Barmag issu89

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#89

ESSENTIAL READING FOR BARRISTERS

EST. 1999

8TH June - 30TH July 2021 Trinity Term Issue

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ISSN 1468-926X

The Domestic Abuse Act 2021 – transformational legislation or a missed opportunity?

Features

A “once-in-a-generation opportunity” claimed Theresa May, the then Prime Minister when speaking to the BBC back in October 2019 when the original bill was introduced to Parliament,1 a sentiment later echoed by the Lord Chancellor, Lord Buckland, during Parliamentary debate2 and, lauded as a “…landmark piece of legislation which will be transformational in better protecting and supporting victims of domestic abuse and their children, and bringing their perpetrators to justice”

by Baroness Williams of Trafford who, co-sponsored the Bill, in her letter to Peers published on 27th January 20213.

They were, of course, talking about the Domestic Abuse Bill4 which was finally, after many setbacks, much challenge and contestation and, many years of dedicated, passionate, and seemingly tireless work of many, including many who are survivors of domestic abuse, given the Royal Assent on Thursday 29th April 2021 and is now law.

Given the devoted efforts of so many and

the desperate need for transformation in how the justice system protects and supports victims of domestic abuse and their children, it seems churlish to criticise the fruit of their labours but, an examination of what the Bill could have contained inevitably leads to the Celestine Greenwood,barrister, Exchange Chambers conclusion that this legislation, whilst landmark in nature, misses its so-called “once-in-a-lifetime opportunity.”

Flying your Flag

emanates from businesses outside the UK – and involves disputes that do not concern property or events in the UK or disputes where the parties are based in this country.

40% of cross border arbitrations are governed by English law.

With the country’s economy feeling just a little dented after the Covid 19 pandemic and Brexit, it would be nice to hear some good news.

p.10

For the family jurisdiction the Act is

You might not realise it, but it is you.

No doubt the some of the attractiveness of the offering of the UK courts can be put down to the independence of our judiciary, the ease of enforcement of our judgements (unlike countries like the USA), the expert legal services available in London and the proliferation of English law.

In cash terms, our legal services contributed nearly £59.93 billion to the UK economy in 2018. Our legal services exports brought in approximately £5 billion per annum.

English law certainly dominates in sectors like international commercial contracts, banking, and finance, maritime and shipping, mergers and acquisitions, dispute resolution and international arbitration.

We also field legal weight. Five of the world’s ten largest law firms by revenues are headquartered in the UK, and three of the largest five Global 100 law firms, based on headcount, have their main base of operations in the UK.

Connections from the time of the British Empire had meant that English law already enjoyed global reach that extended all the way from Australia and New Zealand to large parts of Africa, Asia, and Canada, as well as a number of other Commonwealth nations. As a result, p.11 the legal systems of many of these

But there is one area we can be crowing about - a UK financial powerhouse that remains world beating.

70% of London Commercial Court’s work

PRICE £2.80

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What does the Serco trial collapse mean for Deferred Prosecution Agreements?

Harry Travers, partner, and Alex Swan, senior associate, of BCL Solicitors LLP

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Lessons Learnt from a Pupillage during Covid-19

By Callum Ross, Barrister, Chavasse Court Chambers

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Building a system to protect students from sexual harm

By Ian Brownhill, Barrister, Essex Chambers

24 In Defence of Remote Working

By Alex Lawson, barrister, 33 Bedford Row

4 5

News Bar Council backs Charter for Black Talent British values of justice must not be undermined in the rush to recover from COVID

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

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the offending barrister acted in the presence of other barristers without fear of repercussions. In fact, the junior barrister he assaulted said that she felt unable to say anything whilst she was being assaulted because she did not want to make a scene in front of senior members of the bar who were present at that event. This is, in a word, appalling. It casts a shadow over the whole profession.

Barristers urged to unite behind new initiative tackling abusive behaviour at the Bar Conduct Authority), Chris Gutteridge (Exchange Chambers), Lydia Pemberton (3 Paper Buildings) and Morayo Fagborun Bennett (Hardwicke) - who met on the Bar Council’s inaugural Leadership Programme - a project aimed at changing the culture

of the Bar though facilitating a network of ‘new leaders’.

Barristers are being urged to unite behind a new initiative aimed at tackling abusive behaviour at the Bar.

All Rise is a project inviting the Bar to step up and actively create a better culture for all barristers. It aims to encourage barristers across all practice areas and levels of call to be ‘active bystanders’ - speaking out and standing against abusive, bullying and belittling behaviour.

The initiative is headed by four barristers - Bo Kay Fung (Financial

The team behind All Rise have designed and produced a pin badge that barristers can wear in chambers or at their place of work and at court as a symbol of allyship. The pin is a sign to others that the wearer will use whatever power they have in a given situation to stand against unacceptable behaviour and act in support of those in need. The pin badges are wooden, and environmentally friendly, and come on a recycled cardboard backer that can be re-used as a bookmark.

Commenting on the initiative, Chris Gutteridge said:

“There have been a number of decisions handed down by Bar Disciplinary Tribunals in recent months concerning sexual assault and harassment by barristers. The details of one of those cases suggested that

“We appreciate this is a small first step on the long road to tackling a very big problem, but nevertheless, we think it will create more ‘active bystanders’ at the Bar and act as a visual deterrent to potential abusers.”

All Rise aims to raise £5,000 to produce 4,000 pins (its initial target of approximately 25% of barristers in England and Wales). So far, the group has secured pledges and contributions of about £2,000.

Individual barristers can buy a pin (and have it sent by DX to their chambers or posted to another address) for £5. The group are also looking for chambers and other organisations to act as ‘sponsors’ (contributions of £100 and up).

Contributions can be made at the group’s Open Collective page: https://opencollective.com/all-rise-thebar_as1 All Rise is also on social media at: https://www.linkedin.com/ groups/13965718/ All Rise (The Bar) (@AllRiseTheBar1) / Twitter

Government must guarantee our health data is secure

Liberty Human Rights has responded to reports that the Covid vaccine booking website contains flaws leaving people’s vaccine statuses vulnerable. The human rights organisation called for robust guarantees from ministers to ensure we can all trust that our data is secure and access the healthcare we need.

Sam Grant, Head of Policy and Campaigns at Liberty, said: “We should all have the right to privacy, and that means having control over our own personal data.

