Barrister Magazine issue 71

the barrister

#71

ESSENTIAL READING FOR BARRISTERS

EST. 1999

11th January - 12th April 2017 HILARY Term Issue

w w w. b a r r i s t e r m a g a z i n e . c o m

The emerging evidence suggests that the impact of ABS has been positive. They have been shown to be more innovative, with no evidence of increased risks to the public -one of the main concerns when they were introduced.

Yet I am on record expressing disappointment that we have not seen ABSs deliver the scale of change that was

Conflicts of law & politics By convention, the law and politics are kept distinctly separate in the United Kingdom: it is part of our unwritten constitution. But sometimes they can come into conflict, most especially when judicial decisions have a direct political impact.

The ruling from three senior judges that the government cannot trigger Article 50 of the Lisbon treaty without first consulting both houses of parliament about the terms of Brexit is a very prominent public example. We await to see the outcome of the government’s appeal to the Supreme Court.

Behind the scenes, there are numerous

ISSN 1468-926X

Features

Alternative business structures getting it right Alternative Business Structures (ABSs) were brought in by the LSA 2007 as a way of modernising the legal market by freeing up law firms to attract external investment and develop innovative business models.

It was a controversial step and, nearly ten years later, the legal sector is still debating the pros and cons.

PRICE £2.80

10

envisaged. As I said in my letter to The Barrister in August, there are two key areas where I think more needs to be done.

Firstly, we took some time to get to Paul Philip grips with what SRA Chief Executive is complex and restrictive legislation and rules around licensing. When I joined the SRA three years ago, I was reminded, at every meeting with the profession, just how difficult it was to be licensed as an ABS. p.8 In the beginning, many ABSs’

private examples of politics and the law can come into further conflict through the legal agencies of government, not least at the Serious Fraud Office (SFO), the UK body which investigates and prosecutes serious and complex fraud. The SFO’s director, David Green QC, reports directly to Jeremy Wright, the Attorney General, who advises the government on legal matters.

The most recent high profile example of such advice given by an Attorney General is that given by Lord Goldsmith to the Labour government in 2003 over the legality of taking military action in Iraq. A former Attorney General, Sir Patrick Hastings, notably wrote that “to be a law officer is to be in hell.” To avoid direct conflict of interest, there is a political convention p.9 that no Attorney General may also

15

In conversation with Harbour The Barrister talks to Co-founder and Head of Litigation Funding for Harbour Litigation Funding, Susan Dunn, about the evolution of third party funding (TPF) and how Harbour played a pioneering role.

Talbot’s Notebook: Potential for conflict between Counsel and Witness

By Toby Talbot BDS MSD (Washington) FDS RCS

it time to re-imagine your 18 IsChambers?

By Brian Curtis, Advanced Legal

25

Duties of Counsel in Criminal Appeals

By Andrew Walker QC, Chairman, Bar Council Ethics Committee and Bar Council Vice-Chairman 2017

News 4 5

Fresh call for new problemsolving courts to be trialled amid concerns of lost momentum Inner Temple highlights the historic progress of its female members

Publishing Director: Derek Payne 0203 5070 249 email: info@barristermagazine.com Publishers: media management corporation ltd Design and Production: Jeremy Salmon email: info@wedesign.media

the barrister Hilary Term 2017

01

02 the barrister Hilary Term 2017

NEWS

w w w. b a r r i s t e r m a g a z i n e . c o m

particularly constrained as to the opportunity for progression into the judiciary.

The Bar Council commissioned this report to identify steps which could be taken by the representative body to ensure the employed Bar feels part of the ‘one Bar’ philosophy. The report has highlighted a number of opportunities for the Bar Council in this regard.

Employed barristers point to financial security & work/life balance as reasons for going in-house Bar Council plans more support for employed Bar

New research from the Bar Council, the representative body for all barristers in England & Wales, on employed barristers’ experiences shows that financial security, a good work/life balance, pension and an interesting and diverse range of work are key factors in choosing to work in-house .

The report, Snapshot Report: The Experience of Employed Barristers at the Bar, also revealed that the average salary of those at the employed Bar was estimated to be £69,466. Sixteen percent of respondents were paid a gross salary in excess of £100,000 a year. Six percent of respondents received a gross salary in excess of £150,000. Of those on a gross salary over £150,000, 50 per cent worked inhouse at a company.

Chairman of the Bar, Chantal-Aimée Doerries QC, said: “This report helps us to focus on what attracts people to the employed Bar. Barristers play a critical and valuable role inside public bodies, companies, charities and other organisations. The skills and values they bring as barristers can be

invaluable to employers. This survey shows that the work of the employed Bar is just as important as that of the self-employed Bar. “In addition, the report has helped the Bar Council to identify the respective benefits of employed and self-employed practice as career options for barristers and to design policies which could be attractive to both parts of the profession.”

A lack of encouragement by employers, and others, of those barristers employed in-house, whether in the public or private sector, has deterred many from seeking Silk or applying to join the judiciary. Although 68 per cent were satisfied with the opportunities for career progression, just 17 per cent of those surveyed had considered applying for Silk. Of those who had considered applying, only 18 per cent had actually applied, and only 4 per cent of respondents were actively encouraged to do so. Eight percent of respondents were actively encouraged to apply for a judicial appointment.

Those in Government service felt

Michael Jennings, Chairman of the Bar Council’s Employed Barristers’ Committee, said: “The in-house route for barristers is an increasingly attractive career option for many.

However, the report shows there is more to be done in law schools, the Inns and elsewhere to inform tomorrow’s Bar of the benefits of joining the employed Bar. Equally, seeking Silk or looking to take a career step into the judiciary should not be seen as something which is out of the ordinary for the employed barrister.

The employed Bar is a particularly diverse workforce with high numbers of female and BAME members; that, combined with the skills and experience which they bring, means opportunities to take Silk or join the bench should be increased and employed barristers encouraged to apply. Career progression should not be limited to in-house opportunities.

“It is not only the Bar Council which can help to raise the visibility of the employed Bar’s value. The whole Bar and the wider legal sector needs a culture shift away from seeing employed barristers as somehow not barristers in the traditional sense.

There are 2,871 employed barristers in England & Wales, that’s 18 per cent of all barristers, and they make an important contribution to society, the economy and the life of the bar.”

The survey of 300 employed barristers revealed a range of reasons why they opted for the employed Bar, including: • • • • • • • • • • • • •

Security of employment Regular salary Pension Work/Life balance Flexible and regular hours A less stressful environment A collegiate atmosphere Diverse and interesting work Annual leave Private health insurance Maternity pay Concerns about future practice at the self-employed Bar, and The ability to work as part of a team.

the barrister Hilary Term 2017

03

NEWS

w w w. b a r r i s t e r m a g a z i n e . c o m

Fresh call for new problem-solving courts to be trialled amid concerns of lost momentum

Pressure is growing for specialist problem-solving courts to be piloted as independent justice reform charity, the Centre for Justice Innovation, today launches a new report. The report, ‘Delivering problem-solving courts’ calls for ten new pilot projects in England and Wales. It also stresses the need for support of existing development projects already underway in the adult and youth justice system.

The paper is in response to the recent apparent slowing momentum for problem-solving court reform. Despite the most senior family judge, Sir James Munby, last month saying there must be ‘no rowing back’ from plans to introduce more problem-solving courts, there has been a lack of detailed plans for expected specialist court pilots announced by the Government in May. Problem-solving courts put judges at the centre of rehabilitation to tackle the root causes of crime and social harm.

The evidence shows that they have been proven to work, cutting crime and demonstrating cost-efficiencies. Several problem-solving courts already exist.

Best known are the twelve Family Drug and Alcohol Courts in our family justice system. Less widely known are those in the criminal courts. St Albans Crown Court runs a high intensity problemsolving community court for prolific drug addicted acquisitive offenders.

Sefton’s complex cases court specifically deals with offenders with mental illness

and other vulnerabilities.

Phil Bowen, Director of the Centre for Justice Innovation said:

“There is a real opportunity to enable our criminal courts to contribute to cutting crime. The evidence for problem-solving courts is compelling – they work and are deliverable when set up in the right areas, with the right local judges and well-resourced treatment and rehabilitation services.

It is essential they have proper support from government and the senior judiciary. With our courts under unprecedented strain, problem-solving courts aren’t a silver bullet but they offer a window of opportunity to cut crime, turn lives around and keep communities safer.”

Retired Crown Court Judge Michael Findlay Baker CBE, QC, founder of the St Albans Crown Court project, called Choices and Consequences, said:

“Problem-solving court projects like Choices and Consequences provide a rehabilitative programme as an alternative to custody. Choices and Consequences offers such a programme to prolific acquisitive addicted offenders who badly want to change their way of life and who are prepared to admit all their offending – often measured in hundreds of burglaries.

The benefits of these programmes and the lessons to be learned from

04 the barrister Hilary Term 2017

them should be more widely shared – particularly with those seeking to set up new problem-solving courts.”

Key recommendations for delivery of the government commitment include: •

The Ministry of Justice and senior judiciary to communicate their clear ambition for the spread of problem-solving courts across criminal, youth and family courts during the current Parliament;

•

To develop new problem-solving court projects where the local initiative and enthusiasm from both the judiciary and probation, social and rehabilitation services is most prominent To explore how changing court technology can be used to enhance the problem-solving court, for instance, virtual progress meetings To empower judges in new problem-solving courts with strengthened powers to regularly hold offenders accountable in court when they are on community orders. And to include in the forthcoming Prisons and Courts Bill the introduction of short custodial sanctions for people on community orders for drug and alcohol courts in the Crown Court To support these initiatives with costed and expert assistance

•

•

•

NEWS

w w w. b a r r i s t e r m a g a z i n e . c o m

Inner Temple highlights the historic progress of its female members.

The Honourable Society of the Inner Temple commissioned a historic group portrait of its five Lady Justices of Appeal to celebrate their achievements in reaching high judicial office.

Isabella Watling, a young, highly talented and critically acclaimed artist in the early stage of her career, was commissioned to paint the portrait which was unveiled on the 16th November 2016.

The portrait is a ‘first’ as it celebrates the highest number of Inner Temple Lady Justices ever to sit in the Court of Appeal. The painting builds on past portraits commissioned by the Inner Temple to recognise the distinguished careers and high office reached by many of its members. Several portraits highlight the many ‘firsts’ achieved by women members, from the first female barrister to be called to the Bar; Dr Ivy Williams (called 1922) to Dame Elizabeth Lane, DBE, first female County Court and first female High Court Judge in England and The Rt Hon Baroness Butler-Sloss, first woman to be appointed to the Court of Appeal (1988). Her Excellency Dame Rosalyn Higgins’ position as first President of the International Criminal Court has also been acknowledged by a portrait.

Of the eight female judges currently sitting in the Court of Appeal, five are members of Inner Temple: The Rt Hon Dame Heather Hallett DBE; first woman to Chair the Bar Council in 1998; appointed to the Court of Appeal in 2005; Chair of the Judicial College 2010-2014; Vice-President of the Court Appeal (Criminal Division) since 2013; Treasurer of Inner Temple in 2011.

The training will be delivered free of charge by specially trained barristers and judges to all advocates dealing with serious sexual offences, making this the largest pro-bono scheme of its kind.

The Rt Hon Dame Eleanor King DBE: High Court of Justice, Family Division, 2008-2014; appointed to the Court of Appeal in 2014.

The Rt Hon Dame Victoria Sharp DBE: High Court of Justice, Queen’s Bench Division, 2009-2013; appointed to the Court of Appeal in 2013. https://www.judiciary.gov.uk/you-andthe-judiciary/going-to-court/court-ofappeal-home/coa-biogs/ Isabella Watling was selected by a panel led by the Inn’s Master of Pictures, Tom Shields QC, and including Alison Foster QC, Christopher Bond and the sitters themselves.

The Rt Hon Dame Elizabeth Gloster DBE: Courts of Appeal of Jersey and Guernsey, 1993-2004; High Court of Justice, Queen’s Bench Division (Commercial Court), 2004-2013; in charge of the Commercial Court, 20102012; appointed to the Court of Appeal in 2013.

Isabella Watling studied in Florence under Charles H. Cecil and has exhibited in the 2012 and 2014 BP Prize Awards. Following the tradition of masters like Van Dyck, Velázquez and Singer Sargent, Isabella’s portraits are painted to the scale of life, under natural light and always directly from the sitter. Her other commissions include a portrait of clarinettist Emma Johnson, commissioned by Pembroke College, University of Cambridge.

The Rt Hon Dame Jill Black DBE: High

http://www.isabellawatling.com

cross-examination helps vulnerable witnesses to feel more secure and means that they are more likely to give their best and most accurate evidence.

That is in the interests of the witnesses themselves and the interests of justice.

Pro bono training launched for advocates dealing with vulnerable witnesses Vulnerable witnesses, including children and people with learning difficulties, should not be subject to unnecessarily harsh questioning in court, according to out-going Chairman of the Bar, Chantal-Aimée Doerries QC, who on 11November 2016 launched a pioneering pro bono barrister training programme.

Court of Justice, Family Division, 19992010; appointed to the Court of Appeal in 2010.

“Since a ruling in 2015[1] there has been a clear prohibition on unnecessarily repetitive crossexamination, and in cases involving vulnerable witnesses, the length and nature of cross-examination must be agreed in advance at a hearing.

Developed by the Bar Council and Inns of Court College of Advocacy in conjunction with the Circuits, the Inns, the CPS and the Law Society, the training is expected to be fully implemented by the end of 2017.

Chantal-Aimée Doerries QC said: “Giving evidence can be difficult or intimidating, especially for vulnerable witnesses, and what they have to say is often vital to the outcome of the case.

“Using specific techniques for

“This training programme takes us a step further by developing less intrusive questioning techniques and adapting them for children and vulnerable adults.”

