes an extra level of complexity and

even able to determine your average.

case document management through time

embrace this change together, and put in

the

for

the billing of a case.

be altered at any time. However, being able

Providing

estimate

manage better commercial processes; from

a purpose very well in that anything may

only 27 days for the FTSE250), according

reliable

InQuisita Law can help you build and

understand what has happened throughout

If you allow others to subvert it, your

time spent working, you might consider how

a

very poor conduit for allowing your clients to

implement a common process.

If you subvert it your practice will suffer.

before settling an account. Or perhaps there

Before providing a service unambiguous rules

mechanism to capture the time spent to

is unwillingness on the part of the client to

should be established with your customer

enable billing, and all businesses seem to

pay, which requires lengthy debt recovery.

about what will be provided and what is

work hard to keep the information flowing.

The traditional fee note uses a language

continue to offer this arrangement. Even if

Whilst the area of law practiced may vary,

known only to the legal profession.

this were withdrawn there is protection for

expected in return.

Is it endemic that services provided by barristers must suffer longer than normal

I wonder anyway how long HMRC will

any barrister receiving less than £1,600,000

the types of service are quite similar, so this You can draw your own conclusions about the

should be quite simple to implement.

Those from other sectors seldom understand

excluding VAT per annum under the VAT

what they are and are confused enough to

cash accounting scheme.

payment delays, or are they the result of an

current effectiveness of debt cover afforded

imposed working practice? It may not surprise

by The Bar Council, but I wonder if your own

That each chambers has developed a subtly

pay incorrectly, pay late, and almost certainly

you to know that many other professional

contractual terms may be the best recourse in

different process to record these times (and

after using far more of your chambers’

service industries manage to record and bill

pursing your debt? However, if you try to draft

that within each chambers it is common

resources than necessary.

In Summary

work on a simple commercial basis with less

and employ your own contractual terms you

for several such processes to compete for

effort and administration and still receive

will probably encounter similar difficulties

preference with individual barristers), is

The language of commerce is now the invoice

This may be a rather obvious assertion; but

prompter and more reliable payments.

to those experienced by The Bar Council

symptomatic of one the most significant

and the statement, not the fee note. If you

when a legible bill is received for a service

that resulted in delays to implementing their

differences between a chambers and a

want to trade with people who use this

that is in line with expectation then the debt recovery is both quicker and easier. So, if you want to help your cash flow perhaps

When an efficient professional provides a

contractual terms of work scheme (as opposed

commercial business; independence. Any

language, you need to learn it and use it

service, they will typically estimate the job,

to the reasons they reported); namely, that it

other business that makes its revenues from

also.

agree their rates and terms, and then record

is difficult to define a clear contract to cover

the billing of staff time would implement and

and bill any work done. Where any of these steps are omitted, confused or obfuscated

an obscure process.

25

you should step into your client’s shoes for

enforce a common process. It would not be

The traditional fee note does not follow any

a moment and consider what it’s like to do

an option to prefer to do it otherwise, or to

transactional accounting principles and is a

business with you?

26

the barrister

the barrister

Saving for retirement As self-employed professionals, barristers face an interesting array of pension options. Dani Glover, a financial planning specialist at Smith & Williamson, answers some of the questions frequently posed by barristers on how best to save for their retirement.

By Dani Glover, Director, Smith & Williamson How much should I be putting into my pension?

B

arristers, as self-employed individuals, do not participate in the Second State Pension. So, apart from the basic state pension, you have to rely on your own

savings into personal pension plans during your retirement.

There is no straightforward answer to how much you should be saving as it depends on a number of factors such as your other assets and how much income you would like in retirement.

A ‘money purchase pension plan’, i.e. retirement annuity contracts, personal pensions and self-invested personal pensions (SIPPs), provides a pension based on the value of the fund rather than a member’s final salary. It is therefore important to pick the right investments so that your money works hard for you.

It is difficult to accurately predict the level of pension income that will be generated from a money purchase pension fund, but it is safe to say that the more you contribute, the greater the potential benefit.

The maximum contribution allowable in a tax year is the level of an individual’s earnings, capped at £235,000 (2008/09). This is a significant increase for most, compared with the amounts which could be put in a pension up until two years ago, when new rules were introduced. On 6 April 2006, the pension simplification rules, also known as ‘A-Day’, came into effect and the consequences of these changes are outlined later on.

Tax relief at the member’s highest marginal rate is available for contributions, which is what makes pensions so compelling. So for higher rate taxpayers, pension contributions are particularly tax efficient, with a £100 contribution costing only £60.

There is, however, a cap on the value of a pension fund when benefits are taken. The figure has gone up to £1.65 million for this financial year (2008/09).

Are pensions the best place to save my money?

Sound financial planning is achieved by finding the most suitable option for each individual and it’s important not to put all your eggs in one basket. A pension is designed to provide an income in retirement.

Only 25% of a pension fund can be taken as cash and the remainder has to be used to provide an income for life.

Pension funds grow without any liability to capital gains tax, while dividends are taxed at 10% thus making pension funds attractive investments.

A balance between saving into a pension to provide regular income payments and non-pension assets to give additional capital and/or income is generally the best financial planning approach to take.

Do the new rules on pensions tax simplification affect me?

The new rules aimed at pensions tax simplification introduced on A-Day, affect the taxation of pensions, offering simpler and more flexible retirement arrangements.

Generally, the new rules are more favourable to the self-employed as greater amounts can be contributed. However, people may need to bear in mind the annual and overall limits on tax efficient pension planning.

A-Day rules say that all pension planning must now be done in the current tax year as it is no longer possible to make contributions as if in the previous year. But the greater annual allowance makes up for the loss of ‘carry back’.