“It’s only been made clearer during the pandemic how important it is that we can all access the healthcare we need, and that everything must be done to ensure we can trust that our health data is safe. This is particularly important if the Government wants to overcome the concerns many people and marginalised communities have as a result of their experiences interacting with the State, and having their health and other data misused, such as through the Hostile Environment.

“These findings should raise

even more concerns about the Government’s plans for data-driven pet projects in a range of areas, from policing to immigration, that will most impact those already marginalised.

“Given the success of the NHS vaccine programme – and its pivotal role in this Government’s plans to exit the pandemic – those in power must provide robust assurances that our information is secure.”

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Bar Council backs Charter for Black Talent

The Bar Council, the barristers profession’s representative body, has become the latest organisation to give its backing to the Charter for Black Talent in Finance and the Professions, an initiative aimed at increasing the number of talented Black professionals in senior positions in the financial and professional services sectors in the UK. In supporting this important initiative, the Bar Council joins organisations such as the City of London Corporation, London First, the Inns of Court, The Institute of Chartered Accountants in England and Wales, ICAS (the Institute of Chartered Accountants of Scotland), Innovate Finance, Magic Circle law firms, Big Four accountancy giants, as well as barristers’ chambers Brick Court Chambers, 4 Pump Court, 3

Plans to ‘restore balance of power’ lacking evidence, say barristers

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Verulam Buildings and Matrix Chambers and the Commercial Bar Association (COMBAR).

The data shows that men and women of Black heritage are the most underrepresented ethnic group in the financial and professional services sectors and at senior levels, and that the position has not improved in years.

The Charter aims to shift the dial through committed, meaningful action rather than aspirational statements, however sincere. In the barristers’ profession, one of its main aims is to drive the recruitment and progression of Black talent at the commercial, Chancery, technical and other civil areas of practice at the privatelyfunded Bar. The Charter is the brainchild of barrister Harry Matovu QC, who has been working in partnership with Michael Eboda, CEO of Powerful Media Ltd, to extend its reach.

Derek Sweeting QC, Chair of the Bar Council, said: “The Charter for Black Talent in Finance and the Professions will play an essential role in addressing the need for the commercial, Chancery and other Bars, which work closely with the business and financial services sectors, to pave the way for Black professionals to progress into more senior positions in their areas of practice. This is vital for the diversity of the profession and it will expand the breadth of experience available to clients operating in evolving and globalised markets. The recognition of talented Black professionals and their promotion to positions of leadership in business and the professions is

Responding to the Queen’s Speech, in May, Chair of the Bar Council, Derek Sweeting QC said:

“The standout item in this Queen’s Speech is the Government’s intention to ‘renew democracy’ and ‘restore the balance of power between the executive, legislature and the courts’.

But the evidence for the claim that this balance has been lost is lacking.

“The panel which looked at the judicial review system did not identify a ‘growing tendency’ for judicial

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long overdue, and the fact that the Charter has the support of other sectors gives this initiative real weight. The Bar Council is proud to support it.”

Harry Matovu QC, said: “I am delighted that the Bar Council, my own representative body, is joining the four Inns of Court and several Chambers in supporting the Charter, and I hope that all chambers and other organisations employing barristers in the commercial world will follow their lead. The support of the Bar Council could not come at a more important time. It seems curious that the Sewell Report should boast about ‘the onward march of minorities into positions of power and responsibility in professions such as the law and medicine’, when that is not a picture of our profession that most of us at the Bar would recognise, particularly given the statistics for Black barristers in the highest-earning areas of practice at the Bar. “Equality of opportunity is fundamental to any true meritocracy, and as we begin to emerge from the events of the last year, the Bar must hold itself to the highest of standards in this area, whatever position others may take. The Charter for Black Talent is not another tick-box exercise. Many senior executives and partners in the financial and professional services sectors have confirmed that it has the ability to drive real and lasting change in the recruitment and progression of talented Black professionals to senior grades. So, I hope the Bar will unanimously support the Charter. If not now, when?”

overreach. The judicial review process is central to access to justice for the public. We are concerned that some of the proposed reforms are far-reaching with insufficient time allowed for consultation or scrutiny

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“The rule of law and access to justice should underpin any reform of the immigration and asylum system. Any changes should be well-evidenced and coherent.”

British values of justice must not be undermined in the rush to recover from COVID The rule of law must underpin every step of the UK’s recovery from the pandemic and guide us through the post-Brexit period, the Law Society of England and Wales warned in its response to the Queen’s speech.

Law Society president I. Stephanie Boyce said: “As the government looks to rebuild after the pandemic it should ensure its plans don’t fly in face of our British values.

“Britons overwhelmingly* want their country to be a beacon of the rule of law with rules applying equally regardless of the individual or the institution.”

Balance of power between the courts, the legislature and the executive On constitutional reform plans, I. Stephanie Boyce said: “Proposals on judicial review – which the government claims are intended to adjust the balance of power between executive, parliament and the courts – risk taking power away from citizens and putting more into the hands of government.

The rule of law and access to justice would be significantly weakened.

“The independent panel convened by

Safety of citizens

government to review the relationship between the courts and the state found no evidence of judicial overreach.

“Judicial review is an essential check on power. It keeps government and public bodies on the straight and narrow and allows individuals to uphold their rights when faced with the might of the state.

“The effect of government proposals would be a fundamental distortion of the protection judicial review is supposed to provide against state action, undermining the rule of law and restricting access to justice.”

Sovereign borders bill

The report, funded by the Nuffield Foundation, found limited guidance and almost no evidence of training for legal practitioners on how best to prepare a witness statement, leading to a variability in quality of such statements. Additionally, for litigants in person (those self-representing in court) there were differing levels

I. Stephanie Boyce said: “The justice system – which is essential to maintaining law and order for the safety of us all – is on its knees.

“A boost in funding is vital if the British people are to have meaningful access to justice. Half the courts in England and Wales have been shut down since 2010 and those that remain are crippled by backlogs stretching to 2023. Swingeing cuts to legal aid have left the most vulnerable without representation when they face life-changing legal issues.

I. Stephanie Boyce said: “Home Office plans for immigration and asylum pose a serious threat to the rule of law as well as undermining access to justice and making a mockery of British fair play.