Fifty nominated Lead Facilitators, made up of members of the Bar, judges, Crown Prosecution Service Advocates, and Solicitor Advocates have now been trained. The Lead Facilitators will, in turn, train other facilitators to deliver front-line training to barristers and solicitor advocates throughout England and Wales.

the barrister Hilary Term 2017

05

NEWS

Lawyers volunteer millions of hours of free legal advice for the public good Every year lawyers across England and Wales volunteer nearly two million hours of free legal advice to some of the most vulnerable people in our society.

National Pro Bono Week, that took place on 7-11 November 2016, is a nationwide campaign of events to celebrate the free legal services provided by the legal profession to those who would otherwise be unable to get the legal advice they need. As everyone knows, pro bono legal work is not a substitute for an effective system of publicly funded legal services.

To meet demand, the National Pro Bono Centre launched an online matching service on 7 November 2016 that will connect lawyers with organisations across England and Wales that provide pro bono services.

Consequently, there is a need for more legal experts to come forward.

Law Society president Robert Bourns said:

“Solicitors provided an estimated 1.4 million hours of pro bono legal advice to individuals, charities and community groups in England and Wales in 2015. All this free advice is given on a voluntary basis, reflecting solicitors’ commitment to their clients, the communities in which they live and work and to our wider society.

“This National Pro Bono Week the Law Society is launching our Pro Bono Charter and Manual – the go-to guide for solicitors wishing to begin or grow their pro bono work. I am immensely proud to belong to a profession that contributes its expertise voluntarily for the public good on such an unparalleled scale.”

Chairman of the Bar Council, ChantalAimée Doerries QC, said:

‘National Pro Bono Week is an important initiative. It recognises the valuable contribution legal professionals make by helping those in need of legal support. A belief in the need to ensure access to justice for all in society is part of the Bar’s DNA. This commitment is reflected in the Bar’s pro bono contribution. More than 3600 barristers, including a third of all QC’s, have volunteered to represent individuals on a pro bono basis through The independent researchers have recommended eight key principles for preparing effective Client Care Letters.

They are: 1.

2.

3.

4.

5.

6.

7.

8.

Research shows room for improvement on Client Care Letters New research commissioned by legal regulators and the Legal Services Consumer Panel (LSCP) has identified principles to help legal services providers better communicate with their clients.

Client Care Letters are required of all regulated professionals providing legal services.

Show a clear purpose Keep it concise Put it in plain English Prioritise information Personalise information Make it easy to read Highlight key information Consider additional

opportunities to engage clients These principles have been developed by the independent researcher (Optimisa) following the ‘Research into Client Care Letters’ report commissioned by the regulators and LSCP. The findings, published today, show that Client Care Letters are often not as effective as they should be, in making sure that clients understand the work that is being carried out on their behalf, or in outlining what is required of them.

The individual regulators will take account of these principles and the more detailed findings from the research to inform their work with the professionals that they regulate.

06 the barrister Hilary Term 2017

the Bar Pro Bono Unit. This Unit receives no public funding and depends on donations. Over half of all practising barristers make a financial contribution to the Bar Pro Bono Unit. The Bar’s pro bono work isn’t limited to the Unit.

Many barristers give freely of their time to help those in need of representation through many other initiatives such as the Free Representation Unit and the Employment Tribunal and Chancery Bar Litigant in Person Support Schemes. At the Bar Council we set up the Bar Pro Bono Board earlier this year as a hub for the profession to provide support for pro bono initiatives, to collate information about the Bar’s pro bono endeavours and to increase awareness about the profession’s commitment.”

President of the Chartered Institute of Legal Executives (CILEx) Martin Callan said:

“The CILEx Pro Bono Trust has its own pro bono project through which our members provide pro bono support in deserving cases. National Pro Bono Week provides an important platform for all lawyers to collaborate and celebrate their working relationship.”

Welcoming the initiative, the Chair of the Legal Services Consumer Panel, Elisabeth Davies said:”Client Care Letters are mostly ineffective at conveying the information consumers prioritise, such as information on cost, timescales, and basic client-relation contact details. Worryingly, the research also shows that Client Care Letters do not meet the needs of vulnerable consumers. There is an urgent need for Approved Regulators to rise to the challenge of supporting providers to deliver improved communication to consumers. We will continue to work with Approved Regulators on this agenda. The findings of this research must now inform a well-considered and targeted approach to addressing the communication needs of consumers, vulnerable consumers included.”

You can read ‘Research into Client Care Letters’ report on the BSB website

NEWS

New training for lawyers to improve courtroom experience for vulnerable witnesses Solicitor advocates and barristers who question vulnerable witnesses in court during criminal trials are set to undergo a bespoke training programme, the Law Society and Bar Council announced on 14 November 2016 The Advocacy and the Vulnerable Training Programme will help solicitor advocates and barristers strike the balance between advancing a client’s case effectively in court whilst ensuring vulnerable witnesses are not subjected to undue stress.

‘Victims and witnesses who feel secure in the courtroom are more likely to communicate vital evidence effectively’, said Law Society president Robert Bourns.

The training programme, which will be rolled out across England and Wales from December, was developed by

a cross-professional working group comprising experienced members of the legal profession led by His Honour Judge Rook QC. The Law Society and Bar Council will deliver this training to their members by 2018 and it is expected it will become mandatory for publicly-funded advocates who are instructed in serious sexual offence cases involving vulnerable witnesses. The training will also include techniques used to question defendants.

Robert Bourns explained: ‘Witnesses are fundamental to the criminal justice system. Giving evidence can be a traumatic and intimidating experience and the pressure and unfamiliarity of court proceedings for witnesses cannot be underestimated.

‘While significant progress has been made over the past two decades to support vulnerable witnesses during a trial, more can be done. That is why the Law Society is committed to supporting a consistent level of high quality advocacy. Stress can affect the ability of a witness to tell their story in a courtroom. This training programme ensures that solicitor advocates and barristers play their part in helping witnesses so they are best able to communicate their evidence.

We look forward to working with the Bar Council to develop and deliver this training.’

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

the barrister Hilary Term 2017

07

experiences of our approval process was poor - it was lengthy and unnecessarily cumbersome. That was to some extent a function of the legislation, but there is no doubt we could have been smarter in the way we applied the rules. p.1

The good news is that since then, things have improved. Our target is to approve all new firm applications within three months, and many are turned around within a month. Our record to date is nine days from application to granting the licence. We have achieved this by really listening to what the profession and firms told us and working together to improve our processes. I am pleased to say that the tone of those meetings with the profession has changed, with good feedback on firm’s experience of changing their business model to become an ABS. But, we have more to do. Ensuring swift turnaround for aspiring ABSs is good for business and good for the wider economy. So we are listening to customer feedback and will continue to refine what we do.

We hope to be able to improve further.

The Ministry of Justice has recently made proposals to remove unnecessary restrictions for ABSs wanting to enter the legal services market. Currently there is a one-size-fits-all approach and we need to recognise that ABSs, as always intended, come in many forms.

After all, around half of the 578 ABSs we have licensed have chosen that model as a route to bringing a spouse or partner into the ownership of an existing firm. And then there are the global players - including accountancy firms seeing opportunities to provide legal services as part of their wider business model.

The complexity of business models can vary significantly, and our processes should be tailored to accommodate that. Meanwhile, we also need to remove unjustified differences in the treatment of ABSs and traditional law firms. For instance, getting rid of the need for an ABS to have a practising address in the jurisdiction.

I believe that the Government’s proposals will allow us to be more targeted and proportionate, delivering an even better experience for law firms choosing the ABS model.

This is all good news. ABSs bring fresh capital and thinking into the market, and are good for competition and improving choice. Research shows that they are more innovative than traditional firms, being up to 15 per cent more likely to introduce a new legal service. That can only help to meet the demand for affordable services.

The second area where I think we need to do more, as a sector, is to really embrace the opportunities that multidisciplinary practices (MDPs) can offer.

MDPs can give the public and small businesses the obvious benefits of accessing a range of related services – such as legal services, accountancy, or estate agency or even undertaking – from a single firm. I believe that brings huge opportunities for lawyers to, for example, sell into both the accountancy and legal markets.

We need a vibrant legal market, a market that gives business what it needs. Small businesses recognise the challenges, with 86 per cent saying legal services are essential for running their businesses. But only one in ten small businesses use a solicitor or barrister when they have a legal problem – yet almost half use accountants for advice.

Despite seeing some big players entering the market as MDPs, we did not initially see the growth in MDPs that was anticipated. Why is that?

A key problem has been the extent to which the activities of non-lawyers within MDPs need to be regulated. The effect of our rules was that any ‘legal activity’ within a firm we regulated or a connected business, even if it was not a reserved legal activity, had to be regulated by us.

Under our old rules, if an accountancy firm wanted to add reserved legal

08 the barrister Hilary Term 2017

activities to its services and applied to become an ABS, then all of that firm’s legal services, including the non-reserved activities carried out by accountants, would also have fallen under our regulation. And if that firm wanted to separate its reserved legal activities out, this was likely to have been prevented by our Separate Business Rule. In practice, that meant that a number of firms that applied had to go through protracted processes and be granted complicated waivers to achieve market entry.

Happily, we have been able to amend our arrangements so they are more targeted, and can make compliance more straight forward. That should encourage the development of MDPs, benefitting both customers and businesses. Several legal services/ accountancy MDPs have told me how much they have learned from each other and the deepening of the client relationship.

And last year, we levelled the playing field by removing the Separate Business Rule, so traditional law firms can also offer non legal services, acting as ‘one stop’ shops, expanding their offer and competing with MDP ABSs. I am positive about the future for ABSs. They are not of course a panacea rather one part of our much larger programme of reform. ABSs and MDPs of every sort can improve access to affordable legal services for individuals and small businesses.

Changing our processes and reducing bureaucracy is key. We want to give the firms we regulate - many of which employ barristers - more flexibility. We want them to be able to get on with their own business, and focus less on the business of ticking regulatory boxes.

Making sure existing and new businesses can chose the right business model for them is fundamental. The future for ABSs is rosy, and as we all work towards a healthy, competitive legal market post Brexit, that is a winwin for everyone.

be a cabinet minister. Instead, p.1 Wright is directly answerable to parliament.

But sometimes, there are other potential conflicts of interest in the wider sense – particularly over economic issues that might adversely affect the nation’s financial health. This is arguably most acute in the catalogue of prominent British companies which are currently the subject of an SFO investigation, among them: Airbus, Barclays, GlaxoSmithKline and Tesco. In September, three former senior Tesco directors were charged with fraud in relation to a £265m+ accounting scandal.

Top of the list is Rolls-Royce, a byword for excellence as one of Britain’s most celebrated companies. It too is being investigated by the SFO over international bribery allegations. As a measure of how important RollsRoyce is considered for the British economy, government ministers have had meetings with the company’s representatives on more than 200 occasions since the coalition government came into office in May 2010, according to the Campaign Against Arms Trade.

In many of the countries in which Rolls-Royce operates, corruption is endemic - and historically seen as a necessary part of doing business.

However, enforcement of tough legislation in the US (the Foreign Corrupt Practices Act) and the UK (The Bribery Act 2010) means that companies are subject to prosecution if bribery is discovered. Central to the allegations against Rolls-Royce is the suggestion that the company won very large contracts in foreign jurisdictions through the use of multiple agents to pay bribes.

Inevitably, a prosecution would create enormous reputational damage. One of the challenges facing the SFO is that the government retains a golden share in Rolls-Royce, allowing it to veto decisions that might threaten the national interest. If a prosecution did proceed, the SFO, as an agent of government, would be prosecuting a

company which is partly owned by the government.

This apparent conflict might be circumvented by only prosecuting individual company employees rather than the senior management of Rolls Royce, or indeed, the company itself.

If that were the case, then there is an immediate precedent: the prosecution of Libor traders employed by prominent UK and international banks in a series of prosecutions, rather than prosecuting the banks which benefited from the alleged manipulation of Libor, or the senior management of those banks.

Of course, there is no direct evidence that the banks or their senior management were personally culpable.

Indeed, there has been uniform denial that any senior banker knew anything about what was routinely going on in their trading rooms in terms of Libor manipulation. But one only has to look at the list of banks that have already been found guilty of Libor manipulation and fined accordingly by the Financial Services Authority (FSA): Barclays paid £59.5m, UBS £160m and Deutsche Bank €227m.

Initially, the SFO did not prosecute Libor because of a lack of available funding, according to the SFO’s then director, Richard Alderman.

The money was soon found via an arrangement called blockbuster funding – an emergency top up granted by the Treasury for large scale investigations. The political pressure to investigate Libor only arose from a storm of adverse publicity over alleged manipulation by Barclays in 2012.

Marcus Agius, Barclays’ chairman, resigned immediately as did the bank’s CEO, Bob Diamond.

However, falling on their swords was regarded as a sufficient price to pay: no bank director or senior employee was subsequently charged with any offence relating to Libor manipulation, despite the fact that the practice was recognised as widespread between the sixteen banks which fixed the daily Libor rate with the Bank of England. The same applies to every other bank in which traders have been

investigated and charged by the SFO. Not one bank or bank director has been investigated or charged.

The decision by the SFO not to do so seems highly political, and may have been subject to some external political influence. It remains a matter of conjecture. But a quick look at the background may help. Barclays is the second largest bank in the UK and one of the world’s largest. It is a bedrock of the UK economy, which is itself so disproportionately dependent upon financial services. Prosecution of the bank or its senior directors could have had a very damaging impact on the bank, and more generally, on the City’s reputation. Just as the UK banks were deemed too big too fail in the banking crisis of 2008-9, perhaps they were also seen as too big to prosecute in the ensuing Libor scandal.

It will therefore be of particular interest to see exactly how the SFO proceeds with Rolls-Royce. Just like our biggest banks, the UK’s flagship engineer employs many tens of thousands of people, it has a £73bn order book and supplies more than 50% of the global market for engines of wide-bodied jets.