You may have just missed the deadline for contributions for 2007/08, but the start of

the tax year is a good time to review your pension options for the year ahead.

The investment rules remain very similar, but always check with your SIPP provider before purchasing specialist investments.

Should I keep my Retirement Annuity Contract (RAC)?

If the RAC has guaranteed annuity rates then probably, yes, as the annuity rates are far more attractive than those available on the open market. However, most guaranteed rates are only available on a single life basis with no escalation and are paid annually in arrears which may not be suitable.

If guaranteed rates do not apply it is worth considering transferring to a SIPP or a more competitively priced personal pension. Many RACs have hefty initial charges which make even more of an impact the closer you are to retirement. Fund choice can also be limited, so reviewing your options is always sensible.

My pension has performed badly, so why should I add to it?

In simple terms, a pension is a tax efficient wrapper that can hold a variety of investments. If the performance has been poor it is probably because the underlying investments have performed badly.

The majority of pension plans allow a switch between funds on a nil cost basis. Once again, regular pension reviews are essential to make sure your money is working hard for you.

Should I set up a SIPP? Much comment has been made about the benefits of SIPPs and they have soared in popularity as a result.

What sets SIPPs apart from other pensions is that you retain control of the underlying

investments. A SIPP is simply a wrapper and is not linked to the underlying investments, so you can hold any permissible pension investment.

SIPPs are often used for consolidating various personal pension policies (including RACs) into one wrapper. Various types of SIPP are available, but I would suggest selecting a fee-based SIPP so that all charges are transparent, instead of a commission-based SIPP. Most SIPPs allow for the appointment of a discretionary fund manager who has total control over the portfolio. For larger pension funds this option should be considered as it enables the fund to be monitored regularly and changes made according to market conditions.

SIPPs also provide maximum flexibility in the way pension income is taken. Pension income can either be via an annuity (now called secured pensions) or unsecured pensions (previously known as income drawdown). Unsecured pensions post age 75 are known as alternatively secured pensions.

Both unsecured and alternatively secured pensions are best achieved through a SIPP. An alternative to a SIPP is the stakeholder style of personal pension, which offers very competitively priced contracts. However, people tend not to review the underlying investments of these which means the asset allocation of their pension may be unsuitable.

Remember that good asset allocation can improve diversification and performance by pinpointing markets or sectors that are undervalued as a whole. Correctly identifying these areas will clearly improve performance.

How does my pension purchase commercial property and can it buy the chambers in which I currently operate?

Pension funds can purchase commercial property and usefully, barristers’ chambers fall into this category. The rules on borrowing from your pension fund have changed since the introduction of pension simplification – loans are now restricted to 50% of the net fund value. Therefore a pension fund of £500,000 can borrow £250,000 in order to purchase a commercial property.

Partners in professional firms often club

together through their pension funds to buy commercial property which, in many cases, is leased back to the firm. It may be beneficial to join with other barristers in one overall scheme to buy your chambers.

Do I have to buy an annuity with my pension?

27

Dani has been advising individuals, companies, professional partnerships and their partners on pensions and related financial planning issues for some 15 years. She is also increasingly involved with financial planning issues in relation to divorce, including pension sharing.

For press enquiries, contact: In short, no. Since the introduction of pension simplification there is no need to buy an annuity. However, if you do, the value of your fund (or part of the value of your fund) is exchanged for an income for life. The shape of the income is decided at the outset and can include the escalation of payments, essentially to provide for increased needs as you get older, as well as spouse’s benefits.

While it is currently possible to take an income via an annuity from your pension at age 50, the rules change on 6 April 2010, when the minimum age rises to 55.

Previously known as income ‘drawdown’, the options available are now known as ‘secured pension’ or ‘unsecured pension’ (USP).

Unsecured pensions allow the fund to remain invested and an income taken from it on an annual basis. The income taken can be from nil to a maximum set by the Government Actuary’s Department (GAD). The amount you are able to take from your pension fund is re-set every five years, with reference to the fund value and the prevailing GAD rate.

The level of income taken can change (within the limits) at any time, according to your needs.

A decision has to be made by the age of 75 if you have not yet taken benefits or are taking ‘unsecured’ income. If benefits have not been taken it is the last time to elect for tax-free cash as the availability is lost post75. If taking unsecured income, the decision at 75 is whether to elect for secured or alternatively secured income.

Alternatively secured pensions are similar to unsecured pensions, but limited to a range between 55% and 90% of the ‘unsecured’ level at age 75.

For more information, contact:

Sarah Miller 020 7131 4264 sarah.miller@smith.williamson.co.uk Kate Harrison 020 7131 4228 kate.harrison@smith.williamson.co.uk

Disclaimer By necessity, this briefing can only provide a short overview and it is essential to seek professional advice before applying the contents of this article. No responsibility can be taken for any loss arising from action taken or refrained from on the basis of this publication. Details correct at time of writing.

Note to editors Smith & Williamson is an independent professional and financial services group employing over 1,400 people. The group is a leading provider of investment management, financial advisory and accountancy services to private clients, professional practices and mid-to-large corporates. The group operates from offices in London, Belfast, Bristol, Glasgow, Guildford, Maidstone, Salisbury, Southampton and Worcester.

Smith & Williamson Limited Regulated by the Institute of Chartered Accountants in England and Wales for a range of investment business activities. A member of Nexia International, a worldwide network of independent accounting firms.

Smith & Williamson Financial Services Limited Authorised and regulated by the Financial Services Authority.