“At the very least, legal aid should be re-introduced for early advice, particularly for family and housing law cases, and further investment in Nightingale courts is needed to restore timely access to justice for victims, witnesses and those accused of crimes.

“The Law Society shares the government’s aim of preventing people smuggling, but asylum-seekers who reach our shores by so-called irregular routes, such as by boat, should not be penalised. To do so would risk breaching international law by creating a two-tier asylum system.

“Rights are meaningless if people cannot defend or realise them – whether because they can’t get legal aid, because of huge delays in the courts or because avenues for redress such as judicial review have been watered down.”

Research Reveals Legal Practitioners Receive Limited Or No Professional Training On Preparing Witness Statements The Institute for Crime & Justice Policy Research (ICPR) at Birkbeck has published a new report, ‘Witness Statements for the Employment Tribunal in England and Wales: What Are The Issues?’ , that explores best practice for preparing witness statements for Employment Tribunals in England and Wales.

The Police, Crime, Sentencing and Courts Bill looks to make citizens feel safer, but without investment in the justice system more widely it may be doomed to fall short.

of support as well as a shortage of online resources and guidance publicly available.

The researchers recommend an indepth review of witness statement training is undertaken as well as a wider review of legal practitioners’ training needs in relation to witness statements. Furthermore, they advise improving online resources and updating the guidance issued by the President of Employment Tribunals, to reflect the study’s findings and psychological research which informs current best practice on interviewing witnesses.

“Witness statements have a direct bearing on the outcome of cases, litigation costs and the efficiency of hearings. At a time when the Business and Property Courts are introducing new rules and judges are voicing concerns about the quality of witness statements, our study shows how training and guidance needs to be informed by research from the field of psychology.”

Dr Michelle Mattison added: “Producing witness statements which contain complete and accurate evidence, and which comply with legal rules and directions, is a complex task.

In order to enhance access to justice and improve the quality of witness evidence in courts and tribunals there is a pressing need for better guidance and mandatory training.”

The project has been funded by the Nuffield Foundation, but the views expressed are those of the authors and not necessarily the Foundation

Co-author, Dr Penny Cooper, said:

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Bar Council backs Charter for Black Talent The Bar Council, the barristers profession’s representative body, has become the latest organisation to give its backing to the Charter for Black Talent in Finance and the Professions, an initiative aimed at increasing the number of talented Black professionals in senior positions in the financial and professional services sectors in the UK. In supporting this important initiative, the Bar Council joins organisations such as the City of London Corporation, London First, the Inns of Court, The Institute of Chartered Accountants in England and Wales, ICAS (the Institute of Chartered Accountants of Scotland), Innovate Finance, Magic Circle law firms, Big Four accountancy giants, as well as barristers’ chambers Brick Court Chambers, 4 Pump Court, 3 Verulam Buildings and Matrix Chambers and the Commercial Bar Association (COMBAR).

The data shows that men and women of Black heritage are the most underrepresented ethnic group in the financial and professional services sectors and at senior levels, and that the position has not improved in years.

The Charter aims to shift the dial through committed, meaningful action

rather than aspirational statements, however sincere. In the barristers’ profession, one of its main aims is to drive the recruitment and progression of Black talent at the commercial, Chancery, technical and other civil areas of practice at the privatelyfunded Bar. The Charter is the brainchild of barrister Harry Matovu QC, who has been working in partnership with Michael Eboda, CEO of Powerful Media Ltd, to extend its reach.

Derek Sweeting QC, Chair of the Bar Council, said: “The Charter for Black Talent in Finance and the Professions will play an essential role in addressing the need for the commercial, Chancery and other Bars, which work closely with the business and financial services sectors, to pave the way for Black professionals to progress into more senior positions in their areas of practice. This is vital for the diversity of the profession and it will expand the breadth of experience available to clients operating in evolving and globalised markets. The recognition of talented Black professionals and their promotion to positions of leadership in business and the professions is long

First full-time CILEX judge named Elizabeth Johnson has become the first CILEX lawyer to be appointed to the judiciary in a full-time position.

Elizabeth is a CILEX Fellow and currently a part-time Judge of the Firsttier Tribunal, assigned to the Social Entitlement Chamber. As of 14 June, she will become a full-time, salaried District Tribunal Judge.

She is a personal injury specialist with over 20 years’ experience in all aspects of injury, insurance and liability claims.

In 2019, she became the first female CILEX member to be appointed to the judiciary and for the last two years has been sitting as a judge part-time whilst working as an associate at Ashfords in Exeter.

Elizabeth qualified with CILEX (the Chartered Institute of Legal Executives) in 1998. In 2017, she took part in CILEX’s Judicial

Development Programme, aimed at providing members with information, support, training, mentoring and encouragement when preparing to make their application for a judicial appointment.

Elizabeth says, “The last two years sitting as a part-time judge have been hugely rewarding. My work in the Social Entitlement Chamber means I hear cases that have a profound impact on people’s lives, taking decisions relating to disability benefit appeals where individuals are often representing themselves.

“Dealing with individual appellants to ensure that they have the best opportunity to present their appeal, and then applying the law to reach the right decision in each case, is a perfect balance for me and there was no doubt in my mind that I wanted to apply for a full-time position.

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overdue, and the fact that the Charter has the support of other sectors gives this initiative real weight. The Bar Council is proud to support it.”

Harry Matovu QC, said: “I am delighted that the Bar Council, my own representative body, is joining the four Inns of Court and several Chambers in supporting the Charter, and I hope that all chambers and other organisations employing barristers in the commercial world will follow their lead. The support of the Bar Council could not come at a more important time. It seems curious that the Sewell Report should boast about ‘the onward march of minorities into positions of power and responsibility in professions such as the law and medicine’, when that is not a picture of our profession that most of us at the Bar would recognise, particularly given the statistics for Black barristers in the highest-earning areas of practice at the Bar. “Equality of opportunity is fundamental to any true meritocracy, and as we begin to emerge from the events of the last year, the Bar must hold itself to the highest of standards in this area, whatever position others may take. The Charter for Black Talent is not another tick-box exercise. Many senior executives and partners in the financial and professional services sectors have confirmed that it has the ability to drive real and lasting change in the recruitment and progression of talented Black professionals to senior grades. So, I hope the Bar will unanimously support the Charter. If not now, when?”