This success may be affected as a result of Brexit.

But even if the legal case against the company and its principal agents (i.e. the directors) were sufficiently strong, it still may not be politic for the SFO to prosecute them. Perhaps, as with the banks, more middle ranking staff may find themselves in the firing line instead. Should that be the outcome, whether any of those 200 ministerial visits might have played any part in such a decision would also remain a matter of pure conjecture.

Dominic Carman,journalist, writer and legal commentator

the barrister Hilary Term 2017

09

Litigation Funding Services

In conversation with Harbour The Barrister talks to Co-founder and Head of Litigation Funding for Harbour Litigation Funding, Susan Dunn, about the evolution of third party funding (TPF) and how Harbour played a pioneering role.

1

Susan, we understand Harbour is celebrating its 10th Anniversary in 2017? Isn’t that ‘ancient’ in funding terms?

(laughs) Well, maybe not quite ancient but definitely mature in that we were present from the very start and I have been funding since 2002. Harbour has been at the forefront of many developments ever since and is solely focused on TPF; always has been. The evolution of funding with just £1 million and a team of two from a converted carpet factory in Kidderminster, into an international activity with £410 million to fund large commercial disputes and a team of 25 talented individuals seems like an amazing journey.

2

So what does that mean for Harbour as a business?

We can truly say that we have seen it all. Our litigation experience, funding expertise and track record is, in my view, unrivalled. We have funded in 13 jurisdictions and, currently, 5 different arbitral forums. So far, we have reviewed well over 2,300 large claims and funded a wide range of cases in a number of jurisdictions, from large arbitrations, shareholder disputes, fraud claims arising out of insolvencies to class actions, offering access to justice.

3

How has third-party funding evolved since you started funding in 2002?

Funding is now adopted by more types of claimant, not just by those without the means to litigate. It is finally regarded as a finance tool in that the claimant may want to hedge their legal costs or may need working capital for other purposes. More law firms and chambers now instinctively consider TPF as part of the process when dealing with a claim. We also find they are less coy to admit that they are not so familiar with TPF. Globally, jurisdictions have made tremendous headway in embracing TPF. Hong Kong and Singapore being the most recent examples.

4

5

Are there any hurdles you need to overcome?

Everyone who approaches us think they have a winnable case and it is sometimes hard for them to accept that we may not agree. Some struggle with the concept of us taking a share of the proceeds which in our portfolio varies from 7.5%to 50% depending on the risk, budget size and length of the claim. In our considerable experience, statistics for success at trial on what we are advised are ‘strong cases’, are no better than 50-50. In essence, the losses need to be absorbed by the gains as losses result in a 100% write-off.

6

What are the most common misconceptions about funding Harbour encounters?

People believe we drive the claim but nothing could be further from the truth. The claimants and their lawyers fully control the litigation. As we pay the legal bills regularly throughout the life the case, we will be kept informed of its progress. If the claim is unsuccessful, neither the claimant nor their legal representatives need to repay the legal costs.

That is our risk. This is why due diligence is key for us; it explains why an in-depth review process takes place at the very beginning, as that is our only opportunity to decide on the merits of a case. We only back cases we believe will win, but we all know, even good cases don’t succeed. There is a misconception that corporates are less interested in TPF but some of our team, previously in-house counsel at large corporates, confirmed that they did not always ring fence huge legal budgets.

7

Which 3 questions should anyone considering funding ask?

• • •

How is the claimant and funder going to get paid if this case is successful and how much will they realistically get paid? (Enforcement issue) How can I be sure the funder I use has the funds to see my case through to conclusion?

Have I thought carefully about what assumptions lie behind the budget for the case?

And where is it going?

In short, we believe TPF will be used globally as we expect the remaining few countries who have not yet endorsed it, will do so, and the profile of the funded party will include all types. I predict an increase in the ‘large corporate’ use, on both the claimant and defendant side of a matter.

10 the barrister Hilary Term 2017

Harbour Litigation Funding London, T +44 20 3829 9320 Hong Kong, T +852 3978 2359 www.harbourlitigationfunding.com

Litigation Funding Services

Third Party Funding: a “nice to have” or a necessity?

By Lucy Pert, Director of Litigation Funding, Harbour Litigation Funding

The use of third party funding for litigation has grown exponentially over the last few years, since its birth a mere fifteen years ago. Through pioneering developments in Australia, it has been aided by favourable decisions such as Campbell’s Cash & Carry Pty Ltd v. Fosfit Pty [2006] HCA 41 and QPSX Ltd v. Ericsson Australia Pty Ltd (2005) 219 ALR 1, 54 as well as important decisions of the High Court such as Arkin v. Borchard Lined Ltd. [2005] EWCA Civ. 655. It is now estimated that funds managed by litigation funds active in the UK, are over £1.5 billion.

corporates and financial institutions now use litigation funding as a way to set legal budgets with greater certainty, manage the risk associated with the costs of large scale litigation and place legal spend off-balance sheet. As corporate clients have to negotiate a more uncertain financial future (Brexit and the outcome of the US election for example), this will increase pressure on their legal budgets. Law firms commonly speak of corporate clients demanding year on year decreases in external legal spend. It is likely this will result in an increased use of third party litigation funding.

While once the domain of the insolvent or indigent Claimant, multi-national

Driven to a large extent by client demand, the litigation community

needs to become better versed in the use of third party litigation funding in order to keep pace in an increasingly competitive legal market. Members of the Bar may imagine that it is for the solicitors to manage and advise their clients on funding. Increasingly, however, barristers get involved in claims at an earlier stage and work directly with in-house solicitors or lay clients. Consequently, it is incumbent on barristers to keep abreast of the latest trends and developments in third party funding.

This article discusses the principles behind third party funding and offers useful pointers on aspects to which members of the Bar should be alive.

the barrister Hilary Term 2017

11

Litigation Funding Services settlement offer, the funder may reserve the right to have an Third Party Funding

independent mediator involved in determining whether a settlement offer should be accepted.

In a nutshell, the funder agrees to pay the legal bills

In certain predetermined circumstances, usually related to a

of the Claimant, including barristers’ fees and other

material adverse change, a funder may be able to withdraw

disbursements, every month throughout the life of the case,

funding. Rest assured, such a decision will not be taken

until the matter concludes.

lightly as it results in the funder losing all of the funds invested in the claim to that point.

Opinion on the merits A key feature of third party funding is that it is non-recourse;

The necessity of setting out in the funding agreement what

if the Claimant is not successful, the funder writes off its

is to be done in these circumstances is considered to be best

investment and neither the Claimant, the solicitors nor the

practice, as made clear in the Code of Conduct for Litigation

barristers have to repay any amounts. Consequently, the

Funders established by the Association for Litigation

initial due diligence undertaken by a funder is crucial. This

Funding. The Code also sets out standards of practice and

is where barristers play an important role in providing

behaviour to be observed by funders.

opinions on the merits of a claim, which in turn can lead to securing the instructions to conduct the whole action.

Disclosing the existence/identity of the funder There is a live debate both in the courts and the

Budgeting

international arbitration community as to whether the

The funding agreement is built around a detailed budget

Claimant should be required to disclose that it is working

and barristers’ fees form an important part of this budget.

with a third party funder and the identity of that funder.

While rarely the favourite pastime of lawyers, post the 2013 Jackson reforms, budgets are increasingly required by the

In a recent decision of the High court, Mr Andrew Barker

Courts. Even prior to the legal reforms, clients were driving

QC, ruled that he had ancillary power to order the claimant

the demand for greater certainty around the litigation

to identify any “non-altruistic” third party funders to allow

budgets. The days of paying an open-ended amount for the

the Defendant to apply to make the funder provide security

lawyers’ hourly rates is coming to an end.

for costs. (See Wall v The Royal Bank of Scotland Plc [2016] EWHC 2460 (Comm). For a contrary position see

It is important that barristers and their clerks are involved

the judgment of HHJ Keyser Q.C., (Dawnus Sierra Leone

in the costs budgeting process. When barristers (or their

Limited v. Timis Mining Corporation Limited [2016] EWHC

clerks) have not been consulted directly on the budget, this

B19 (TCC)), in which the Court found that the Defendant was

can result in significant inaccuracies. Budgeting can be a

not obliged to disclosure the identity of the funder funding

challenge for barristers because the instructing solicitor

its cross claim, as to do so at that stage in the proceedings

controls the litigation strategy and members are not

would be inappropriately intrusive and in the nature of a

always instructed from the very beginning. That said, as

fishing expedition. This topic is also the subject of a live

experienced litigators funders understand that the course

debate in the context of international arbitration.

of the litigation is not always predicable from the outset.

Experienced and reputable funders will not panic if, later

Quite apart from the legal debate, informing the Defendant

down the road, there is a need to amend the budget for

that the claim is funded may send a powerful message as

reasons not anticipated at the outset of the funding.

the Claimant clearly has the resources to fight the claim all the way, and that the claim has withstood the scrutiny of a

Management of the litigation

robust due diligence process. On the other hand, disclosing

The rules vary from jurisdiction to jurisdiction, but in most

the presence of a third party funder can result in satellite

instances the funder cannot be directly involved in the

litigation which unnecessarily increases costs, by defendants

running of the litigation itself. They are, however, kept

who seek to distract or adopt a scorched earth approach to

appraised of major developments as the claim progresses.

the litigation. Equally, large corporates might object to the

There are certain instances where a funding agreement

Court’s intrusion into their finances when their ability to pay

might influence the decisions made by a funded party. As

is not in doubt.

regards settlement, for example, the funded party and the funders’ interests are aligned in that both are looking to achieve the best outcome. If, however, a client ignores its own legal counsel’s recommendation to accept a

12 the barrister Hilary Term 2017

Alternative fee arrangement Not all third party litigation funders require the lawyers involved in the cases they fund to work on a discounted

Litigation Funding Services basis or an alternative fee arrangement, although those dealing with smaller claims or without an in-house due diligence capacity may do so.

In addition, solicitors are increasingly working with barristers at the outset of a claim seeking their opinion on the legal or proposed litigation strategy.

Alternative fee arrangements are attractive to clients as they reduce the amount of money that must be spent up front. These arrangements can be entered into on a standalone basis or in conjunction with a funding agreement.

While the funder does not typically control the litigation, or the choice of counsel, their experienced teams of lawyers are sometimes asked their opinion as to the right choice of barrister for a particular claim.

Increasingly barristers agree to work under a Conditional Fee Agreement (“CFA”) whereby if the claim is successful, counsel will be paid their full fee plus a possible success fee but will receive no fees (or only the discounted fee if working on a modified CFA) if unsuccessful. Pursuant to the Legal Aid Sentencing and Punishment of Offenders Act 20212 (“LASPOA”), and the Conditional Fee Agreements Order 2013 the uplift on a CFA is no longer recoverable from the losing party. The exemption that was made in the case of an insolvent Claimant has, since April 2016, also fallen away.

Third party funding allows meritorious claims to proceed that would not otherwise have been pursued. In this way, third party funding should be seen by barristers as a way to grow their practice.

Being abreast of developments in third party funding and possessing an in-depth understanding of its working, can be a way to gain an edge in an increasingly competitive legal market. Third party litigation funders are now a well-established part of the litigation landscape.

Understanding funding and knowing the main players in the funding market should no longer be a “nice to have” for members of the Bar, but a necessity.

Recently, in the Commercial Court, HHJ Waksman QC held that the costs of third party funding in the context of an ICC arbitration were recoverable as part of “legal and other costs” within the Arbitration Act 1996 and the ICC Rules (see Essar Oilfield Services Ltd v Norscot Rig Management PVT Ltd (2016) QBD (Comm)).

Finally, pursuant to the Damages-Based Agreements Regulations 2013, it is possible to enter an agreement where the amount of counsel’s fee is linked to the amount of damages or debt recovered (“DBA”). Certain funders have developed a back-to-back funding product for a DBA, whereby the funder will fund the barrister working on a DBA for the duration of the litigation and share in the proceeds upon success.

Why does Third Party Funding matter to the Bar? The way in which clients access legal services is changing. Solicitors can encroach on the work of the Bar and, similarly, barristers have been permitted to take instruction directly from clients. More and more, in house legal teams seek to access the Bar directly for advice and representation. For example, the legal press recently reported that BAE Systems, The Crown Estate and Coco-Cola Enterprises are developing barrister panels. In these circumstances, barristers may find themselves having to advise on financial aspects of litigation such as third party funding.

the barrister Hilary Term 2017

13

14 the barrister Hilary Term 2017

Talbot’s Notebook: Potential for conflict between Counsel and Witness

By Toby Talbot BDS MSD (Washington) FDS RCS

S

pecialist in restorative dentistry, prosthodontics, endodontics and periodontics with over 20 years as an Expert Witness with a specific interest in dental negligence litigation claims, Toby Talbot shares his thoughts on dentistry and medico-legal matters at the coalface.

The protocols between warring litigious parties are well established - Counsel represents their Client either acting for the Claimant versus the opposing defendant, practitioner or Health Authority, or for the Defendant in a claim for damages. The Expert acts for the Courts and must remain wholly non-partisan, a fact reiterated each time a report is formally addressed to the Court. But, however clearly drawn the battle lines, there are a several ways they can be so easily blurred...

Beware of any initial requests for a brief review of any case when only limited documentation has been made available as part of a scouting exercise. This usually means Counsel is trying to determine whether a case has a favourable chance of success without spending any more money than necessary. It’s effectively trying to do it on the cheap and it exposes the Expert if that opinion is not addressed to the Courts. If at a later date Counsel goes elsewhere for a more thorough report, the aforementioned Expert can find themselves with a claim against them if the later report contradicts your own. If any report is addressed to the Court, only the Court is able to act against the Expert.