Sarah Miller Press Office & Publications Co-ordinator

Smith & Williamson Holdings Limited Tel: 020 7131 4264 Fax: 020 7131 4029 www.smith.williamson.co.uk

Dani Glover Director at Smith & Williamson 020 7131 4440 daniela.glover@smith.williamson.co.uk Large Firm of the Year

28

the barrister

the barrister

Competing for Loyalty?

the Anglican Church in Africa.

The unprecedented furore which followed on from the comments made by Rowan Williams about sharia law provide a timely reminder of the difficulty of dealing with the role of religion in a secular state.

By Thom Dyke, barrister

P

The legal community

29

should be based on British values”. However,

unexamined systems that have repressive ef-

last April Mr Brown’s former adviser Ed Balls

fect” may be easier said than done.

called for the development of government is-

Conclusion

sued sharia-compliant sukuk bonds, which The response to the row has raised further

would operate in a similar way to securitised

Tensions have always existed throughout

questions about the role of lawyers in pub-

loans. He said the government’s aim was to

British between different communities. The

lic discussions.

Given the technical issues

“do everything we can to promote new ways

conflicts between Catholics and Protestants

raised by the speech, there seemed to be a

for British Muslims to bank, save and borrow

in the seventeenth century, would only lead to

using Islamic finance products”.

full Catholic Emancipation in the nineteenth

erhaps it was with fore-

and what would be the most appropriate

noted that “we do not simply have a stand-

surprising reluctance by the legal commu-

sight of the adverse pub-

model for recognising a role for sharia law?

off between two rival systems”. Against this

nity to engage publically in the debate. Judy

licity which followed his

The Archbishop

Manichean view of the world, Dr Williams

Dyke, a partner at solicitors Tyndallwoods

Recognition that communities may wish to

lief Act of 1829 (c.7 10 Geo. 4). The tensions

advocated a similar outlook to that taken by

said “given that lawyers have a high level of

deal with certain matters according to their

which have arisen between different commu-

lecture that prompted the

century with the passing of Peel’s Catholic Re-

Archbishop of Canterbury

Some commentators have suggested that the

Amartya Sen in his recent work ‘Identity and

technical knowledge in these areas they are

own religious beliefs does not threaten the

nities throughout British history have had a

to quote Muslim scholar

archbishop should have been more careful in

Violence’. In this, Sen argues that by focusing

often best placed to clear up some of the con-

edifice of the state. Nor does it necessarily

transformative effect on our legal and consti-

have to envisage the creation of a parallel

tutional development. Much of the cohesion

Tariq Ramadan. In his book ‘Western Mus-

choosing his words given the sensitivity of the

on a plurality of identities, communities can

fusion which can be perpetuated by the me-

lims and the Future of Islam’ Ramadan pre-

subject matter. After the Bishop of Roches-

reduce tension through a better understand-

dia”. Such complex and important issues de-

legal system. It is both sensible and practi-

of UK society is derived from the ability of our

sciently notes that, “in the West, sharia con-

ter suggested Islamic extremism was turning

ing of their shared history, rather than divid-

serve a full and proper public debate, and the

cal to consider the role which Islamic courts

common law system to adapt and develop or-

jures up all the darkest images of Islam”.

some communities into no-go areas for non-

ed values. Dr Williams echoed this sentiment,

argument that raising such ideas in a public

could play in officiating over certain forms of

ganically whilst reconciling competing values

Muslims, he was subjected to death threats.

noting that “membership of the ummah is not

forum should be avoided for the sake of pla-

civil disputes, in much the same way as the

and community interests. It is essential that

Much of the subsequent hysteria failed to en-

However, the Archbishop was open about

coterminous with the membership of a politi-

cating extremists on either side has worrying

Jewish rabbinical courts, or beth din. This

the laws which govern us reflect social, reli-

gage with the implications of a more plural-

recognising the difficulties which would arise

cal system”. Thus in addition to a Muslim’s

consequences for a democratic society.

does not preclude the question of oversight

gious and normative values across a broad

istic legal regime, and instead took the view

from bringing sharia councils closer to the

identification with Islam, he will also have

from the legal community. Indeed the Gen-

section of society.

eral Medical Council provides an example of

that the spectre of sharia was simply anti-

English legal system. He noted that, whilst

coexistent identities in relation to national-

thetical to English law. David Green, director

individual parties are free to enter into pri-

ity, profession, relationships etc. A move to

of the right-leaning think-tank Civitas, stated

vate associations between themselves, there

formally recognise these multiple identities in

that “as they stand, sharia councils are not

may be substantive human rights implica-

the UK’s legal system, via the integration of

There are some specific precedents for rec-

profession. The GMC acts in a regulatory capacity to oversee the medical profession, and

Potential for accommodation

precedent for the formal oversight of a body designed to regulate a specific community or

compatible with the fundamental principles

tions if such institutions are brought within

a “supplementary [Islamic] jurisdiction”, Dr

ognising the existence of distinct religious

of a liberal democratic and pluralistic soci-

the purview of the state. For instance, differ-

Williams argued, might actually go some way

jurisprudential space to be found in the de-

yet is subject and accountable to the Council

ety”. Others focused on the potentially dam-

ential treatment of men and women could fall

towards improving relations between Brit-

velopment of canon law, which still allows the

for Healthcare Regulatory Excellence, which

aging effects on community cohesion. In a

foul of the Article 6 provisions guaranteeing

ain’s minority communities and the state.