“I would strongly encourage any CILEX members considering a career in the judiciary to look at applying. Over the last two years I have been contacted by several CILEX members seeking advice and guidance about becoming a judge and I’m glad I have been able to inspire others to apply for judicial office. Whilst the application process is tough, I have demonstrated that, with the right skills and expertise, it is achievable and well within reach for many CILEX lawyers.”

CILEX Chair, Chris Bones says: “It’s fantastic to see Elizabeth become the first full-time, CILEX member of the judiciary. CILEX lawyers are increasingly making it to the top of the legal profession, as judges, partners and business owners. Just last year we saw Millie Grant become the first CILEX Fellow to be appointed an Honorary Queen’s Counsel.

“There is still considerable underrepresentation of women and ethnic minorities in our judiciary. This

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urgently needs to change to ensure the judiciary better reflects the society it serves. With a diverse membership, CILEX has an important part to play, and Elizabeth’s appointment sends

a message to our members, that the judiciary is a potential career path for them.”

There are currently six other CILEX

About the reviewers

BSB publishes independent review of the August 2020 BPTC Exams The Bar Standards Board (BSB) has published the independent review of the August 2020 Bar Professional Training Course (BPTC) exams. The review was commissioned by the BSB in November 2020 and was conducted

by Professor Rebecca Huxley-Binns, the Pro-Vice-Chancellor (Education) of the University of Hull and Dr Sarabajaya Kumar, an interdisciplinary social scientist based at University College London, who is also an equalities consultant and a disability activist.

The Review finds that the difficulties experienced by candidates sitting the August 2020 examinations were due to a variety of factors. The Review therefore contains a number of recommendations. In response, the BSB has also today published its Action Plan to ensure that the regulator acts upon those recommendations. The Action Plan is grouped into five main themes and includes measures to: •

•

•

• •

improve the BSB’s communication and engagement with students and training providers during the exams process; make the centralised assessments more accessible and inclusive especially for those who need reasonable adjustments; make the BSB’s approach to policy and process development in this area more inclusive by improving the regulator’s engagement with key stakeholders; introduce a critical incidents policy and improve data protection and project management; and clarify the roles and responsibilities of the BSB and training providers in the management of the centralised exams and, where the BSB contracts with a third party supplier, to hold external parties to account in a more structured and formal way with clearer service expectations and performance measures.

Responding to the Review, the Chair of the BSB, Baroness Tessa Blackstone, said “First and foremost, I should like to apologise again to all those students who faced difficulties completing

Fellows sitting as judges as well as 12 solicitors who initially qualified through CILEX, some of whom are also full-time judges.

Professor Rebecca “Becky” HuxleyBinns was appointed Pro-ViceChancellor (Education) at the University of Hull in January 2019, having previously held the role of ViceProvost, Academic Enhancement, at the University of Law.

their exams last August. The BSB had to move from pen and paper based assessments delivered by training providers to arrange computer based assessments in a very short period of time in the middle of a global pandemic. Ordinarily such a change would have taken at least 12 months to plan and to pilot. I am pleased that the report finds that the BSB was right to seek to offer computer based assessments and right to contract with Pearson VUE to deliver the exams, including to run remote proctoring for the students sitting the exams online and to book testing centre spaces for students unable to take the exams remotely.

Around 75% of BPTC exams were completed but far too many students faced difficulties which should never have occurred. The BSB’s staff worked very hard to implement the new arrangements for the exams but we very much regret that many students had a difficult experience both in booking and sitting the exams.

The Board has welcomed the Review

by Professor Huxley-Binns and Dr Kumar. It has approved the Executive’s proposed Action Plan and will ensure that the Review’s recommendations are put into effect. The Board has discussed the Action Plan with Professor Huxley-Binns and Dr Kumar and they fully endorse the Plan as meeting the recommendations in their Review. I am pleased that the Review found no failure of governance. The Board is determined to ensure that the BSB learns the lessons for the future.

Those lessons will be of great help to the BSB and to future students. We are very grateful to all those who have contributed to this Review and I should like once again to repeat my apology to those who had difficulties last August.”

Prof Huxley-Binns has held a number of academic posts in legal education including Co-Director of the Nottingham Law School Centre for Legal Education at Nottingham Trent University. She was Law Teacher of the Year in 2010 (nominated by students). She is also a member of the UK Teaching Excellence Awards Advisory Panel and was Chair of the UK Quality Assurance Agency Law Subject Benchmark Statement Review Group 2015.

Prof Huxley-Binns has also been a senior examiner for ‘A’ level law, Principal Examiner for Criminal Law for CILEX and an experienced external examiner to University Law Schools.

Dr. Sarabajaya Kumar is an interdisciplinary social science academic, an equalities consultant and a disability activist. She teaches leadership and public policy to international civil servants and civil society leaders at University College London (UCL), and has previously taught at the London School of Economics and Political Science (LSE), the University of Oxford and the Open University.

Her research interests are in accountability, governance, intersectionality, ethical leadership and disability; and her current projects relate to disability equality and artificial intelligence.

A Fellow of the Royal Society for the Encouragement of Arts, Manufactures and Commerce (FRSA), she is also an accredited Executive Coach with extensive experience of coaching and mentoring university academics, grantmakers and social entrepreneurs.

About the BPTC exams The BSB sets and marks the BPTC exams in Civil and Criminal Litigation and Professional Ethics as centralised assessments and the BPTC providers set and mark the other exams.

Students who were unable to complete their exams in August have now had three subsequent opportunities to do so in October, December and April.

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Criminal legal aid no longer a sustainable career, warns CILEX

Working as a criminal legal aid lawyer no longer represents a sustainable career path for its members, CILEX (the Chartered Institute of Legal Executives) has warned, arguing that a failure to address the desperate resource crisis in the sector “threatens the stability of the entire system” at the cost of justice to the consumer.

It recommends that improved working conditions are necessary to increase stability in the market and rebuild the pipeline of providers, including by making duty lawyers salaried posts, as opposed to remuneration paid on a case-by-case basis.

CILEX has seen a steady decline in the number of CILEX practitioners choosing criminal law as their longterm career path, with 50% fewer members electing to study criminal law than in 2012. This contrasts with those qualifying into areas such as conveyancing and civil litigation, where numbers of new entrants have continued to rise.

appears to discredit certain parts of the legal profession, further undermining the good will on which the system increasingly relies.