Don’t compile reports unless you have sight of all the relevant original documentation. Summaries and transcriptions by legal and clerical staff are subject to typographical errors and omissions, not least because legal clerics don’t understand medical and dental terms, except at the most basic level.

Many cases are now finding their way to my desk following the outcome of a Conduct Committee hearing conducted by a professional body. This is invariably occurs when a case of Fitness to Practice has gone against the practitioner concerned. Although the Patient has had their day in Court, they still trot off to a Solicitor to sue for damages.

What the patient may not appreciate is that Fitness to Practice charges are not the same as the Failure in Duty of Care that has led to quantifiable damages or Causation.

The doctor or dentist may have overlooked certain blood tests or diagnostic x-ray’s and is thus subject to criticism by the professional conduct committee, but unless this oversight has led to untoward consequences with subsequent harm or injury, there is no Causation and therefore no consequence of that omission.

It is also worth noting that although a professional body commissions an Expert for guidance, their Expert never examines the Claimant. In my experience this can lead to misguided decisions against practitioners. When I have disagreed with the conclusions of Conduct Committees I have often been told by instructing Counsel that I am not permitted to contradict their findings. A wholly misinformed assumption.

Many an Expert will find themselves instructed to provide only a Current Condition, Prognosis and Future Treatment Report after Counsel have previously obtained a favourable Breach of Duty and Causation Report. Watch out for this one.

It is invariably made by an expert who has made conclusions based on the documentation alone without examining the patient. What Counsel do not understand is that the details of the clinical records will invariably influence prognosis. If I review the records and conclude after I have examined the patient that patient compliance is so poor that the previous practitioner was not to blame, then this will invariably influence my own treatment recommendations for that patient.

As an example, let’s take a patient who has been under the care of a general dentist for 20 years before they discover they have advanced periodontal disease with bone loss that will invariably lead to tooth loss. A review of their dental records shows limited documentation related to assessment of the gums, except intermittent advice to brush their teeth a bit more, and routine scaling every six months. When the patient attends another practitioner they suddenly feel shocked and aggrieved due the “failings” of their previous practitioner. Blame is apportioned and a visit to Counsel ensues. An initial

the barrister Hilary Term 2017

15

Breach of Duty Report follows after a review of the dental records where the omissions are serially pointed out by the Expert.

In the meantime, the patient (now Client) trots off to a periodontist who reinforces the terrible state of the gums and the enormous costs of complex implant dentistry that is required to put things right. Due to the complexity of the proposed treatment, the former Expert cannot provide an opinion as he/she is a general dentist with no specialist training. In addition, their report did not allow them to examine the patient.

I am then instructed to exam the Client to provide the Current Condition, Prognosis and Treatment options perhaps 18 months after they attended the periodontist.

At the consultation the Client presents with ongoing severe active periodontal disease associated with abundant plaque deposits throughout. It is clear this patient has not taken a blind bit of notice despite repeated visits to the periodontist, and is quite ill- suited to expensive dental implants. Not only do I consider that he/she is a candidate for conventional dentures, but I consider that he shows such a disregard for his own responsibility for optimum oral health that in all probability he is behaving as he did with the Defendant, ignoring advice and failing to comply.

16 the barrister Hilary Term 2017

In essence, the Client is wholly culpable for their own tooth loss.

It may not surprise the Reader that Counsel are often furious with my conclusions and imply that I have ventured beyond their instructions for the Condition and Prognosis Report.

Not so, I point out. My duty is to the Court.

Their error is to assume that a second Expert will always agree with the conclusions of a previous Breach of Duty Report. The only way to avoid contradictions between the two reports is to ensure only one Expert is engaged.

In another case involving untreated periodontal disease I found in favour of the patient. Subsequent quantum of £3,600 was offered by the indemnity insurers which led me to file the records for archiving. Imagine my surprise when I received a demand for £30,000 from the patient’s agents three months later as a consequence of my failure in my duty!

It transpired that during previous meetings with Counsel, the Client’s solicitor had indicated to the Client that he could expect a pay out of £35,000. As a consequence, the Client issued instructions to the same solicitor who had instructed me to sue for the difference of what he expected and what he finally received. The Author invites the Reader to consider whether there is an integrity issue, and whether the solicitor

should have referred the case to another firm.

This is not an isolated incident. Over the last 20 years I have received several instructions from one of the larger legal firms in my home city of Bath. They have a dedicated division handling medico-legal instructions. One bright morning my clinic doormat was graced with a letter from them representing one of my own patients pursuing compensation for treatment received. Not only did they not consider the possibility of any conflict, but the patient was a solicitor himself from Dorchester. The case was subsequently dropped. Needless to say, I have refused to accept any instructions from them since.

In my experience, the consequences of soured relations between Expert and Counsel are several: 1 Deprivation I have received no response after sending a report and the anticipated payment of my fee fails to arrive on time. Some firms have resisted paying my fees which invariably leads to a claim in the small claims county court and a complete breakdown in our relationship.

2 Extension One firm forwarded a list of 30+ questions which they stated were necessary because they considered my report failed to clarify certain issues. Furthermore, they did not expect to pay extra for the responses which took more two hours of my time. It was clear that from the questions provided indicated that the solicitor in question had awarded himself an honorary degree in dentistry.

3 Procrastination Firms have asked for a precise breakdown of time allocated for the report and then quibbled endlessly about minor typographical errors.

4 Omission Several firms have asked me to omit certain paragraphs that weaken their case. When I refused, they complained that I had sent the report in pdf format and asked me to re- send the report as a Word document!

5 Disqualification Some firms have tried accusing me of venturing outside and beyond my area of expertise. It is to be noted that, as a former hospital consultant and a Fellow of the Royal College of Surgeons, my understanding of general medical and surgical issues is likely to be a little more than the general dental practitioner. I have been responsible for patients undergoing critical care, victims of severe road traffic accidents, and head & neck oncology patients. But I am a dentist!

This old lag isn’t one to offer criticism without constructive advice.

1 To avoid many pitfalls for the office of Counsel, I recommend due diligence is conducted by the solicitors’ office to ensure that the selected Expert can deliver the goods.

2 If the case is simple and straightforward and thus wholly within the remit of a general practitioner, you can commission a general dental practitioner.

3 But you may need a dental expert. A maxillo-facial surgeon can give you a critical appraisal of a wholly surgical issue. He or she cannot give a dental opinion. If the problems relate to periodontal disease, find yourself a Periodontist. If the problems relate to failed root canal treatments, find yourself an Endodontist. Failed denture or crown and bridgework? Get yourself a Prosthodontist.

Is the case multifactorial and covers a broad range of dental problems? Get yourself a Specialist in Restorative Dentistry. They are all dentists, BUT they’re all different creatures.

4 Checkout whether the Expert is still active at the coalface.The author attended a professional meeting in London quite recently and met a colleague who is very proactive as an Expert Witness. He has just celebrated his 85th birthday having retired as a clinician 20 years ago. How on earth can Counsel expect him to be up to date? He will invariably find himself before a judge (in all probability and ironically of advanced years) giving evidence only to be publicly humiliated when asked the ultimate question by the opposing QC – when did you last undertake a similar procedure?

Finally, the Reader is reminded of the influence of the Wolfe Report a few years back. Partisan conduct whereby former practitioners would consider it their mission to protect colleagues has been stopped to reflect professional transparency and candour.

Gone are the days whereby senior retired medical/dental colleagues can dabble in report writing for a bit of pocket money without finding themselves humiliated in Court, outed for being out of touch with current clinical practice. Court immunity has now become a thing of the past, resulting in a considerable reduction in our numbers. Professional training and registration of Expert Witnesses has culled the amateurs.

May they RIP.

All the views and opinions expressed by the author are personal but I would welcome public debate on all the issues included.

Email: toby@talbotclinic.co.uk Website: www. talbotclinic.co.uk Tel: 01225 426 222

the barrister Hilary Term 2017

17

Is it time to re-imagine your Chambers?

By Brian Curtis, Advanced Business Software and Solutions Limited helps to liberate the workforce with a culture of autonomy, accountability and empowerment.

Fast and reliable connection to the internet outside of work, with use of the latest technology devices and access to your digital channel of choice, is now commonplace within day to day living. Given value is based on personal expectations, how does a company react and anticipate expectations within this digital era in order to maintain an engaged and responsive workforce? Furthermore, what will happen if clerks and barristers continue to receive sub-par technology solutions in chambers?

When Clerks and Barristers look around the market for their next position they could well be attracted to chambers that share a mind-set with them and are prepared for the future

2015; the UK was named the least productive European nation in the G7. This startling and unsatisfactory statistic, combined with the current economic climate points to the need for us now, more than ever to make our businesses more efficient, agile and dynamic. If these figures weren’t bad enough, the Brexit vote this year has created even more uncertainty within the legal market. In order to thrive, it is becoming increasingly important to rethink old formats, lose preconceptions and ultimately, re-imagine our businesses.

How is the digital era changing the legal market and how can businesses turn this change into an opportunity?

Consider these three major areas and how they can help you re-imagine your chambers to give you an edge for the future: •

•

•

Your team: re-imagine your employees operating at their full potential, using digital technology to adapt and enhance the way they work and to ensure you have an agile workforce. Everyone in Chambers needs to understand the business aims and work together to best optimise your workforce Your leaders: re-imagine your entire team. The management team need to agree that the time for change is now and revitalising business practices is the best way to begin. Gaining control by having connected, real-time information on the projected performance of your chambers, providing actionable insights to spot fluctuations and predict trends to ensure you can stay ahead of the game Your customer service: re-imagine transforming the service you deliver for your clients, making a positive impact on their lives thereby driving satisfaction and loyalty.

Your re-imagined team: A digital transformation The changes digital technology has made to our society means traditional norms are no longer relevant, effective or appropriate. Nowhere is this more visible than within the workplace, causing a significant digital dilemma for chambers. Workplace agility is important for staff who are able to better communicate and collaborate, as well as work more efficiently thanks to digital technology. It

18 the barrister Hilary Term 2017

When Clerks and Barristers look around the market for their next position they could well be attracted to chambers that share a mind-set with them and are prepared for the future.

In particular, the millennial workforce introduces a new kind of employee, with different attitudes and ambitions. This ‘born-digital’ generation expects a workplace responsive to its needs and expectations of what work is like. Having a forward thinking approach and the right tools to successfully implement business change will be very attractive to this generation. Investing in the latest technology and educating employees on the latest digital technology allows them to be efficient and encourage a culture of innovation. By ensuring any manual, repetitive processes that can be automated are, firms can introduce new capabilities with minimum disruption. The allowances of technology can then prevent employees from a restricted work life giving way to create a flexible, agile and productive workforce.

Take some time to reflect on your firm’s engagement with technology and consider: • •

• •

Are your clerks and barristers empowered with the right tools to be agile?

Have you automated any of your manual processes, freeing up your teams from low value-add activities that can be time consuming, frustrating and prone to human error?

Does your chamber have secure access to the right information from any device, from any location promoting flexibility and pace?

Have you considered how the latest technologies, such as cloud, social and mobile can save time and allow employees to conduct more value-adding operations and tasks?

Your re-imagined leaders: Looking forward and tactically thinking With the legal industry bracing itself for radical disruption, chambers need to find new ways of not only keeping up, but keeping ahead of the game. Digital technologies afford the management team the opportunity to gain control quickly and in real-time with data-driven insights. Clients expect agility so to maintain your client base, you need to surpass their expectations.

So how do you move to become a connected, agile leadership team and why see it as a priority? If you have access to real-time information across your company, with up-to-date business forecasts and real-time mobile access

to client information, imagine how it might transform your world. With data held in centralised systems, there’s no need for time-consuming data set comparisons. Imagine the potential impact with leaders freed up to make decisions faster with confidence in a streamlined and connected view of the business. As information driven decision making comes into play, leaders can use a digital dashboard to identify unexpected fluctuations, weaknesses, trends and threats. The board would be freed up to collaborate rather than compare, spotting inefficiencies, analysing the insight from their data into actionable insights, strategies and tasks.

However, by altering your mind-set, this changing playing field gives you a chance to reimagine your future. Every leader can unearth and seize new opportunities giving each business the opportunity to transform and rebuild their future. Digital technologies need to become the backbone of a business to ensure they have the capabilities to innovate quickly – before the competition. A connected infrastructure will ensure you have the insight to spot an opportunity and assess its value thereby increasing client base and client satisfaction.

Some questions to consider: • • • • •

How much time do you spend getting an up-to-date view of the business?

Do you have a technology infrastructure that is connected across the organisation, providing one view of chambers?

How important is understanding the role and benefit of digital technologies within your future strategy?

Do you have the right data from which to make informed decisions, spot threats and identify opportunities?

Have you ever tried to re-imagine your business and what it would take to consider yourself as agile and ahead of the game?

Today, the term loyalty is under the spotlight as companies constantly push to encourage and incentivise clients. As each new technology emerges, chambers need to – and should be - reviewing, reimagining and reshaping what they offer to adapt to new demands.

Conclusion: are you in the right place to re-imagine your business?

The digital era is resulting in chambers and their processes becoming more transparent, making it clear which firms have been agile enough to adapt, which are failing to embrace the digital opportunity and keeping up with the new way of working – and therefore the competition.

Consequently, the new digital culture is driving firms to assimilate the new world, in order to move forward and transform themselves to plan for future success. Leveraging the power of a digital business is no longer simply about incorporating digital technologies into the organisation. It’s about re-imaging the organisation and the culture within it to drive innovation, to drive change and to drive the business forward. The question for every chamber therefore has to be: are you in the right place to re-imagine your business?

Your re-imagined customer service: responsive; excellent; innovative Customer service was one of the first areas of business to be transformed by digital technologies as consumers become increasingly expectant regarding information, personalised service and immediate responses. Over time it has become intrinsically linked with the success of a brand ethos around quality, excellence and capability. With this consumer model in mind, how can chambers re-imagine the way they deliver services to clients to become renowned for excellent service.