Church of England suzerainty over issues of

is itself a non-medical body.

speech entitled ‘Extremism, individual rights

alteration of church property and disciplining

a fair trial.

and the rule of law in Britain’, Conservative

In his address to the General Synod he also

of the clergy. The recognition of the role of

Potential Consequences

Party leader David Cameron stated that the

However, the Archbishop was clear that he

insisted it had been “appropriate” for him

government-funded faith schools provides a

introduction of sharia would be akin to creat-

was not proposing a formal incorporation of

to speak on the issue, but admitted he had

further example of the way in which civil so-

ing “a legal apartheid to entrench what is the

sharia into English law in the same way that

been “clumsy” in the way he had discussed it.

ciety has developed to accommodate a plural-

In the final analysis it may be that the level of

cultural apartheid in too many parts of our

the European Convention on Human Rights

However, there have been those who have ar-

ist outlook. Other parts of civil society have

cultural dialogue which Williams envisions to

country”.

became part of domestic law through the Hu-

gued that he should not have raised the issue

been faster to acknowledge the changing face

enable a system to be truly effective, simply

man Rights Act in 1998. Nor was he propos-

at all. Trevor Philips, head of Commission

of British society, such as the banking sector,

proves impossible to achieve. Any legal system rests on the legitimacy it enjoys in society. Whereas most British Muslims may agree

However, now the dust is starting to settle,

ing for communities to be able to opt in to a

for Equalities and Human Rights went as far

which now offers sharia-compliant personal

it is clear that three central questions have

system where there was a formal supremacy

as saying that “Raising this idea in this way

and business bank accounts.

emerged which should now become subject

of sharia law to English law, similar to the

will give fuel to anti-Muslim extremism and

to further debate and scrutiny. Firstly, was

way that the 1972 European Communities

dismay everyone working towards a more in-

The government has been keen to steer a

ship between the individual and God, there is a vocal section for whom Islam provides

that Islam is based on a personal relation-

the Archbishop right to raise the issues in the

Act established the primacy of European leg-

tegrated society”. Although he has no formal

course between the promotion of national

way he did? Secondly, what role should the

islation.

legal power outside of England, as the primus

unity and a desire not to lose out on business

for a complete political system. For Britain’s

inter pares of Anglican primates worldwide,

opportunities. Responding to the speech, and

Islamist groups, writers such as Syed Qutb

the Archbishop should perhaps have been

with echoes of his ‘British jobs for British peo-

and Taqiuddin al-Nabhani cannot merely be dismissed as “primitivist”. The archbishop’s warning to “make sure we don’t collude with

legal community play in such complex debates? Finally, what are the historical and

Speaking of his desire to avoid the ‘clash of

legal precedents for creating what the Arch-

civilisations’ thesis, described by writers

clearer in his choice of words, especially in

ple’ comment, Gordon Brown’s spokesman

bishop described as “plural jurisprudence”,

such as Samuel Huntingdon, the Archbishop

light of the vigorous opposition to sharia from

noted that he “believe[d] that British laws

The author is a barrister.

NEWS ROUND UP

30

the barrister

the barrister

The attractions of a Judicial Career April saw the second anniversary of the Judicial Appointments Commission; the independent body set up to select candidates for judicial appointment in England and Wales.

JAC Chairman Baroness Usha Prashar CBE reviews the Commission’s achievements and some of the challenges it faces going forward.

Introduction

say that the current selection exercise for the

backgrounds. No preparation is required: all

and merit alone regardless of gender, race or

High Court will be run under s87 of the CRA.

relevant statutes and case law is provided.

background.

We will be looking to recommend the number

Each candidate is required to read and as-

of people equal to the number of confidently

similate a small bundle of papers and work

anticipated vacancies. The next Circuit Bench

accurately and quickly under pressure. The

exercise will also be run under s87.

time allowed for the test is two hours and we

Not everyone wants a judicial appointment

have given everyone the choice of writing the

but the flexible and varied nature of judicial

test by hand or using a computer.

work can make a career on the Bench a ful-

The selection process

raised by the Consultation Paper. In our re-

vacancy notices finalised and sent to the JAC

sponse we focussed on ways in which both

before a competition can begin; and once

The UK has one of the most highly respected

he JAC is about to em-

legislative and management changes would

the JAC selection has been sent to the Lord

judiciaries in the world. The Commission has

bark on its third year of

enable us to provide a better service without

Chancellor the successful candidates must be

operation.

compromising the quality of our selection

formally appointed, medical checks carried

processes.

out for salaried posts, and training scheduled if necessary. Appointees may then need to

T

During our first year we

31

A Judicial Career

filling option whatever your legal background

Diversity

or personal circumstances.

been careful not to introduce or recommend

Diversity remains a major challenge. We must

There are practical attractions to working in

change for change’s sake.

We have been

find new ways to attract suitable candidates,

the judiciary too. It is possible to work part

mindful that nothing we do must jeopardise

who for various reasons are put off from ap-

time – an attractive proposition for younger

the outstanding reputation of our existing ju-

plying at present and make sure that there is

applicants with children or parental caring

dicial office holders.

no bias in our processes that disadvantages

responsibilities.

made significant changes

The Constitutional Reform Act came into

relinquish current commitments in order to

to the ways in which judicial candidates were

effect less than two years ago. There is not

take up appointments.

selected for office and developed a wide-

yet sufficient evidence to support significant

ranging outreach programme to encourage

change. The Commission therefore did not

As detailed in the Commission’s first annual

ties and abilities and select only the highest

Delivering the Bar Council’s annual race

much further than that. My judicial Commis-

eligible candidates from the widest range of

support, or set out, proposals for significant

report, the process from beginning to end

calibre applicants. We have streamlined the

equality lecture in November I argued that

sioners tell me they are fortunate to have a

backgrounds to apply.

change but rather focussed its response on

may well take upwards of a year. It is impor-

application process, reducing the applica-

wider and more intensive forms of collabo-

job that is stimulating, fun and where col-

improving the current arrangements with a

tant that those responsible for each segment

tion form by almost a half, to 13 pages and

ration were needed in order to speed up

leagues are friendly and helpful.