Overall numbers of CILEX members practising in criminal law are also declining, suggesting many are leaving the profession altogether, a trend that CILEX sees as “a testament to the unfavourable working conditions and remuneration rates” they face.

These restrictions have the notable effect, CILEX argues, of limiting opportunities and career growth for CILEX Lawyers. The opportunities available to students and junior lawyers in pursuing a career in criminal legal aid are restricted from the outset and this drives some out of the sector and harms the pipeline of talent needed to meet the demands of the criminal justice system.

Responding to the Ministry of Justice’s call for evidence to its Independent Review of Criminal Legal Aid, CILEX argues that a “disjointed approach” to addressing deficiencies in the sector has failed to deliver “fair pay for work done” at all stages of the criminal law process, particularly the earlier stages of representation and investigation.

CILEX also expresses concerns about the impact of political rhetoric around ‘lefty lawyers’ and ‘do-gooders’, which

The response says evidence from members suggests “a gradual departure of talented professionals from the defence sector as they become more and more attracted to the higher wages and greater job security offered by institutions such as the Crown Prosecution Service”.

CILEX also highlights barriers to progression for CILEX Lawyers working in criminal law, both in defence and prosecution. This includes rules that prevent CILEX practitioners from becoming Crown Prosecutors and the lack of recognition entrenched within the Criminal Litigation Accreditation Scheme, which fails to account for the level of training and competence that CILEX Advocates possess.

CILEX argues that payments from the Legal Aid Agency (LAA) are insufficient for small firms to recruit and train junior staff and calls for a funding system that encourages sustainability, quality and efficiency, where firms are paid appropriately and incentivised to invest in their staff so that the workforce gets the training they need.

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The response explains that some legal aid firms are overloaded with work but, because legal aid contracts have continued to be extended rather than put out to tender, more flexible firms with some capacity to help, have been unable to step in.

CILEX states that both the level and process of payments need “fundamental reconsideration” to consider and encourage alternative delivery models and a diversity of business practices to support ongoing sector sustainability. The response goes on to say: “Given the tight margins in this work, for many firms the fact that payments are made in arrears, but all expenses incurred up front, is becoming increasingly problematic.”

This situation has been exacerbated by the pandemic.

CILEX also suggests that changing the duty lawyer model to integrate better with demand in the police station, operating as a salaried appointment, could help to provide greater certainty to income expectation and expenditure for the Treasury.

“This would not only improve interactions within the varying participants of the criminal justice system, allowing for more effective deployment of resources across criminal legal aid than the current Duty Solicitor Call Centre is able to deliver, but would also have the added benefit of establishing known fixed costs.” CILEX President Craig Tickner, a specialist criminal defence advocate, says: “For years the criminal legal aid system has been subject to devastating funding cuts. Whilst piecemeal efforts have been made to tackle the problem, this has done little to prevent the decline in the sector, which is now haemorrhaging talent. “It is hardly surprising that aspiring criminal lawyers are instead opting to go into other areas of law, that firms do not have the resources to train juniors, and that experienced criminal legal aid professionals are taking the difficult decision to leave.

“The need for reform to secure fair pay for work done at all stages of the criminal law process remains urgent.

Criminal case backlogs are at an alltime high and failure to tackle the crisis with holistic, top-down reforms risks the collapse of our justice system.”

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LAPG launches 2021 Legal Aid Census ‘to show true state of social justice sector’

Lawyers across England and Wales are urged to ‘stand up and be counted’, by taking part in a unique drive to gather data from the legal aid front line.

LAPG survey has been devised in conjunction with leading legal academics from Newcastle University Law School, Cardiff University and University College London who will be analysing its findings.

Legal Aid Practitioners Group has launched the 2021 Legal Aid Census, to gather extensive data about the backgrounds and lived experiences of those working on the social justice frontline.

The census is supported by other representative groups, including Shelter, Housing Law Practitioners Association, Legal Action Group and the Black Solicitors Network, and aimed at everyone working in legal aid, those aspiring to work in legal aid and those who have left practice, at all levels (with questions tailored, accordingly). Business owners and charity managers will have the chance to share data about overheads, the cost of complying with Legal Aid Agency bureaucracy, salaries, training, recruitment and system failures. All participants will be asked about the toll of the work on their wellbeing, particularly during the pandemic.

You can access the Legal Aid Census here The census will complement the work of the APPG on Legal Aid’s Inquiry into sustainability of the sector, which completed its oral evidence sessions

last month (March 2021). The crossparty Inquiry is expected to report in September 2021, with a series of practical recommendations that can be implemented quickly to help legal aid providers recover from the impact of the pandemic. Data collected will be fed into the Treasury’s Spending Review and both the MoJ’s review into the sustainability of civil legal aid and Sir Christopher Bellamy’s review of criminal legal aid.

Official statistics show that the number of organisations with legal aid contracts has plummeted in recent years: civil legal aid offices have halved since 2013 (down to 1,774 in October 2020, from 3,500 pre-LASPO); with a similar drop in criminal legal aid offices over the same period (down to 1,058 from 2,338). 101 civil and criminal legal aid firms have been lost over the course of the pandemic alone.

The census will be the first detailed exploration of the financial and other pressures behind lawyers giving up publicly-funded work.

LAPG CEO Chris Minnoch says:

‘We know from anecdotal evidence, and what we see with our own eyes every day, that the social justice sector is in crisis. The calamity caused by LASPO has been made immeasurably worse by the pandemic, but our government still refuses to act with the decisiveness and speed we know is needed. What we have lacked – and what the census will give us for the first time – is the hard data to back up our calls for urgent reform.’

LAPG Head of Parliamentary Affairs and APPG Lead Rohini Teather says:

‘We are urging every single legal aid lawyer across England and Wales to take part in LAPG’s Legal Aid Census, which has been roadtested by busy practitioners to make sure it is straightforward and easy to complete. The more of you who take part, the more data that we can gather and the stronger the case we can make to government. By giving us a few minutes of your time now, you will be helping to shape the legal aid scheme for many years to come.’

About the Legal Aid Census: LAPG’s 2021 Legal Aid Census launches on 12 April, and closes on 11 June. The survey data will be analysed by Dr Jacqueline Kinghan, senior lecturer in law and social justice, Newcastle Law School, Dr Jess Mant and Dr Daniel Newman, senior

lecturers in law, Cardiff University, with oversight by Dr Nigel Balmer, Research Director of the Victoria Law Foundation and fieldwork by UCL’s Centre for Access to Justice.