Imagine being able to keep in touch with your client base involving them in events and real time progress of their cases. Providing this information online or via an app gives the client input and visibility too. This visibility empowers them with knowledge of what’s going on so to service customers effectively.

Questions to consider: • • • •

Can you keep your clients informed about their cases quickly and easily?

Can you evolve to meet your clients’ changing needs?

Is your chambers in a position to offer critical “added value”?

When was the last time you acted upon client feedback?

Do you have methods to track technology innovations and analyse the resulting opportunity for the legal sector?

the barrister Hilary Term 2017

19

Advertisement Feature

The Practicality of “Hostile” Lease Terminations Ground G - Own Occupation

By John Williams, FRICS ACIArb MEWI With Tenants increasingly disputing “hostile” notices under Section 30(1) Landlord & Tenant Act 1954 (LTA 1954), landlords cannot assume that the courts will accept their stated intention at face value. In the second of 2 articles, John Williams considers the practicalities of evidencing a landlord’s intention and ability to occupy for their own purposes and the pitfalls into which landlords, in his experience, frequently stumble.

Objecting to a LTA 1954 renewal on ground (g) (own occupation) is often seen as the ‘easy’ option by landlords.

After all, what other evidence is needed of their intention to occupy premises than for them to say that they do?

Well, as always with these things, it is never quite that simple. They will need to satisfy three clear tests if they are to succeed; that they qualify to object on this ground, that they have a genuine intention to occupy themselves and that they can demonstrate an objectively assessed ability to bring about an occupation for that purpose.

Do They Qualify?

Most landlords know that in order to rely upon ground (g) they must have owned the premises for a period of 5-years but are frequently unaware that the 5-year period runs back from the termination of the tenancy not the court hearing date or the date on which any order would take effect. This opens the tactical option for a tenant of serving a S26 notice to request a new lease commencing before the 5-year period has accrued and I have, on a few occasions, advised tenants to do just this to frustrate a landlord’s expected ground (g) objection. If your client’s landlord is local to the premises and has bought the property close to 5-years prior to the lease end date, then it is advisable to consider this option.

If such timings are close, landlords would also be wise to make sure that the date of their purchase is correctly recalled or checked against Land Registry records. No one wants to be the solicitor who serves a S25 for what they believe, from their client’s database records, is a suitable qualifying termination date only to find the tenant’s solicitor replying with a copy of the Land Registry documents

showing the landlord’s database was wrong, that the purchase completed later and that the termination date fails to qualify. A ridiculous mistake, but one I have seen made.

Do They Intend to Occupy?

Who intends to occupy? Many landlords seem to think that anyone, or any company, with whom they are associated will qualify, but this is not the case. It needs to be the landlord themselves, or a company/partnership in which they, in simplistic terms, have a controlling operational interest. I have lost count of the number of times a landlord has sought to regain possession so that their spouse or child, or a company they are financing but do not have any actual interest in, can operate a business from the premises, only to fail because this does not qualify as occupation by the landlord. An operational Directorship will be relatively simple to evidence but less formal arrangements or partnership agreements would be best evidenced with some form of written agreement and clearly provide the Landlord party with the necessary authorities to qualify for ‘occupation’.

Where the landlord is proposing to occupy for business purposes, as in the cases I have dealt with, he will need to evidence that intention for the courts. Do they have experience in this business field and have they prepared a business plan? Does this show a viable business proposition? Have they considered the fitting out of the premises? Have they established how the business is to be financed?

Whilst the absence of these elements individually would rarely be fatal to the landlord’s claim, the more of these they are able to produce, the more likely they are to satisfy the court that their intention to occupy is genuine. In practice the fewer they have available the less likely it is that the court will take their claimed intention seriously and I have dealt with cases where, on the evidence, the court has decided that the landlord’s intention was more about finding a tenant less likely to be robust in their dealings with the landlord than it was about occupying the premises themselves.

Do They Have the Ability to Realise Their Plans?

This is a far more objective test than

20 the barrister Hilary Term 2017

is applied to the intention element and the court will need to be satisfied that the Landlord can realistically bring about what he is proposing. There are a number of elements of this that I have often seen landlords fall well short of and, as a result, fail in their claim.

Where alterations are needed to a property, in order to accommodate a business, do those alterations (physical or use class) require planning? Has the landlord applied to the planning authority for permission or for a Certificate of Lawful Development and have they, or are they likely to, receive this?

Does the landlord have the finance available, not just to set up and operate the business, but also to undertake the alterations or the fitting out of the property? In this regard I have acted for a number of A3 Restaurant and A5 Takeaway tenants who have received ground (g) objections from a landlord seeking to occupy for the same use.

It is surprisingly common for the landlords in such cases to assume that the fitting out of the premises, particularly expensive in such cases, will remain without checking to establish whether these are landlord or tenants fixtures and fittings. I have been involved in a number of cases where we have established that the tenant is entitled to remove all of the fittings etc, leaving the landlord with a shell unit that they have not budgeted to fit out and for which they cannot show the available finance to spend on fit out. As a result their claims have failed because they have been unable to show that they are able to realise their proposals.

Whilst often viewed by landlords as an ‘easy’ option to regain possession this does not mean that simply saying they wish to occupy themselves will be enough for the a landlord to successfully resist a tenant’s claim for a new lease. Care and preparation will still be needed if an informed tenant, or a court, is to be persuaded that intention as genuine and is deliverable.

John Williams, FRICS ACIArb MEWI john.williams@mapleleaf-pc.co.uk Maple Leaf Property Consultants Ltd Tel: 01242 861155 Fax: 0207 692 4887 Mob: 07506 727727 www.mapleleaf-pc.co.uk

the barrister Hilary Term 2017

21

Are barrister’s high levels of stress placing their health at risk?

By Dr Lynsey Kelly, clinical psychologist

3

RESPONSIBILITY

“I used to go home thinking that I, I was somehow to blame for my client being convicted, despite the fact that the evidence was overwhelming.”

Many barristers talked about wishing to help others, empathy, and having a social conscience as a motivation for doing their job. Faced with clients who have multiple disadvantages, barristers ended up feeling responsible for their clients, and distressed when trial outcomes were not favourable.

4

Role conflict

1

Introduction

Concerns about stress levels within the profession were raised after the Bar’s 2015 wellbeing survey, which found that 1 in 3 respondents found it difficult to stop and control worrying, and that 59% were very self-critical most of the time. Criminal barristers, relative to other areas of practice, were particularly likely to report high pressure, low mood, and a poor work life balance.

A recent study has revealed that barristers may be at risk of “burnout,” a damaging state of psychological stress.

Interviews with barristers, working at the Magistrate’s court, suggested that various factors may contribute to their stress and distress. Some of the themes of their interviews included:

2

Pressures of the Magistrate’s Court

“(A barrister asks the court for extra time and) the court immediately demands to know why this hasn’t been done, and there’s no answer to that, other than we’re poorly funded, overworked, and we just got the papers at very late notice.”

Barristers talked about the enormous pressure of working in the Mags, including the increasing financial pressures caused by cuts to legal aid, the lack of time to prepare, and huge workload; none of which is received sympathetically by the court. Junior barristers, learning on the job, felt particularly pressured.

22 the barrister Hilary Term 2017

“It’s not really designed for a modern understanding of why people commit criminal offences, it’s still coming from the angle of people commit offences because they are bad people, it’s not aiming to really fix people for the future, so it is unreasonably focused on punishment over reform.”

Barristers felt conflicted about working within the criminal justice system, recognising that they wished to help both their clients and society at large, and feeling the tensions of working for a system that comprehensively failed to do so. Pulled in multiple directions, they described feeling like a “social worker,” juggling their client’s social and mental health needs without any training in this.

5

Distress

“I think some (barristers) really, not quite crack, but get quite close to that times, they feel that cases are upsetting, they feel inadequate, … It felt like I can’t cope with everything (my client) needs of me right now.”

Barristers described significant distress in the face of these multiple pressures, and their work with distressed and traumatised individuals, and some were very affected by the emotional impact of their work. Junior barristers had the worst time, sometimes feeling completely overwhelmed and not knowing where to turn. Research in the USA and Australia suggests that lawyers may suffer secondary trauma from the emotional impact of their cases.

6

Lack of emotional support

“In terms of professional standing, if you’re someone that has had a nervous breakdown, been an alcoholic, any of those kinds of things, all of a sudden it will be, well that person can’t cope, it’s not good enough.”

Junior barristers felt underprepared to work with the complex needs of their clients, yet faced the additional

pressure of projecting an illusion of confidence to those around them. Confidence was felt to be necessary for the client relationship, winning the case, and for appearing competent in front of their peers; but prevented them from seeking emotional support. Admitting vulnerability was felt to not be part of the job, and seeking help to possibly be associated with stigma that might damage one’s career. This echoes the Bar’s wellbeing survey, which revealed that two thirds of respondents felt that showing stress at work was a sign of weakness.

7Burnout “(A lack of support) is going to lead in many cases to damage, and that damage may well be that you just stop caring.”

Burnout is a state of psychological stress, where emotional demands have become so high that the person is emotionally exhausted, and no longer able to fully cope. It is associated with many of the factors described here, such as an inability to meet extreme workload demands, feelings of personal responsibility, and role conflict. Many barristers described experiences akin to burnout, such as exhaustion and struggling to let things go. This may have been mediated by a belief that barristers should not seek support, nor share their emotional lives with peers.

Alongside harm to barristers themselves, it is also important for their clients that burnout is addressed. In an attempt to reduce the emotional burden upon them, individuals who are burnt out may begin treating others as objects rather than people, and also feel less motivated and personally accountable. In the context of immense cuts to legal aid, burnt-out barristers may resort to working unethically; motivated by finances, rather than the best interests of their clients.

8Time for a change Barristers work under immense pressures, and can feel unduly responsible, unsupported and distressed; particularly at the beginning of their careers. These factors could lead to burnout. Rachel Spearing, barrister and Co-Founder of the Wellbeing at the Bar initiative, said: “Until a couple of years ago, wellbeing and mental health were not talked about by the profession. It was seen as a sign of weakness, though we all knew it was an issue.” The good news is that this research comes at a time of change for the profession.

Following the wellbeing survey, the Bar Council vowed to act and provide more support to barristers and chambers.

A new wellbeing portal, www.wellbeingatthebar.co.uk , has been set up to provide support and best practice to barristers, clerks and chambers on wellbeing and mental health issues. It encourages barristers to recognise and address the negative effects of a high-pressure environment, and can be used as a first port of call to get help.

Information is now available to barristers so that they can seek advice at an early stage, and efforts across the Bar have raised stress and wellbeing as an issue of high importance.

Whilst the risk of burnout will remain in any high-stress environment, it is welcome to see that such risks may now be mitigated by the timely, appropriate support in place for barristers.

For further information, see www.wellbeingatthebar.co.uk The full research paper quoted in this article can be found here: bit.ly/LKthesis

Lynsey Kelly is a clinical psychologist who completed her doctoral thesis on barristers Email: lynsey.kelly@gmail.com

the barrister Hilary Term 2017

23

Duties of Counsel in Criminal Appeals

By Andrew Walker QC, Chairman, Bar Council Ethics Committee and Bar Council Vice-Chairman 2017

If you were not involved in a convicted defendant’s trial, but are then instructed to act for that defendant on appeal: • • • • •

Make inquiries of the trial lawyers in order to ensure that the factual basis for each ground of appeal is correct.

Seek other objective independent evidence to substantiate those facts.

Do this whether or not the grounds of appeal make express or implied criticisms of the trial lawyers.

Identify whether a waiver of privilege is needed to pursue the appeal and, if so, advise your client about this and (if s/he agrees) obtain a waiver.

Consider how the results of all that affect what grounds of appeal can properly be put forward.

Under s.20 of the Criminal Appeals Act 1968:

“If it appears to the registrar that a notice of appeal or application for leave to appeal does not show any substantial ground of appeal, he may refer [it] to the Court for summary determination; and … the Court may, if they consider that [it] is frivolous or vexatious, and can be determined without adjourning it for a full hearing, dismiss [it] summarily, without calling on anyone to attend the hearing or to appear for the Crown thereon.”

Until recently, this power had been little used, but that is no longer the case; and its recent use has caused the Court of Appeal, Criminal Division to identify a number of duties that a new legal team owes to the court, and to warn lawyers that they will be enforced.

In R v Achogbuo [2014] EWCA Crim 567, a Court of Appeal presided over by the Lord Chief Justice exercised this power on an application for an extension of the time for appealing.

The defendant was convicted on two accounts of sexual assault of a child under 13. He tried to appeal out of time on the ground that an application had been made and granted to admit hearsay evidence of a named witness.

On receipt of his application, the court made enquiries. It became clear that no hearsay application had been made at all in respect of the named witness, so the ground of appeal was misconceived. The application was not pursued.

The defendant then made a second application. This time, he sought to appeal on the ground that he had not been advised about the pros and cons of waiving privilege and allowing the jury to know why he had given a ‘no comment’ interview and that, in particular, he had denied the offence when giving instructions to his solicitors at the police station. As this involved criticism of his former legal representatives, the court set in train its ‘waiver of privilege’ procedure. The court’s enquiries led to the clear conclusion, “that this case is one that has absolutely no prospect of success”. The second application was dismissed summarily under s.20 on this basis, and also on the basis that the court had not even been told about the first application: “a serious non-disclosure”. Both grounds were said to make the application frivolous and vexatious.