In our second year we sought to improve the

view to providing a better service to candi-

of the process consider how best they could

we have introduced technical tests and case

progress towards a more diverse judiciary. I

processes and to ensure that we delivered

dates and to the justice system.

reduce delay without diminishing the robust-

studies in place of a previous system of paper

suggested that this renewed effort needed to

But there is no doubt it is very hard work. It

ness of their procedures.

‘sifts’.

involve the key representative bodies for the

is a job, which carries heavy responsibilities

legal profession as well as Government and

too: the decisions made by Judges can have a

pointments is, in our opinion, sound in its

We have also addressed the issue of lists.

Short-listing is now done on the basis of a

its representative bodies.

profound effect on people’s lives.

We need to build on that to further reduce

essentials, there is room to improve the man-

Exercises run under section 94 of the CRA

qualifying test in most selection exercises.

the time each selection exercise takes and

agement of the system. We have made con-

have been regarded as convenient in circum-

Tests have already been used in nine selec-

My proposal resulted in the establishment of

The work of administering justice according

to ensure that our processes reflect the best

siderable improvements with the time each

stances where the number of vacancies re-

tion exercises involving 740 applicants. For

the JAC Diversity Forum. This forum brings

to law is important and honourable. The task

possible recruitment practices. We must also

selection exercise takes to complete but can-

quired in a particular competition is difficult

the Recorder Selection Exercise, the written

together the JAC, Ministry of Justice, judici-

of preparing reasons for judgement is often

continue to reach out to attract the best can-

didates, courts and tribunals, and the pub-

to predict. It has, however, very unfortunate

test consists of case studies set in a hypotheti-

ary, Courts, Tribunal Service, Attorney Gen-

demanding but it is also capable of giving

didates from the widest possible pool.

lic they serve, are still concerned about the

consequences for many of the people on the

cal jurisdiction and is designed to test the fol-

eral’s Office, Law Society, Bar Council, and

great intellectual satisfaction. Responding

length of the process for appointing judges.

list. Even after they succeed in the competi-

lowing qualities and abilities:

the Institute of Legal Executives in a joint ef-

to the challenge of being a just and efficient

fort to reinforce our existing initiatives and

judge is a task worthy of any lawyer’s mettle.

our selections as swiftly as possible while maintaining a rigorous assessment process.

The aim is to make sure we are testing quali-

While the legislation governing judicial ap-

The Governance of Britain: Judicial Appointments

any particular group.

tion, they have no guarantee that they will in In our view, the roots of the problem lie in

fact be appointed.

the need for more effective strategic manage-

Of course the benefits of a judicial career go

• Intellectual capacity (Ability quickly to ab-

develop new ones where necessary. The JAC

sorb information and analyse

Diversity Forum will meet for the first time

Further information on the JAC, its selection

In October last year the Ministry of Justice

ment of the judicial appointments system as

This state of uncertainty may last for a year

information);

in April to begin work on its analysis of the

processes, and current judicial vacancies are

published a consultation seeking views on

a whole.

or more until the next exercise, and in the

• Personal Qualities (Integrity and independ-

work currently in progress, the areas where

available from

meantime their situation is often described as

ence of mind; sound judgement;

it needs to be strengthened, and the gaps that

pointments, and in particular on whether the

The JAC has reduced the average time for the

being in a professional limbo, unable to make

objectivity); and

require filling.

residual role of the executive in judicial ap-

stages under its control - from closing date

firm plans for the future. Potential applicants

• Authority and Communication Skills (Ability

pointments should be further reduced.

for applications to submission of selections to

have told us what a disincentive the pros-

to explain the procedure and any decisions

Whatever the outcomes of this group it re-

the Lord Chancellor – to 19 weeks from 24

pect of being placed on a list can be to those

reached clearly and succinctly to all those

mains the JAC’s statutory duty to select on

weeks under the former DCA processes.

considering making an application. Because

concerned).

merit. We do not have targets or quotas, and

the arrangements for making judicial ap-

The Commission welcomed the opportunity

of that, the JAC has argued that it is wrong

to set out its views on the

we do not positively discriminate in favour of

important issues of independence, responsi-

But this is merely the middle segment in a

for candidates to be left in this uncertain po-

The test has been devised by Judges and is

any applicant, whatever their background.

bility and accountability

long process. Vacancies must be forecast and

sition. That is why we are very pleased to

designed to be accessible to lawyers from all

The Commission selects candidates on merit,

www.judicialappointments.gov.uk

32

the barrister

scheme that it operated. Despite the fact that the scheme in place at p.1 that time had costs under control and static. In early 2007 the LSC “consulted” on a competitive tendering system for the most expensive and most complex of criminal cases, VHCCs (historically those cases which lasted longer than 40 days in court). That consultation closed on 27th March.

In June 2007, the LSC invited bids from solicitor’s firms for VHCC cases, based on administratively set hourly rates for preparation of £145, £150 and £155. The deadline for barristers to sign up for solicitors’ bids was, after an LSC extension, 17 August 2007. The only bids invited at this time were solicitor bids, with barristers being invited by solicitors to join their bids. Barristers were therefore not involved in the submission of their own separate bids and did not have an opportunity to negotiate bids or prices.