All surveys will be completed online, and findings will be used to shape LAPG’s wider policy and campaigning strategy. The census will be promoted extensively through social media by LAPG and other representative groups, and through direct contact with legal aid providers. Practitioners will be able to complete the census online and will be asked to answer questions in the following capacities: • • • •

as managers/owners within legal aid organisations; as legal aid fee-earners; as students and those trying to join the legal aid profession; as former legal aid practitioners who have chosen to leave the sector.

Those answering the survey on behalf of their organisations will be asked about delivery of legal aid post-LASPO and post-pandemic, plus about offices, fee-earners, contract compliance and other administrative details. LAPG has spent months working with the academics and practitioners and refining the questions so as to make them as user-friendly as possible.

About the APPG on Legal Aid inquiry: The cross-party Westminster Commission on Legal Aid conducted six oral evidence sessions from October 2020-March 2021, taking evidence from lawyers and clients, across all the key areas of legal aid. It was chaired by Karen Buck MP with Vice-Chair James Daly MP and is expected to report in September 2021. Other panel members include Baroness Helena Kennedy, Baroness Natalie Bennett, Lord Low, Lord Bach, Gareth Bacon MP, Andy Slaughter MP, Laura Farris MP and Yvonne Fovargue MP

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.

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extremely timely as the need to p.1 transform how cases involving allegations of domestic abuse has become increasingly urgent and efforts to answer that need have been gathering momentum over recent years. In June last year the MOJ’s Independent Panel (‘Harm Panel’) published its final report “Assessing Risk of Harm to Children and Parents in Private Law Children Cases”5 and on 30th March this year the Court of Appeal issued the first landmark judgment in this field since 20006 when its decision in the conjoined appeals in Re H-N [2021] EWCA Civ 4487 was handed down. Consequently, the passage of this legislation provided a most timely opportunity to contribute to transforming for the better how the family (and criminal) jurisdiction manage such cases.

The Harm Panel identified ‘four overarching barriers to the family court’s ability to respond consistently and effectively to domestic abuse and other serious offences namely resource constraints, the adversarial nature of family proceedings, the family court’s apparent ‘pro-contact culture’ and, the way in which the different jurisdictions and agencies work in silos. A fundamental issue is the difficulty in securing legal aid for such cases and the consequences of the same. As a result of the Legal Aid, Sentencing and Punishment of Offenders Act 2021 (LASPO) legal aid has been means-tested in such cases effectively denying many adequate access to justice. In turn this had led to litigants in person being a common feature of these cases. A welcome change which will be effected by the Act is a statutory prohibition on unrepresented alleged perpetrators cross-examining the alleged victim.

However, despite the advocacy of the Bar Council and others, the opportunity to reverse the swingeing effects of the LASPO 2021 abuse, was ignored.

Similarly, the Bill failed to grasp the opportunity to tackle the apparent ‘pro contact culture’ of the family court by reversing the presumption in favour of contact enshrined in law by section 1(2A) of the Children Act 19898 and case law. Had statutory reversal of that presumption been a step too far, the Bill could have tempered that culture by creating a statutory presumption that in cases where domestic abuse and harm to the child(ren) is proved direct contact is contraindicated.

Within the criminal jurisdiction the Act similarly offers some progress whilst simultaneously eschewing the opportunity to deliver other statutory change and swerves the opportunity to embed structural change in statute. On the plus side, efforts to create a specific offence in respect of strangulation have succeeded; this will bring solace to many and, if the experience in New Zealand is a marker, will “help police (and others) identify this critical risk factor in the overall response to domestic abuse”9. Further, the ‘revenge porn’ offence is extended to

include threats to disclose intimate images and the offence of controlling or coercive behaviour can be committed post separation. These are all positive steps to be welcomed.

Antithetically, there are some significant missed opportunities.

Significantly, the Commons stood firm in rejecting the Lords’ efforts to extend the so-called ‘householder defence’ to victims of domestic abuse on the stated basis that the defence of duress is sufficient to address this issue. This, in the face of evidence gathered by the Centre for Women’s Justice illustrating that the defence is not consistently effective. A feminist legal critique would argue that the failure to extend this defence reflects the structural gendered discrimination that remains inherent in the criminal justice system. Indeed, it could be argued that deep-seated gender discrimination and stereotypes, if not outright patriarchy, is the crux of the decision not to include misogyny, either as a crime or as a means to categorise and monitor offending. Equally disappointing is the decision not to create a so-called register of stalkers and serial perpetrators modelled on the Violent and Sex Offender Register (Visor) which holds information about those cautioned, convicted or released from prison for a sexual offence against children and adults.

the requirement effected by Articles 4(3) and 59 that support for victims of domestic abuse is also extended to migrant women. Acceptance of this requirement would have eased ratification of the Convention at a time when the UK is seeking to reassert its position on the global stage and assert its human rights credentials. This is indeed a missed opportunity.

In conclusion therefore it is tempting simply to be critical and say that the Act misses the lofty ambitions espoused by several key politicians and in doing so it disappoints in so many ways.

However, the fact that we have a Domestic Abuse Act at all, and one that sets out a comprehensive definition of ‘domestic abuse’ for the first time, makes it deserving of the adjective ‘landmark.’ Indeed, there is much to welcome in this new Act and quite how effective it is will, as ever, depend very much on those of us tasked to bring it to life and give it effect. Here’s to improving the way in which we deal with cases of alleged domestic abuse for the betterment of us all, especially the survivors.

Celestine Greenwood, barrister, Exchange Chambers --------------https://www.bbc.co.uk/news/ukpolitics-49910926

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Applying a human rights framework to the Act results in further disappointment. Despite valiant and sustained lobbying efforts by many groups, the Commons rejected the Lords’ amendments that would have extended the protections provided for by the Act to migrant victims of domestic violence who have no recourse to public funds. On 14th June 2019 the Joint Committee for the Draft Domestic Abuse Bill published a report outlining their recommendations for the Bill. These included recommendations aimed at addressing the needs of migrant women who have no recourse to public funds. The Home Office conducted a review and published its findings in July 2020. In a response that can only be described as feeble, the Government claimed, despite that review being comprehensive, that a pilot scheme to “help gather the data that is needed to develop sustainable solutions for all migrant victims of domestic abuse over the long-term”10 is required.