24 the barrister Hilary Term 2017

Having reached this conclusion, the court took the opportunity to set out the duties of advocates and solicitors in cases involving the criticism of previous legal representatives. The Lord Chief Justice identified his concern in this way:

“Of late it has become the habit for a number of cases to be brought on appeal to this court on the basis of incompetent representation by trial solicitors or trial counsel. … many such cases proceed without any enquiry being made of solicitors and counsel who acted at trial. This means that the lawyer who brings such an application acts on what [are], ex hypothesi, the allegations of a convicted criminal … For a lawyer to put forward such allegations based purely on such a statement, without enquiry, is in our view impermissible. Before applications are made to this court alleging incompetent representation which is based upon an account given b a convicted criminal, we expect lawyers to take proper steps to ascertain by independent means, including contacting the previous lawyers, as to whether there is any objective and independent basis for the grounds of appeal.”

But the Court also explained that contacting previous representatives may not be enough:

“The court expects not only the highest standards of disclosure but also strict compliance with the duties of advocates and solicitors. It is the fundamental duty of advocates and solicitors to make applications to this court after the exercise of due diligence. In cases where the incompetence of trial advocates or solicitors is raised, the exercise of due diligence requires, having made enquiries of trial lawyers said to have acted improperly, taking other steps to obtain objective and independent evidence before submitting grounds of appeal to this court based on incompetence.”

As a final salvo, the Court directed the Registrar to refer the matter to the Solicitors’ Regulation Authority (‘SRA’).

Having threatened to “consider exercising [its s.20] power more frequently if cases of the type referred to us today occur again”, the court followed through on this threat less than a month later, in R v McCook: this time in a case which did not involve criticism of trial advocates or solicitors.

In McCook, there had been an original trial, an appeal, and a retrial. After the second trial, counsel had advised that there were no grounds for an appeal, and the solicitors had agreed. New solicitors were then instructed. The new solicitors had various documents, including the advice given after the retrial. New counsel settled grounds of appeal.

These addressed the first trial, not the retrial. The Court of Appeal spotted this. Counsel then withdrew on the basis that he had not been given the relevant information, and the grounds could not be sustained. A strong Court of Appeal, comprising the Lord Chief Justice, President of the QBD and Vice-President of the Criminal Division, dismissed the application summarily. Without commenting in any way on the conduct of the new solicitors, it referred them to the SRA, indicating that if there were issues involving counsel, then the SRA would “no doubt consider whether they should refer the matter to the Bar Standards Board”.

Given the different circumstances in McCook, the Court took the opportunity to expand on what it said in Achogbuo:

“This case illustrates … two matters. First, it is always desirable to consult those who have acted before in a case where fresh counsel and solicitors have been instructed. In R v Achogbuo … we stated that it was necessary to do so [1] where criticisms of previous advocates or solicitors were made, or [2] grounds were to be put forward where there was no basis for doing so other than what the applicant said. Second, it is clear from this case that [3] we must go further to prevent elementary errors of this kind. In any case where fresh solicitors or fresh counsel are instructed, it will henceforth be necessary for those solicitors or counsel to go to the solicitors and/or counsel who have previously acted to ensure that the facts are correct, unless there are in exceptional circumstances good and compelling reasons not to do so. It is not necessary for us to enumerate such exceptional circumstances, but we imagine that they will be very rare.” (all emphasis and numbering supplied)

privilege is required but none has been submitted.

I would encourage barristers to take heed of this guidance.

I hope that none get caught out. And please do give us any feedback that you may have on its usefulness. One of the most important roles of the Ethics Committee is to produce this type of document, designed to support barristers in meeting their ethical responsibilities. Our work goes to the heart of why the Bar Council exists – both to support the Bar, and to help the Bar to perform its crucial role in the administration of justice. We hope the Bar will agree that this recent guidance has been a worthwhile exercise on its behalf.

© Andrew Walker QC

The Bar Council is alert to the risk that budgetary constraints might lead courts to be tempted to place obligations on counsel to carry out additional tasks; tasks for which (unfairly) they may not be paid. Here, though, I do not think that is the case. Although the recent decisions recognise that duties were being identified clearly for the first time, this is likely to reflect what very many barristers will already have been doing. The reference to “elementary errors” indicates the Court’s main target, and in most cases, the duty will not be onerous. It should not have taken much in Achogbuo and McCook, for example, to find out what had really happened.

In response to these developments, the Bar Council’s Ethics Committee has reviewed the scope of the duties to the court of barristers newly instructed to represent convicted defendants on appeal. This has thrown up some tricky legal and practical issues, both for barristers acting on an appeal and for those who acted at trial who are asked to respond to enquiries, including how to deal with client confidentiality, legal professional privilege, settling Grounds of Appeal, and waivers of privilege.

The result has been the publication of new guidance: “Criminal Appeals – duties to the Court to make enquiries” (available on the Bar Council website). This is not formal, BSB ‘Guidance’, but we hope that it will help barristers to comply with their duties to both the court and their client (or former client).

We have included a checklist, and have also taken into account new procedures put in place by the Registrar of Criminal Appeals for dealing with breaches of these duties, and with cases in which the Court considers a waiver of

the barrister Hilary Term 2017

25

Insight and controversy: Expert witnesses kick off autumn conferring at the cutting edge Elizabeth Robson Taylor and Phillip Taylor of Richmond Green Chambers review one of the highlights of the recent conference season …The 20th annual Expert Witness conference at Church House, Westminster

F galore.

or lawyers in England and Wales, autumn was the contemplative ‘season of mists and mellow fruitfulness’ that also heralded the advent of what has become known as “The Conference Season”, during which time there are always conferences

For at least the last couple of decades, these annual events have become almost an essential part of a well-rounded, grounded -- and well-informed professional life. So political animals generally gravitate to the various party conferences – Labour, Tory, LibDem, Green -- take your pick. And for members of the Bar, there’s the must-go-to Bar and Young Bar Conference in London.

If you’re a keen conference goer, you’re the sort who inevitably appreciates the opportunities to tap into what’s happening now in your field… what’s happening next… what should be happening, but isn’t – and why and what you can do, or should do, or shouldn’t do about it. And generally you have opportunities to meet many of the main players in your areas of interest and participate (or not) in the usually sharp controversies of question and answer sessions.

However, there is one conference that often doesn’t turn up all that prominently in the purview of the typical reader of “The Barrister” and that is the annual Expert Witness Institute (EWI) Conference. Held in the central but sequestered and leafy, rather collegiate-ish location of Church House in London – a stone’s throw from Parliament – this conference is where lawyers can garner important insights into the role and challenges facing the expert witness in court and where expert witnesses can meet and greet each other as well as the lawyers who instruct them.

This article is written in the hope and expectation that the profile of the EWI will be significantly raised. So, if you’re a lawyer frequently (or even infrequently) engaged in trials requiring expert evidence, you need to know more about the EWI -- and attendance at this conference does provide the ideal opportunity to do so, and it’s also a fun event.

A deep pool of talent The recent EWI Conference of 2016 marked the 20th anniversary of the EWI Conference, and very well attended it was. It was in effect a demonstration of its standing, its burgeoning influence and the pool of talent that sustains it. The roster of distinguished speakers consisted mainly of lawyers, (some transatlantic) legal advisers and members of the judiciary, including for example, Supreme Court Justice, Lord Kerr.

Amiably chaired by EWI Governor Amanda Stevens, the Conference proceeded apace, with speaker after speaker imparting much useful, insightful and sometimes controversial comment on the future of the justice system in general and the varied role of the expert witness in particular.

26 the barrister Hilary Term 2017

Lord Kerr Lord Kerr and Dr John Sorabji, who can reasonably be referred to as the keynote speakers, made some memorable points. ‘It is a given’ remarked Kerr, ‘that the role of experts in our legal system is indispensable’, later adding that ‘the relationship between the decision maker and the expert witness can be a delicate and difficult one’!

He went on to say that ‘there are many spheres of legal activity where expert evidence has been pivotal to the outcome of contested and even compromised, litigation. In over twenty years as a judge, I have heard countless cases in which the result has been heavily influenced by the evidence given by impartial, distinguished experts, either in written reports or in oral testimony.’

He elaborated further on the complementary nature of the respective roles played by the expert and the tribunal of fact and (where possible) those roles must be clearly defined.

Interestingly, he quoted Lord Phillips in a 1997 case in which he observed that ‘when the scientist gives evidence, it is important that he should not overstep the line which separates his province from that of the Jury.’

Finally, Kerr reminded judges and jurors as well as experts, of the need to combine humility and assertiveness.

‘Humility’ he said ‘will lead them to defer to each other when appropriate, while assertiveness should ensure they do so only when appropriate.’

Dr. John Sorabji – ‘EWI in an Era of Reform.’

Another significant speech was delivered by John Sorabji, a regular friend to the Institute. As Senior Fellow UCL, Judicial Institute -- and Principal Legal Adviser to the Lord Chief Justice and the Master of the Rolls, Sorabji covered a number of important points.

‘There are plenty of challenges and opportunities for all experts ahead of us because we’re still in an era of reform,’ he said, referring to the paper from Lord Thomas LCJ and others, entitled ‘Transforming the Justice System.’ A document much discussed at all the recent legal conferences, it follows on from the ‘Reshaping Justice’ paper of two years ago on which Sorabji had acted as an adviser and commentator.

Sorabji also dealt with two further issues of contemporary note: the fixed costs regime and ‘hot tubbing’ – the latter being the hot topic du jour of last year’s EWI conference (and before). It may have cooled down a bit since then, but it does refer to the use of concurrent evidence, which appeared in England and Wales around 2005, having originated as an import from Australia the same year. ‘It does not save costs’ warned Sorabji, even though, in the experience of most of the delegates, it does make the proceedings of the court easier to follow.

All the speakers who followed touched on a number of

the core issues involved in identifying -- and elaborating on -- a number of pitfalls inherent in the role of expert witnesses and their relationship with the lawyers who instruct them. For example, Professor Stephen Mayson, of the Centre for Ethics and Law at the Faculty of Laws, University College London, spoke on the ever-changing face of the legal profession -- in which practitioners must contend with national and global as well as local, competition… plus the new regulatory framework created by the Legal Services Act… and the relentless rise of the consumer – and more.

Having advised barristers’ chambers, law firms and government departments worldwide, Mayson has also appeared as an expert witness himself on law firm management in proceedings before the Solicitors Disciplinary Tribunal.

All this and the impact of alternative business structures has created tensions, but it’s not all bad out there. The market for legal services is huge and continually expanding with a total value of £30bn annually, which apparently is no more than a mere estimate.

‘Two years older than Google’ some words from EWI’s fourth Chair What followed on from this cautionary yet optimistic message were some words from Sir Anthony Hooper QC, who is the EWI’s fourth Chair. In celebration of the EWI’s twentieth anniversary, he encouraged members to raise the profile of EWI for members present and future.

‘What a Year!’ he declared, ‘twenty years old -- we’re two years older than Google! And we are doing what we should be doing as an Institute.’

Sir Anthony also mentioned the increase in online teaching carried out by the EWI in such jurisdictions as Singapore and remarked about the fact that EWI membership has now ‘topped the thousand mark’, although the EWI still actively seeks new members particularly in forensic science as it grows.

As a final point, Sir Anthony referred to the decision in Kennedy v. Cordia heard earlier in the year, on 10th February 2016, a leading case heard recently in the Supreme Court. Regarded as pivotal, the case highlighted and examined the role of the expert, thus creating a singularly important statement on the role and duties of expert witnesses. As Sir Anthony reminded delegates, the primary duty of the expert is to the court, but there is also the duty to the client. Furthermore, the issue of impartiality should always be uppermost.

Eat the Frog First: a Plea from Across the Pond Make what you will of the whimsical title, but this speech was deadly serious and presented with verve and vigour by the transatlantic duo of Alan Anderson and his forensic accountant associate Carol Ludington. Having acquired degrees from Cornell University also a PhD from King’s College, London, Minnesota-based trial lawyer, Alan Anderson has been – among his lengthy list of credentials – included in The Best Lawyers in America in intellectual property litigation since 2010 and there are a number of other strings to his formidable bow.

Basically their presentation centered on the warning that ‘questions that fall within the purview of experts often are left until the end of preparations, or deferred entirely’ – and that ‘a reluctance to engage expert witnesses early in the dispute resolution process… often results in poor decisions or a less than desirable outcome.’ In other words, brief your expert witness sooner than later, or you might be in for a spot of bother. You have been warned.

Lawyerly debate Sadly, space limitations rather rule out further detailed descriptions here of many of the other conference speeches given, some of which dealt with highly specialised topics. Suffice to say, however, that the EWI Conference as a whole was distinguished in particular, by useful, organized, highly professional and high quality debate, lawyerly in tone and content because it was led largely by lawyers -- and punctuated with question and answer sessions that were illuminating and challenging.

So later this year -- only a few months hence -- when autumn leaves have drifted past your window – and the start of the legal term has loomed -- plan to take in a further conference or two. The networking opportunities remain first class and the food isn’t bad either, especially at the EWI Conference, which you really must make a note of in your Chambers diary for 2017.

In the august yet convivial precincts of Church House, there will be much that you can learn to your advantage, so do come next year!

the barrister Hilary Term 2017

27

How can we deliver successful change in Chambers

By Alex von der Heyde BSc (Hons), MBA, MIoD, Managing Director, Esterase Limited

As we all know re-structuring or implementing any strategy in Chambers can be incredibly difficult.

Many a new CEO has foundered as they discover the difficulties of getting agreement from the members and then resistance from the incumbent team. So what are the considerations and what needs to be in place to be able to successfully implement the desired change?

A

t a time of ongoing changes across the legal services sector barristers are facing new challenges as much as other professionals. Cuts in legal aid, the introduction of solicitor advocates and direct access are amongst many factors forcing barristers and chambers to review the way that they work.

In addition, there are opportunities to change the fundamental structure of a set. We have seen new virtual chambers, BSB regulated entities and alternative business structures (ABS’s). Looking to the future members of chambers have a wide range of opportunities and threats to address.

Failure to do so, or for there not appear to be a plan to do so, can lead to nervousness or frustration among members and staff. Sets have lost valued people, even whole teams, to other chambers where those individuals have felt that their personal practices will be more secure and they will have better opportunities to develop elsewhere.