During the consultation no advocate’s contract was provided. The first draft of the advocate’s contract was placed on the LSC’s web site on 15th June 2007 – 11 weeks after the end of the consultation period and about 5 weeks before the date for the solicitors’ bids to be in. The draft appeared to include 25-40 day cases, which the Bar had expected to stay within the Graduated Fee Scheme except for exceptional cases. This, coupled with the LSC’s express statement in the VHCC Panel Application Form that “this application does not bind either the Commission or [the signing barrister] to enter into a contract”, had the effect of pressurising barristers to sign up for solicitor’s bids. 2300 barristers signed up to solicitor’s bids, thereby reserving their position to consider the contract when issued. Throughout this entire period, the Bar Council made representations to the LSC regarding the lack of workability of the proposed scheme and the perverse incentive that low hourly rates create to drag out the length of a case and produce low quality. We warned that we did not think the scheme would work as it would not attract sufficient barristers of the highest quality – precisely those needed for these cases.

Perhaps inevitably, the bid rate of £145 per hour attracted sufficient solicitor bids to fill the volume of cases. That rate only applies to what would have been a handful of category 1 cases. For Category 2-4 cases where the LSC wants to place most of them, the rates drop dramatically. Subsequently, on the 7th of January 2008, the LSC issued the final contract and gave barristers 2 weeks to sign.

the barrister

For many at the Bar this was the first time that they had the chance properly to consider the contract or the effect of signing.

The effect of signing was substantial. Firstly, the rates were low. As a stark example, a junior barrister, being led by a more senior barrister in a case, would be paid £252 per day spent in court. On a standard seven hour day that equates to £36 per hour for a case that is likely to remain in court for at least 8 weeks. When one considers that approximately 40% of a barrister’s earnings are taken up by expenditure associated with being self-employed, the low level of pay becomes even more stark.

However, the rates were only one aspect of the package that led to more than 2,000 barristers deciding not to sign the contracts they were offered. By signing the contract the barrister would be making a professional commitment to accept any VHCC case offered to them if they were available to do it. The contract offered rates based on categories of case, with the rate dropping as the case category dropped. It was not possible to sign up to only the highest category of case.

It was a take it or leave it offer. The result could be that the most experienced QCs end up running cases in the bottom category of VHCC, at rates very much lower than the headline rates that they had signed up to solicitor’s tenders for. Further the contract would last at least 18 months and any case accepted within that period would have to be completed at the knock down rates and on the stringent contract terms. If a case were taken during the 18 month period the terms and rates would apply until the end of the cases which could be months if not years later. The contracts, properly construed, could require barristers to travel the country to fill cases without the prospect of travel being reimbursed (although it would appear from a letter from the LSC that this was not the intention or their desire). Finally, and perhaps the most disliked by the Bar, the LSC would have a right to request copies of electronic diaries to see whether counsel had the ability to take on and service cases they were or offered or had already refused.

Although the LSC’s Executive Director of Policy clarified (in a letter of 17th January) that “There is no intention by the LSC to use access to electronic diaries alone to test the reasonableness of a refusal to accept instructions”, it was obvious that this would be one tool which might be used. The Bar must adhere to a very strict Code of Conduct including the cab-rank rule. Under those circumstances barristers found the suggestion that their diaries would be scrutinised in

this way, so as to check on their turning down a case, to be highly objectionable.

The “Competition Law” letter sent to the profession on 17th January angered members of the profession: it was not good advocacy for the scheme!

With only 130 barristers deciding to sign the contract, the scheme proposed by the LSC was unworkable. The LSC therefore issued a further set of proposals on the 6th of February, with a 5 day consultation, and invited barristers to sign up to an amended contract by 27 February. However, the scheme remained a low hourly rate scheme with perverse incentives and retained the contractual terms that the Bar found objectionable. On top of that, the new proposals issued by the LSC would allow solicitors to instruct non-panel advocates (i.e. advocates who have not signed contracts), where a panel advocate is not available, at rates cut down from those in the initial contract. The solicitor would then be able (so the LSC say) to keep the difference between the contract rate and any rate he negotiated with a barrister. It would appear that quality has been thrown out of the window. The LSC was attempting to pressurise counsel into signing by creating a contract that meant, if you do not sign, you would potentially get even lower rates (but would be prohibited from negotiating higher rates), no guarantee of work, no direct payment from the LSC, no ability to negotiate the amount of time necessary on any particular task with the LSC case manager. The Bar has not taken kindly to being pressurised in this manner.

The potential result of such a scheme being introduced as that proposed on 6th February is disastrous. The best barristers will simply not sign up to cases where they have no ability to control the work or the way in which, or time by which they get paid. If a barrister is not even able to speak to the case manager at the LSC he will be reliant on his solicitor to negotiate hours on tasks that the solicitor will not be running.. That barrister will be left to undertake a task without any ability to negotiate the hours to be allocated. Clients will not receive the service they deserve and there is a risk of cases going seriously awry.

This would be both expensive and contrary to the interest of criminal justice. It would be embarrassing for the Government, especially in the terrorism and serious murder cases that fall within the VHCC scheme. So we are left with a scheme that means that the best barristers have refused to undertake and may not do on an ad-hoc basis (especially if solicitors try to negotiate down the hourly

rates) and will not sign a contract that remains disagreeable for all of the reasons stated above.

It is also worth considering the solicitor’s position. The rates offered to solicitors are also very low. There is an incentive for those solicitors who receive the cases to bid down the price on non-panel counsel simply to make the cases profitable. There is an incentive to make cases run as long as possible and to allocate the lowest level of fee earner to the case. Conversely, there is no incentive for solicitors to instruct the best counsel (even if the best counsel were willing to take the cases) because an hourly rate scheme does not reward efficiency or quality. Some of the major firms have made this point in their response to the LSC. The best firms are fully alive to the fact that they will struggle to get barristers of sufficient quality to advocate their cases and they are concerned about the result that this will have on the effective administration of justice in these cases and the service that they provide to their clients.