The refusal to include such migrant victims is clearly prima facie discriminatory. Lamentably, in adopting this stance the Government has further postponed the opportunity, which has been in existence since 2012, to ratify the Istanbul Convention.

The Convention is recognised globally as the ‘gold standard’ on addressing violence against women and girls.

The UK signed the Convention at the first opportunity in 2012 but since then has been dragging its feet in terms of ratification. A key sticking point in ratifying the Convention is

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https://www.robertbuckland.co.uk/news/ justice-secretary-robert-buckland-says-newlaws-including-non-fatal-strangulation-lawwill

2

https://www.gov.uk/government/ publications/domestic-abuse-bill2020-letter-from-baroness-williamsto-peers-following-second-reading/ letter-from-baroness-williams-to-peersaccessible-version

3

https://bills.parliament.uk/bills/2709

4

https://www.gov.uk/government/ consultations/assessing-risk-of-harmto-children-and-parents-in-private-lawchildren-cases

5

Re L (Contact: Domestic Violence); Re V (Contact: Domestic Violence); Re M (Contact: Domestic Violence); Re H (Contact: Domestic Violence) [2000] 2 FCR 404; [2000] 2 FLR 334: https://www.bailii.org/ew/cases/EWCA/ Civ/2000/194.html

6

https://www.judiciary.uk/wp-content/ uploads/2021/03/H-N-and-Others-childrenjudgment-1.pdf

7

https://www.legislation.gov.uk/ ukpga/1989/41/section/1

8

https://www.theyworkforyou.com/ pbc/2019-21/Domestic_Abuse_Bill/100_2020-06-16a.329.3

9

https://assets.publishing.service.gov. uk/government/uploads/system/uploads/ attachment_data/file/897472/Migrant_ Victims_of_Domestic_Abuse_-_Review_ Findings_v.3._FINAL.pdf

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countries are derived from or p.1 maintain a strong link to English common law principles. English law is well understood in these countries and continues to be followed (in various degrees) to this day.

Consequently, when those countries are involved in international transactions, English law often became a natural and reassuringly familiar choice for parties to those agreements.

outcomes may depend on the local sensibilities of a judge or jury in a different country.

Whilst this might have started with the Commonwealth, English contract law has increasingly being deployed in international contracts in civil law countries for cross border deals.

Under an English law contract, parties are encouraged to set out all the terms they want to apply. The upside with this is that if there is a dispute, the parties have a single handbook they can look to remind them what they agreed would happen in that eventuality. Put shortly, it does what it says on the tin.

The certainty and convenience of English contract law has proved a useful selling point.

One important difference between English law and Code Civile countries is that, in commercial contracts, there’s no implied overarching duty of good faith. This may impute obligations of disclosure or requiring reasonable diligence in the performance of contractual obligations, while observing moral and ethical behaviour standards.

While the idea of good faith sounds on its face attractive, it injects an element of uncertainty as to the standard of behaviour expected from the parties to the agreement. This may be acutely felt in cross border transactions, where cultural differences often exist, and

Further whilst continental contracts are much shorter, this is achieved by lifting set terms out of statutes and codes.

This limits the flexibility of the contract and presupposes a pre-existing knowledge of that country’s civil code and statutory references alluded to.

By doing this, it has also allowed parties greater flexibility in designing a deal that accurately fits their needs and manages the risk and exposure if things go wrong. This has seen English courts being amenable to permitting and enforcing limitation of liability causes, waivers of consequential loss, fixed damages clauses, time, and procedural bars on claims, “knock for knock” indemnities and “pay when paid” clauses.

Underpinning this is an assumption that the businessmen will know better what a good bargain for them is than any legislator or judge. Reassuringly for parties, our courts have long held a deep-set aversion to interfering with

parties’ freedom to contract. This gives the businessmen not merely greater flexibility but a greater sense of certainty as to how his contract will be interpreted by the court.

Whilst English law place underpinning international contracts looks reassuringly safe, there is no reason for complacency. The economic benefits of the success of our legal services market has not been going unnoticed.

Thus, we see increasing numbers of foreign lawyers training in English contract law so that they can offer that additional service to their clients. In Europe, both Eire and Luxembourg have positioned themselves as contenders to challenge the UK’s market share.

By Professor Mark Watson-Gandy, barrister Mark Watson-Gandy is the author of Simple Contract Law: A brief introduction to English Contract Law

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What does the Serco trial collapse mean for Deferred Prosecution Agreements?

Harry Travers, partner, and Alex Swan, senior associate, of BCL Solicitors LLP

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n February 2014, Deferred Prosecution Agreements (“DPAs”) were introduced in England & Wales under section 45 and Schedule 17 to the Crime and Courts Act 2013. They were designed as a tool to enable the Serious Fraud Office (“the SFO”) and the Crown Prosecution Service to reach agreements with corporate organisations to defer their prosecution for a criminal offence, in exchange for certain conditions being met. The rationale underpinning the DPA regime, as stated by the Government in its 2012 response to the consultation on DPAs, is to “…allow prosecutors to hold offending organisations to account for their wrongdoing in a focused way without the uncertainty, expense, complexity or length of a criminal trial.”

Furthermore, DPAs would enable prosecutors “…to bring more cases to justice, and secure outcomes, including restitution for victims, more quickly and efficiently.”

Since February 2014, nine DPAs have been entered into between the SFO and corporates, all approved, as required in law, by the court as being “in the interests of justice” and containing terms that are “fair,

At the end of April, the Serious Fraud Office’s prosecution of two former Serco executives dramatically collapsed after it emerged the agency had made mistakes when disclosing documents that jeopardised the trial. Harry Travers and Alex Swan of the white-collar crime team at BCL Solicitors look at the implications on individual prosecutions following corporate Deferred Prosecution Agreements

reasonable and proportionate”. Each DPA has contained a “statement of facts” (“SoF”, agreed between the SFO and the corporate) which details the facts underpinning the criminality the corporate defendant has accepted responsibility for. However, the SFO has failed to secure a single conviction against any of the individuals it has subsequently prosecuted in connection with the conduct underpinning those DPAs. The ability of the DPA process to readily secure the acceptance of criminality by a corporate entity on evidence which does not survive the robust scrutiny of a criminal prosecution raise important questions: is the DPA regime meeting its stated objectives, and even if so, to what degree of success?