Why do Chambers fail to deliver change?

We have seen sets struggle to establish their place in the new competitive environment. It is not plausible to believe that members, clerks or administrative teams are unaware of the problems.

successfully implement your strategies.

•

Understand the wider context

•

Managing change is a complex process, requiring both analysis and action.

Without a clear understanding of the context in which change is being implemented it is unlikely that the right balance of measures will be identified to ensure that strategies are successfully delivered.

The challenge for the leaders is to understand what will most effectively deliver the required outcome. Coercion or direction may successfully deliver rapid changes. Sometimes this can be critical for the survival of the set.

However, will the initial transformation “stick” for the long term, or will staff drift back to old behaviours? Will there be collateral damage to the way that the set performs or is perceived by its clients?

Are members and staff convinced of the need for change?

• How willing and motivated are they?

• How much understanding is there of the scope required?

Research studying wider law firm failures in the USA, by Management Consultants Hildebrandt International , found that while financial performance and external factors were obvious reasons, internal factors, including weak leadership were often the underlying cause. The inability to formulate and deliver coherent, timely and practical responses to the issues were the ultimate cause of failures. The crisis may have hit today, but the underlying symptoms may not have been addressed for many years.

Often managers will refer to a need for a crisis (real or artificial) to start the change process. This burning platform approach can be effective to focus attention, but it also runs the risk of sending plans in the wrong direction.

The report explains that most failed organisations lacked a realistic strategic focus. Either they had no strategy or, at best, a “paper strategy” that had never been truly accepted…

A shortage of time is likely to tip the balance towards the use of harsher coercive drivers as chambers looks for the “quick fix”. However, this can be risky for delivering long-term improvements in performance.

“The seeds of most law firm failures are sown long before the actual dissolutions.”

This emphasises that it is crucial for chambers to consider their strategic direction. But, even once plans are agreed many sets still fail to successfully implement them. The following are areas to consider when assessing how best to

•

Does the capability or competence exist within chambers to successfully deliver the strategies?

• How much change has the organisation and its staff experienced already?

• Is there sufficient expertise at an individual level?

•

Are the resources available to deliver the process?

• Staff already have their day job, how will they find the time to successfully deliver desired changes?

•

What are the differing demands of those involved with the set (the stakeholders)?

• Are the views across the set diverse or relatively homogenous?

• Are there many subcultures within chambers (between members, clerks and other staff)?

• Do any differences need addressing to be able to succeed?

An analysis of the following can help to gauge the challenges to be addressed, allowing leaders to assess the full range of aspects to be addressed.

•

•

How much time do you have in which to achieve the desired change?

• Is the set in crisis or is it concerned with long-term challenges?

•

What is the breadth of change required?

• If wide-ranging and fundamental, is chambers able to move all the way in a single step?

•

Is the authority in place to deliver the desired change? (A particularly relevant issue in in chambers).

28 the barrister Hilary Term 2017

Where is power vested within chambers?

How much latitude or discretion do the leaders possess?

You need to address the concerns of stakeholders both inside and outside of chambers. This might include key referrers of work, or regulators.

•

What is essential to maintain continuity or preserve specific assets?

• Have you identified the critical success factors that contribute towards the identity and success of the set?

It is important to remember that key strategic assets may not be readily identifiable. When driving through change there is always a risk that these unique capabilities can be lost and competitive advantage reduced. It can be beneficial to map where your existing successes come from. Very often the answers can surprise you.

Each of the above points has implications for the way that the leadership can implement change.

Considering the answers to these questions allows the change process to be tailored to the specific challenges you face.

Having addressed the above what are some of the approaches that will help you to achieve practical delivery?

The Change Agent It is important to have clarity with regards to who is empowered and responsible for delivery. This person, or small team of people, will act as the change agents for the set.

who, incorrectly decide to jump ship.

Communication is critical to the successful engagement of everyone in chambers.

One of the best opportunities to learn about its critical role comes from the retail sector, that of Archie Norman and Allan Leighton of Asda in the early 1990’s. The key point is that they successfully turned around a massive and struggling organisation, close to collapse, in large part by focusing on communication.

There may be obvious candidates for this role. However, as these individuals will already have full-time responsibilities will they have time to ensure success? For example, a senior member of Chambers may have the authority but they cannot afford to lose work for themselves or risk damaging their own practices.

Some may remember the phrase “Ask Archie” on a badge worn by Norman as he toured stores and was interviewed by the media. The process went a lot deeper than this. Not only were the leadership seen regularly on the shop floor, making themselves accessible to staff, managers and customers, they also enforced the culture of communication across the business.

Many sets have employed a CEO or Chambers Director and charged them with driving through the change process. However, if new to the role these professional managers are often surprised at the limitations of their power to implement the desired strategies and feel undermined in their efforts.

Store managers were measured on their communications as much as on financial performance. The ability to focus staff, learn from them and to align attitudes was fundamental.

This was widely recognised as a key factor in the turnaround of the business. A salient lesson for all those preparing to make changes to their organisations.

If this latter route is taken it is critical to ensure that the significant investment of employing these people is backed up by support from the members and management committees.

Whoever you chose to fill this role, the change agent(s) will need to be able to deliver several roles: • • • • • • • • •

project manager communicator adviser advocate relationship builder facilitator team leader ombudsman negotiator

With all of this to manage members of chambers or senior clerking staff may struggle to deliver the role to the standard needed. For small to medium sized sets it may be necessary to look for external and experienced help.

Where firms struggle, they can turn to consultants for help. Great care should be taken when doing so. There is a risk that consultancies will try to drive change according to their own perceived values. or see their job as completed after the initial implementation phase.

Therefore, look for those whose values align to yours. Not simply the one with the best known name. Consider including agreed targets within the agreement with the consultant. These should not purely be short term but should also reflect longer term benefits that you are aiming for.

Plan, prepare and maintain your communications Of all the aspects of the change management process communication is the most critical and often the most poorly managed.

Without proper communication trust can be rapidly lost. This risks misleading stories circulating and dramatic deteriorations of performance.

It may also lose you critical individuals

Therefore maintain regular communications, not just the initial announcement. This should include: •

explain the strategy and the aims to stakeholders,

•

expand on the steps to be taken to those who are affected,

•

update staff on milestones achieved, and if not achieved explain why and what is being done to address this,

•

use office or “department” meetings to talk to smaller groups. Get their feedback, acknowledge it and respond.

•

utilise appraisals or annual reviews to motivate staff at an individual level.

Tailor your messages to suit your audience. The clients may not particularly care about the installation of a new case management system. Your staff may find it a real focus of attention.

Protect and keep key staff Ensure that steps are taken to retain key staff. For many this will be an unsettling time so those critical for the future of the combined firm need to be encouraged and motivated to stay.

“Quick Hits” - Make the hard decisions early on Where facing re-structuring or other major upheavals, try as far as practically possible to get the bad news out of the way early on. However do not rush this at the expense of the appropriate consultations. Remember someone may throw up a valid point that you’ve overlooked and need to deal with.

It is always likely that there is a degree of shock and worry. There will be a transition during which the team need to be supported. However, if properly managed, once the initial impact has passed members & staff are more likely to feel positive about their own futures and that of the firm.

Measure your progress - Targets and Key Performance Indicators (KPIs) Targets and KPI’s are a part of every well run business. They are valuable in driving successful change. However for them to be effective there are a few simple rules to adhere to: 1. Keep KPIs simple, understandable and measurable.

2. Report results regularly to allow staff to respond.

3. Be careful that your targets do not drive adverse behaviours.

4. Understand the reason for the measure. Test existing KPIs from time to time to ensure that they are still achieving the desired results.

Build the new paradigm As quickly as possible look to build the new values and principles of the set.

This is part of forming the new culture, including: • • • • • • •

power structures organisational structures control systems routines and rituals stories symbols

By getting these established staff become focused more quickly on the benefits of working in the new “stronger” chambers and less pre-occupied with the loss of the old “comfortable” culture that they knew.

In summary Many chambers face the need to make major changes to stay viable in today’s changing legal sector. All too often leaders fail to implement the strategic changes required to address the underlying problems that they face.

When implementing new strategies within the set it is important to consider the context in which you are working.

How ready are people for change and what needs to be preserved? Are the skills and abilities in place to be able to successfully deliver new roles?

By considering these issues, understanding the specific challenges and communicating clearly those responsible for delivery can tailor their plans so that they can have the best chance of success.

Alex von der Heyde BSc (Hons), MBA Managing Director Esterase Limited Email: Alex.vdh@esterease.co.uk Tel.: 08455 199149

the barrister Hilary Term 2017

29

NSPCC calls for more support for child witnesses

By Lisa McCrindle, Policy Manager at NSPCC

A

series of planned court reforms, announced September 2016, will enable vulnerable victims and witnesses – including children - to give their evidence before a trial starts. Crossexaminations would be recorded in advance and then played in court, removing the need to relive trauma, such as abuse, at trial. This is a welcome move to ensure the best evidence is secured from child witnesses, particularly in abuse cases.

‘Special measures’ intended to support young and vulnerable witnesses to give the best possible evidence they can at trial, do already exist. Witnesses under 18 are automatically considered to be vulnerable witnesses and are permitted to give evidence from behind a screen, or by video link and their communication can be supported by a Registered Intermediary. Judges and advocates can be asked to remove their gowns and wigs and the public gallery cleared before the witness gives evidence. But in practice how often does this happen and why is it important that it does?

Children have to be tremendously brave to be a witness against someone who has abused them – something that is daunting even for an adult, yet their evidence can be crucial to a case. So we must make sure they are supported to give evidence. An essential part of this is allowing them to do so where and when they are likely to feel comfortable and confident. Courts are intimidating adult places yet many children still have to go to

court buildings, even when giving video evidence. Remote links are a much better option enabling witnesses to give their evidence without physically entering a court building.

When the NSPCC’s ‘Order in Court’ campaign launched in 2014 over 99% of children had to go to court to give their evidence. In September 2014 the government made a commitment to victims to ensure that every court region provides a remote video link facility. Now, although there is at least one remote site in each of the seven court regions in England and Wales, we are far from full coverage, and many areas are still not served meaning children in those areas will still have to go to court buildings to give video evidence.

A recent Freedom of Information (FOI) request from the NSPCC to police forces across England and Wales revealed that more than half of the forces that responded already have ‘remote video links’ in place.

Whilst 25 forces told us they have these facilities set up and ready to use, only five were actually able to tell us how many children had used them. The rest either didn’t have sites and those that did had not yet seen them utilised by child witnesses or the forces simply didn’t have the data relating to this. Clearly usage will depend on a number of varying factors - including geography, size and resource of individual police forces, staff training and presence of witnesses in the first instance – but this seems like a missed opportunity.

Utilising remote video links where they do exist and capturing how and

30 the barrister Hilary Term 2017

when and by whom they and other special measures are used is vital to enable sufficient resourcing of services to support vulnerable young witnesses. Cases involving children often take longer to be heard and these delays can have a negative impact on young witnesses. Waiting for a trial can delay the healing process for victims. Many will live in limbo until their case is heard, and some for long afterwards if they feel they were not able to participate fully in giving their best evidence because they didn’t understand the questions or were unable to communicate clearly.

Access to a Registered Intermediary can be invaluable in ensuring a young witness understands the complex language used in the court process and indeed ensuring the court can understand a child’s response. The language used by police, legal representatives and court officials must seem alien to a child and not understanding what is being asked of them will add to an already stressful and traumatic experience.

Whilst it is vital that a child’s evidence is tested as part of the criminal justice process it’s just as vital that they understand the questions being put to them. Each individual child should be considered as just that, an individual with different levels of maturity and different abilities to understand what is being asked, and why. Court of Appeal judges in the Stephen Barker appeal in 2010 made it clear that ‘very young children could be competent to give evidence’ and that a child’s age should not in itself rule out any value in that

child giving evidence. But we do need to ensure that we mitigate the challenges children face when giving evidence, by minimising the stress and fear they feel and ensuring they understand what is being asked of them.

Over half of child witnesses experience symptoms of stress such as sleeping and eating problems, depression, panic attacks and self harm. The quality of their evidence can be damaged by unfair and prolonged questioning. Advocates are in a position to contribute to improving the court experience for child witnesses by completing training such as that developed by HHJ Rook QC which aims to teach the skill of ‘dealing appropriately with vulnerability’.

Some courts, judges, advocates and police forces are making a significant effort to ease the burden for child witnesses and there has been progress, but there remains a long way to go. The courts piloting the pre-recording of evidence have led the way in managing the way the young and vulnerable are questioned.

Barristers can be asked to submit their questions in writing to the judge in advance, to avoid pronouns which might confuse, and not to put their case directly to a witness who simply won’t understand it. But the reality is that many children will face a postcode lottery when it comes to getting the right support to give evidence against offenders. We must continue to encourage the criminal justice system and those that operate within it to ensure examples of best practice are shared and promoted

and poor practices challenged.

The NSPCC will continue to put pressure on government to ensure that the criminal justice system becomes more child-friendly. We also want to see less disparity in the support available to child witnesses across the country so all children have the same opportunities when it comes to giving evidence against offenders.

Advocates are in a perfect position to take the lead in pushing for continued reform by seeking out appropriate training and sharing best practice with contemporaries.

In doing so their own practice will also benefit as they improve their own skills of working with vulnerable witnesses and securing the best evidence.

the barrister Hilary Term 2017

31

It’s Science Jim, but not as ... oh no, it’s not science after all It is science that gives the scientist legitimacy as an expert, to ignore science in providing expert opinion surely creates a strange legal environment….