We are therefore left in a very sad situation, with a scheme that is flawed. A scheme that is bad for those who work within it due to

onerous contract terms and poor contract rates and is bad for defendants, with no incentive to produce high quality and the inevitable risk of miscarriages of justice. Finally, and perhaps of most significance to the Government, we are left with a scheme that is bad for the tax payer, with long and protracted cases being encouraged by a scheme that pays more the longer a case lasts.

So what is the solution? For two years (or more), we have been arguing for a task-based solution to organising the conduct of VHCCs – and the Department has argued back “not just now – but soon”. If the same effort that went into an interim 18 month scheme, which the introducer actually told us “contained perverse incentives”, had gone into drafting the new scheme, it would now be up and running. The department would have been set on a road with a scheme which met the statutory objectives in section 25 of the Access to Justice Act - value for money and a sufficient number of able, motivated practitioners - and there would have been a marked improvement in the management of these cases through the court system with consequent savings of costs and resources.

33

This is not simply the Bar banging its own drum. The Bar devised the Graduated Fee Scheme in the 1990s, with the considerable assistance of Professor Martin Chalkley, and, after a decade’s neglect, we worked up a scheme within a declining legal aid budget again for Lord Carter. At the time of his Review, the Graduated Fee Scheme was the only part of the criminal spend that gave the Government predictability at virtually certain cost. We are willing to work closely and consensually with the Legal Services Commission and solicitor’s representatives to give that same predictability to Very High Cost Cases and I am sure that the better working relationship that we have experienced with Government over the last 10 months can facilitate this work.

Tim Dutton QC, Chairman, Bar Council

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#34

ESSENTIAL READING FOR BARRISTERS

1st october 2007 - 21st december 2007

system was put in

and Disciplinary Processes of the Bar Standards

place.

3

Board” was published in July after nine months intensive work. It was welcomed by the Bar

It was a genuinely

Standards Board, the Board’s Consumer Panel,

open and evidence-

the Chairman of the Bar, and the consumer

based

groups, Which? and the National Consumer

In addition to a

exercise.

Council. This is a strong constituency for much-

public Issues and

needed change, but the real test – effective and

Questions

swift implementation – is still to come.

which elicited views

The Review process

stakeholders,

Dr

By Andrew Goodman, LL.B., MBA, FCIArb, FInstCPD, FRSA, Barrister

ROB BEHRENS

Complaints Commissioner to the Bar Standards Board

Complaints

Debora Price of London University was

Commissioner and ten years after the present

commissioned to run a quantitative

months

after

I

became

12

p.6

5

trial DNA evidence during

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9

Know your Expert

Zm^hih 8dch^YZgVWaZ Xdc[jh^dc Y [dgZch^X WZilZZc \gVe]dad\n Vc c# Id ]VcYlg^i^c\ ZmVb^cVi^d Xdc[jh^dc! V XdbedjcY i]Z ih egd[Zhh cjbWZg d[ \gVe]dad\^h ]VcYlg^i^c\ id egVXi^hZ [dgZch^X dhZ d[ i]^h c# I]Z ejge ZmVb^cVi^d VcY gZ^c[dgXZ Vgi^XaZ ^h id XaVg^[n c i]Z ild i]Z Y^hi^cXi^dc WZilZZ Y^hX^ea^cZh#

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witness “What the expert team” expects of his legal

reversed in the Commons. The Government must show change in practice, not just an appetite for it."

He added: "The role of the judiciary has been strengthened by the Constitutional Reform Act 2005, and by the creation of the Judicial Appointments Commission. However, Ministers must show themselves willing in practice to limit their own powers.

"A specific example is the appointment of the new Legal Services Board as the oversight regulator of the legal profession. That Board must be - and must be seen to be - independent from the executive, and should be appointed with independent input as we have proposed.

"Ministers must never speak or act in a way that undermines the independence of judges, however greatly they may dislike their decisions."

Turning to the issue of rights and responsibilities, Mr Vos said: "We will look closely at what can be seen as British rights: the right to a fair trial, the presumption of innocence, habeas corpus, trial by jury for serious offences, the burden of proof on the prosecution, freedom of speech, association and assembly.

"We will also examine whether citizens can have codified responsibilities, and how these would be compatible with the Human Rights Act and Convention law generally."

“THE LEGAL SERVICES BILL: NEW RESEARCH FROM THE FRONT LINE” We are just a matter of months away from arguably the most significant upheaval that the legal profession has experienced in living memory: the Legal Services Act. James Tuke, Head of Intendance Research, reveals the findings of a new report, published by Sweet & Maxwell, into the impact of the Act on the Bar and other members of the legal profession.

Bar Council Enters Constitutional Debate The Bar Council has welcomed the debates triggered by the recent Green Paper entitled "the Governance of Britain" and signaled its keen interest in using the Bar's expertise to make a material contribution to the discussions that will follow.

The Bar Council will be setting up three groups to deal with its responses on: • the constitutional issues and the suggested Bill

of Rights andVXXdjciVcXn Duties Vh Vc =Vk^c\ •VXiZY the role of the Attorney General d[ l^YZ gVc\Z the V promotion of greater awareness of ZmeZgi • ^c nZVgh! citizenship especially younger people. dc '* among dkZg c^\] Y^hejiZh Chairman of the Bar, Geoffrey Vos QC said: cVijgZ d[ i]Z Xg^i^XVa "We welcome the publication of the Green Paper > gZXd\c^hZ and I am confident that the Bar can provide h]^e WZilZZc ZmeZgi i]Z gZaVi^dc constructive input. i]Z ^c Zchjg^c\ "The iZVb citizenship objective of the Green Paper ties VcY aZ\Va in well with the Bar a^i^\Vi^dc Council's work on making c^c\ d[ i]Z hbddi] gjc access to the Bar more accessible to young people ^h]# from less hiVgi id [^c privileged backgrounds. egdXZhh [gdb "We also believe that the executive must respect both Parliament and the Judiciary.

"For that to be truly the case, things have to change from where we are now. The Government conducts consultations, the results of which are often ignored. Parliamentary committees produce well thought-out reports which are not acted upon. The House of Lords works to make improvements to Bills which are promptly

22

MEDIATION ADVOCACY: A SAFEGUARD FOR THE CONSUMER AND A MARKET FOR THE BAR While the Bar is ideally placed to bring to new markets its three traditional core skills of critical analysis, problem solving and communication, barristers have to adapt to providing advocacy in an environment which is intended to be non-adversarial

paper,

from wide range of

The Review was launched in September 2006,

PRICE 3.00

ISSN 1468-926X

Features

My report “A Strategic Review of Complaints

three

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MICHAELMAS TERM ISSUE

Making ‘good’ Even Better

14

UNCOVERING HIDDEN INNOVATION IN THE LEGAL AID SECTOR

By Dr Michael Harris, senior research fellow, NESTA (the National Endowment for Science, Technology and the Arts)

News p.18 'Glass Ceiling’ Breakthrough For ILEX Members p.19 New editor for Law Society Gazette

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facts and figures of plans and dreams

The

It’s your call” – Bar Council launches guide for aspiring barristers The Bar Council has published a new booklet explaining how to become a part of the profession.

“It’s your call”, produced in the wake of Lord Neuberger’s Entry to the Bar Working Party Report into access to the profession, will be an invaluable tool for school, university and Bar students looking to find out more about the Bar.

T

he guide includes profiles of a BVC student, mini-pupil, pupil barrister, an employed and a self-employed practitioner, a silk, and the Attorney General, the Rt Hon the Baroness Scotland QC. It explains the different components which make up the profession, including the Bar Council as the representative body, the Bar Standards Board as the regulator, the Inns of Court, Circuits, Specialist Bar Associations and sets of chambers.

The booklet explains “what you need to know before you start”, and provides a range of useful information about the required academic and vocational stages of training.

It also explains the Inns of Court scholarship scheme and how to apply for them.

The guide does not end with pupillage, and looks further to tenancy and Continuing Professional Development.

BVC student Duncan Milne said of the competition to obtain a pupillage: “Don’t be put off by statistics. They’re everywhere. Given the chance they’d rule your life. Keep it in perspective: if something is worth doing, for whatever reason, there’s going to be competition.”

Interviewed for the guide, Marina Faggionato, a pupil at Queen Elizabeth Building, said of her experience: “There is no such thing as an average first six pupillage day. The work I see varies according to whom I am working with. With pupil supervisors, the cases are high value and complex, and the number of zeros can make you doubt your eyesight. Days spent with junior tenants are a reality check; the clients are likely to be fighting over more modest assets.”

Semaab Shaikh, a junior tenant at St Paul’s Chambers in Leeds, said:

“Life at the junior Bar may lack the passion and intrigue that TV dramas would have you believe but that is not such a bad thing as I don’t think many of us would enjoy our job if it involved the plot lines of Judge John Deed! But life as a barrister at the junior end is anything but dull. There is drama, excitement and comedy.”

sent to schools, universities, BVC Providers, Connexions and Aim Higher organisations around the country said:

Patrick Walker, an employed barrister at Hammonds added his perspective:

“People should be in no doubt of the Bar’s commitment to ensure we have a profession open to any and all talented candidates.

The Bar can only flourish and retain public confidence, if it is a diverse and inclusive profession attracting the best no matter where they are.

“Seven years working as Director for Advocacy for Hammonds solicitors has presented challenges and rewards that I never imagined in twenty years as a self-employed barrister in chambers.”

“We are aware that one of the key ways of making this happen is to provide accurate and up-to-date information, which is easily obtainable. We hope that this document will provide readily available help.

Courtney Griffiths QC, joint Head of Garden Court Chambers, feels he is fulfilling a lifelong ambition:

“In tandem with other initiatives the Bar is undertaking, such as a chambers placement scheme for underprivileged students in conjunction with the Social Mobility Foundation, working with HSBC, which offers a loan scheme on preferential terms to BVC students, and the mock trials competition in schools, we hope to make the Bar an attractive career option for those who would otherwise know little about it, and who have the nascent talent to succeed.”

“From the age of eleven, I had dreamed of becoming a criminal barrister. I was born in Jamaica and my family moved to the UK when was a child. I recall a career teacher once trying to convince me I was aiming too high, and that my interest in criminal justice might be satisfied by becoming a police officer.

The job is demanding. Success requires huge sacrifices. However, I regard myself as being extremely fortunate. I have no difficulty getting up in the mornings, because I believe I am involved in one of the most exciting professions there is.”

The Attorney General, the Rt Hon the Baroness Scotland QC also took some time to explain her relationship with the profession: “It may be that some people think of it as an elitist profession, and some may be timorous about applying. But the Bar is for all who enjoy communicating, who enjoy language, who are analytical, and who want to reap the rewards of their efforts.”

Chairman of the Bar Council, Tim Dutton QC, commenting on the document, which will appear on the Bar Council’s website, and be

Copies of “It’s your call” and further information is available from Toby Craig in the Bar Council Press Office at tcraig@webershandwick.com or 020 7222 2525.

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