By Dr Scott Bader and Professor Allan Jamieson of the Forensic Institute

S

ometimes, as has been recognised by the Appeal Court in R v Holdsworth1 (one of the ‘shaken baby’ cases in which we were instructed by the defence), “today’s scientific orthodoxy may become tomorrow’s outdated learning”. Perhaps the tide is now beginning to turn in favour of those who, like us, have raised serious doubts about some of the ‘science’ being advanced in courts to obtain prosecutions. The satisfaction with this turn of events is dampened by the tragedy that most of this ‘new’ knowledge is not new to science at all, it has simply been an inconvenience to what has been termed the ‘unfettered’ opinion of forensic practitioners. As pointed out in 2009 by a critical appraisal of forensic practices,

“The bottom line is simple: In a number of forensic science disciplines, forensic science professionals have yet to establish either the validity of their approach or the accuracy of their conclusions, and the courts have been utterly

32 the barrister Hilary Term 2017

ineffective in addressing this problem.”

Now, yet another authoritative scientific report has agreed that many of the techniques used by forensic laboratories have no scientific basis; it’s just that the courts have simply taken the labs’ word so far and thereby enabled such bad practice. Indeed, reporting scientists of at least one English forensic science provider cites an Appeal Court judgement (R v Dlugosz3) to support what now is acknowledged to be a scientifically unfounded practice – subjective judgement regarding potential contributors to DNA mixtures. In R v Reed & Anor4 in 2009 the court endorsed the prosecution’s expert opining on how DNA came to be on items; a claim undermined by subsequent scientific reviews and opinion.

The President’s Council of Advisors on Science and Technology (PCAST) is an advisory group of leading scientists and engineers, appointed by the President of the

United States to provide scientific advice. Crucially, these advisers are primarily drawn from outside the forensic science community (whatever that is). In September 2016, PCAST released a critique of several methods used in ‘forensic science’, including the interpretation of mixed DNA profiles . The findings should cause serious concern to everyone involved in the UK criminal justice system, although we suspect that some will try to wave these away because somehow American science must be different to UK science.

Having worked on and continuing to work on, cases in the UK and the USA, we can say with confidence that this is an international problem and not one confined to the USA. The PCAST report has some obviously worrying, if unsurprising, conclusions;

“expert witnesses have often overstated the probative value of their evidence, going far beyond what the relevant science can justify.”

This is no surprise to any scientifically literate observer of courts, but is apparently not so obvious to many influential participants, scientific and legal.

As the rest of the world appears to be realising that all is not well with forensic practices and the need to have better review of the reliability of the results emanating from labs, we have witnessed courts in the UK move further along a path which appears to endorse unscientific and occasionally anti-scientific opinion, particularly in matters involving ‘experience’ and ‘subjective’ judgement. We have written on these topics here before.

PCAST echo our previous concern;

good professional practices (such as certification programs and accreditation programs, standardized protocols, proficiency testing, and codes of ethics) can substitute for actual evidence of foundational validity and reliability.”

We find it abhorrent that, in the light of so much evidence that these approaches are unscientific, that there are so-called scientific firms and individual scientists who are prepared to cite legal judgements as support for such ‘subjective opinions’ rather than remain within the limits of science. As PCAST noted;

“Judges’ decisions about the admissibility of scientific evidence rest solely on legal standards; they are exclusively the province of the courts and PCAST does not opine on them. But, these decisions require making determinations about scientific validity.

It is the proper province of the scientific community to provide guidance concerning scientific standards for scientific validity ... ”.

It is science that gives the scientist legitimacy as an expert, to ignore science in providing expert opinion surely creates a strange legal environment where the very expertise that enabled the witness to be considered an ‘expert’ is discarded when it comes to providing an opinion.

“Subjective methods require particularly careful scrutiny because their heavy reliance on human judgment means they are especially vulnerable to human error, inconsistency across examiners, and cognitive bias. ...

Similarly, we urge everyone to treat with the utmost scepticism experts’ apparently blind but frequently expressed belief that accreditation guarantees the accuracy and reliability of a result, and even their opinion. Sometimes an expert report will include reference to having been ‘peer-reviewed’ or some other indication that the opinion in the report is shared by others, at least in the same firm as the expert. This common practice is also debunked by PCAST;

We note, finally, that neither experience, nor judgment, nor

“Similarly, an expert’s expression of confidence based on personal

professional experience or expressions of consensus among practitioners about the accuracy of their field is no substitute for error rates estimated from relevant studies. For forensic feature-comparison methods, establishing foundational validity based on empirical evidence is thus a sine qua non. Nothing can substitute for it.” [our emphasis] We have always considered the inclusion of phrases claiming authority for opinions within reports because they have been ‘peer-reviewed by other competent and suitably trained experts’ to be questionable: trained and deemed competent by whom?

Usually the very same company being paid for the report. All of our statements are, in that sense, peerreviewed but we do not consider it appropriate to include that within the statement. The statement is the opinion of the signatory. If it requires a second opinion then it requires a second statement. In our opinion peerreview as presented in such statements is simply hearsay unless the peerreviewer also prepares a statement.

Even then, what value would additional statements have, coming from the same company where all staff have been trained for, possibly tested in, and adopted the firm’s policy?

Turning to the specific example of DNA profiling where we have a long history of challenging the failings of the orthodoxy as regards Low Template samples and the statistical calculations presented when a mixture of DNA is found, the PCAST report stated:

“The fundamental difference between DNA analysis of complex-mixture samples and DNA analysis of singlesource and simple mixtures lies not in the laboratory processing, but in the interpretation of the resulting DNA profile. ... probabilistic genotyping software programs clearly represent a major improvement over purely subjective interpretation. However, they still require careful scrutiny to determine (1) whether the methods are scientifically valid, including defining

the barrister Hilary Term 2017

33

the limitations on their reliability (that is, the circumstances in which they may yield unreliable results) and (2) whether the software correctly implements the methods. This is particularly important because the programs employ different mathematical algorithms and can yield different results for the same mixture profile.

Appropriate evaluation of the proposed methods should consist of studies by multiple groups, not associated with the software developers, that investigate the performance and define the limitations of programs by testing them on a wide range of mixtures with different properties.”

We have challenged several of these ‘probabilistic genotyping’ softwares (e.g. STRMix, LikeLTD,). In our opinion those have not been tested in the manner described by PCAST. All have had varied success in courts around the world and each works in a different way.

As we have pointed out in our challenges, and now agreed by PCAST;

“A number of papers have been published that analyze known mixtures in order to address some of these issues [with interpreting DNA mixtures]. Two points should be noted about these studies.

First, most of the studies evaluating software packages have been undertaken by the software developers themselves. While it is completely appropriate for method developers to evaluate their own methods, establishing scientific validity also requires scientific evaluation by other scientific groups that did not develop the method.

Second, there have been few comparative studies across the methods to evaluate the differences among them—and, to our knowledge, no comparative studies conducted by independent groups” These comport with at least some of the issues that we have taken up in casework. However, faced with a challenge from what appear to be

lone voices in the UK, the courts have generally sided with the apparent ‘orthodoxy’ regardless of the fact that there is no real orthodoxy in this area as PCAST has identified. Indeed, in one of our New York cases the developer of one software system was effectively rubbishing another.

The question remains as to how long it will be before the criminal justice system in the UK realises that this is not an isolated problem – it affects past and present cases big and small. The system of Legal Aid recognises cost rather than the quality of expertise.

This system connected with the fragmented nature of the ‘defence’ market, the inevitable inequality of almost every type of arms between prosecution and defence experts, and the emerging propensity to smear any expert brave enough to challenge the orthodoxy, are perpetuating the admission of flawed and dangerous expert testimony. How and when will the situation change in the light of the increasing evidence that there are serious problems with the claimed orthodoxy?

A recent request for defence funding for a case involving a serious challenge to probabilistic genotyping software was met with this response from the Legal Aid Agency;

“As far as we are aware probabilistic genotyping software is simply using software to produce an analysis of the likelihood of a genetic match between 2 DNA samples, which is often done by most DNA experts…”

So much for any chance for, “appropriate evaluation”. Even in the laboratories that provide such evidence, the software is used only by a tiny handful of staff specifically trained in its use; it is not routine or simple.

As somewhat of a footnote, having acted for the defence in the now widely discussed footwear case of RvT , we are pleased to see vindication from PCAST for part of our stance in that case (i.e. that footwear mark assessment is not science – a point actually agreed by the

34 the barrister Hilary Term 2017

Appeal Court);

“Such claims for “identification” based on footwear analysis are breathtaking—but lack scientific foundation. ...

PCAST finds that there are no appropriate black-box studies to support the foundational validity of footwear analysis to associate shoeprints with particular shoes based on specific identifying marks. Such associations are unsupported by any meaningful evidence or estimates of their accuracy and thus are not scientifically valid.”

Ironically, despite an almost identical argument regarding ‘forensic gait analysis’ in R v Otway the Appeal Court did not accept the argument.

Gait analysis does not meet any of the criteria proposed by PCAST (or indeed any other science).

Considering the recent controversy involving Shaken Baby Syndrome, and criticism of a high profile expert frequently instructed by the defence, we would also wish to highlight here what PCAST have to say about that topic;

“PCAST notes that there are issues related to the scientific validity of other types of forensic evidence that are beyond the scope of this report but require urgent attention—including notably arson science and abusive head trauma commonly referred to as “Shaken Baby Syndrome.”

PCAST has included helpful appendices intended to assist barristers and judges to assess the quality of scientific claims. It is common experience that when methods find their way into courts it becomes increasingly difficult to challenge them – and it seems few people are prepared to do so. We hope that the PCAST report, added to the increasing realisation that forensic science appears to be more forensic than science, will encourage barristers and judges to be more critical of the science that they deal with.

The Jurisdiction of the Military Court Martial

By Jo Morris and Fiona McAddy, Church Court Chambers

T

he reach of military justice is extensive; it stops at neither serviceman nor service offences. The military Court Martial has jurisdiction over service personnel and reservists alike for both service and civilian offences.

It also has jurisdiction over civilians that are subject to service law under the terms of their employment contract and those who fall under military jurisdiction by virtue of their presence on a military base, or their connection with military personnel.

The Forces retain a right to discipline regular serviceman for service offences; that is what one would expect. Every fighting force throughout history has made use of a distinct system of discipline with offences that do not apply to civilians, however, the military Court Martial has jurisdiction over both service and civilian offences. Despite this, the civilian courts do have the primary claim to jurisdiction over civilian offences. Before the Armed Forces Act 2006 it was obligatory for defendants to be tried in the civilian justice system for homicide and serious sexual offences. It was also common for the civilian courts to assume jurisdiction for other serious offences unless they were committed on military property and only involved serviceman.

This prohibition was removed in 2006 and now the Court Martial can try serious criminal offences wherever they are committed.

Despite this, it remains common for service personnel to be tried by the civilian courts in circumstances where it might serve the public interest better for them to be dealt with by the Court Martial; service courts have sentencing options that allow for a period of detention followed by a return to service whereas civilian courts do not.

Some offences are not compatible with continued service but many others are not fatal to a career in the Forces. The practice of trying them in the civilian courts means that soldiers wishing to return to soldiering are lost to the Army.

Regulars are not the only ones affected. Reservists in their various forms are also caught by military justice. Reservists are broken down into two groups. Firstly, the ‘volunteer reserve forces’, namely the Royal Navy Reserve, the Royal Marines Reserve, the Territorial Army and the Royal Auxiliary Reserve and the Royal Air Force Reserve. These are former regular personnel who have a call-

out liability arising from their regular service. Members of the reserve forces become subject to Service law when they are carrying out the following activities: a) during permanent Service on call-out b) during home service defence service on call-out c) when engaged in a full-time Service commitment d) when undertaking any duty or training e) when serving on the permanent staff of a reserve force A reservist undertaking any of these services will be subject to service law during the whole period of that service whether they are travelling, working, resting or off duty. The only exception is d] above where such a person will be subject to Service law while they are with their reserve force only. In addition, members of the reserve force may be tried for certain offences under Part X of the Reserve Forces Act 1996 even when they are not subject to Service law.

Some civilians are also subject to service jurisdiction. The case of Marin v UK [2006] ECHR 40426/98, concerned the seventeen year old son of a corporal serving in Germany.

He was charged with the murder of a German national who had been employed by the British Army. The German authorities waived jurisdiction and Corporal Martin was posted back to the UK and left the Army in 1994. Despite the fact that his father

had returned to the UK and was no longer serving, the Attorney General consented to Martin being tried by Court Martial and was he convicted of murder. He appealed that conviction to the Court-Martial Appeal Court and Lord Bingham commented that

‘It would in our view have been preferable if this young appellant, whose subjection to military law was purely vicarious and involuntary, had been tried here with all the procedural safeguards which procedure in the ordinary courts afford. We cannot, however, stigmatise these proceedings as abuse’.

Jurisdiction is not confined to civilian dependents. Those who work in some capacity in connection with the Services, for example in the NAAFI, are also captured. Any civilian who visits a person stationed overseas who is subject to Service law or discipline is also automatically subject to the jurisdiction. Civilians can be dealt with summarily by a Service Civilian Court.

They do have the right to elect to be tried in the Court Martial if the offence is serious enough.

Despite the observations of the Court in Marin, there is no right for either civilians subject to military justice, or service personnel to elect trial before the civilian courts. There is therefore an inherent disadvantage to those who fall within the military jurisdiction.

Jo Morris Fiona McAddy www.churchcourtchambers.co.uk

the barrister Hilary Term 2017

35

the barrister

36 the barrister Hilary Term 2017

EXPERT WITNESS SERVICES

the barrister

endent Nursing quarter ad.indd 1

21/11/2016 14:17

37

EXPERT WITNESS SERVICES

the barrister Hilary Term 2017

the barrister

38 the barrister Hilary Term 2017

EXPERT WITNESS SERVICES

the barrister

EXPERT WITNESS SERVICES

39

the barrister Hilary Term 2017

40 the barrister Hilary Term 2017