Serco Geografix Ltd The stark contrast between the SFO’s ability to secure lucrative DPAs with corporate suspects, and its inability to secure convictions of the individuals whose alleged conduct underlies these DPAs, is illuminated by the recent collapse of the SFO’s trial against two former directors of Serco Geografix Limited (“SGL”).

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In the DPA between the SFO and SGL entered into in July 2019, SGL accepted responsibility for fraud and false accounting based on the actions of two former directors and agreed to pay £19.2 million and SFO costs of £3.7 million. Both ex-SGL directors were subsequently charged with fraud but four weeks into their trial, the SFO (in its own words) “uncovered errors made in the non-disclosure of certain materials.” The judge considered these errors to be extremely serious, refusing the SFO’s application for an adjournment to allow it to remedy the position and facilitate a retrial. The judge further commented: “It seems to me there are…real concerns in relation to the nature of the prosecution case against these defendants.” This left the SFO in the unfortunate, but self-inflicted, position of having to offer no evidence. Compounding its woes, the SFO is likely to have to pay significant defence costs. It comes as no surprise that the SFO stated that it is “…considering how best to undertake an assessment to prevent this from happening in the future.”

The SFO has had some success prosecuting corporates. It successfully prosecuted Smith and Ouzman Ltd

for an offence of corruption (the first conviction of a corporate for overseas bribery) in 2014, secured a guilty plea to an offence of failing to prevent bribery by Sweett Group plc in December 2015, and more recently in April 2021 secured a guilty plea to one count of corruption by GPT Special Project Management Ltd. However, it is the DPA regime which has delivered most of the SFOs success against corporates; to date, it has secured nine DPAs, resulting in over £1.5 billion in financial penalties and in excess of £32 million in costs. This is significant when one recalls that the SFO’s core funding for the year 2019/2020 was approximately £52.5 million. Despite this success, though, the SFO has failed to secure a conviction against any of the 11 individuals it has prosecuted in the four prosecutions that have resulted from a DPA: Sarclad Ltd, Tesco Stores Ltd, Güralp Systems Ltd, and now SGL. Does this anomaly demonstrate a systemic problem in the DPA regime, in the SFO’s ability to prepare and bring a case to trial, or both?

test.

Systemic problems?

Recent commentary on DPAs have focussed on a few key themes: an alleged lack of judicial scrutiny in the approval hearings (apparently evident from the swiftness of the process); the fact that judgments have become progressively shorter; and the nonpublication of hearing transcripts.

Perhaps the real question is: “what has been scrutinised?”, to which the answer appears to be “whether the company should be avoiding prosecution or paying a bigger financial penalty given the agreed facts.” There has been no judicial consideration at all of whether the SoF is justified by the evidence, and in particular whether the evidence justified an agreed ‘fact’ that an individual (who is not a party to the DPA proceedings) had committed a criminal offence. Whilst a DPA does require judicial approval, the judge does not, and is not required to, assess whether the evidence underpinning it is sufficient to establish the agreed facts; the judge’s task is instead to assess and declare that the DPA is in the interests of justice, and that its terms are fair, reasonable and proportionate. Understandably judges will not be encouraged by either the SFO or the relevant corporate to test the evidence underpinning the agreed facts; rather their focus will be on having the DPA judicially approved.

In all these circumstances, it is hardly surprising that: (i) in many cases where the SFO has subsequently properly considered the evidence, no individual was prosecuted; and (ii) in other cases where the SFO has prosecuted individuals thus far, they have been subsequently acquitted.

When considering whether to enter into a DPA with a corporate, in accordance with paragraph 1.2 of the DPA Code of Practice (“the Code”), prosecutors must satisfy themselves that there is evidential sufficiency and that it is in the public interest to proceed. In considering the evidential stage, they must be satisfied that there is: •

•

sufficient evidence upon which a properly directed jury is more likely than not to convict (i.e., the ordinary evidential test that each prosecutor must be satisfied of in any prosecution); or if not, then a reasonable suspicion based upon some admissible evidence that the corporate entity has committed the offence, and that there are reasonable grounds for believing that a continued investigation would provide further admissible evidence within a reasonable period of time, so that all the evidence taken together would be capable of establishing a realistic prospect of conviction.

The second limb of the evidential stage is notably more diluted than the first and requires a degree of tasseography; in essence, the prosecutor can have a reasonable suspicion that an offence has been committed, but they must also believe that continued investigation would yield admissible evidence within a ‘reasonable period of time’ that would satisfy the evidential sufficiency

It is worth noting that, of the nine DPAs agreed to date, it is clear that four (viz. Sarclad, Tesco, Güralp, and G4S) have proceeded under the first limb of the evidential stage, and three have proceeded under the second limb (viz. Standard Bank, Airbus, and SGL). Considering that it took the SFO six years from commencing its SGL investigation in 2013 to obtain a DPA, it is remarkable that, despite such a lengthy period of investigation, the SFO was still unable to satisfy itself of the ordinary evidential stage test.

Given that SGL was a domestic case and did not require any Mutual Legal Assistance requests, it is unclear what further evidence the SFO believed a continued investigation would yield.

This leads to the next question: does the existence of the second limb encourage speculation by prosecutors at the key evidential stage?

Lack of scrutiny and a false sense of accuracy

Most lawyers in the UK are of the view that our adversarial system produces a high quality of justice, involving a robust assessment of all the relevant evidence by a court. By marked contrast, the DPA regime is consensual and not adversarial, and does not require judicial scrutiny of the underlying evidence. It can also be said that it encourages the SFO to become wedded to a view of the evidence that it thinks has been approved by the Court. It is interesting that in response to an interview in the Daily Telegraph by one of the acquitted SGL defendants, the SFO is quoted as saying that the SoF was approved by the judge in the DPA hearing, implying that the judge had tested it against the evidence. That is simply not what happens, but this misconception may cause prosecutors to become closedminded to the problems with their cases.

Whatever the answers to the various questions raised by the disparate outcomes achieved in DPAs versus subsequent prosecutions, it is clear that the DPA process allows the SFO and corporate entities to accept criminal wrongdoing on the basis of evidence which, when tested, does not stand up to scrutiny. It should not be forgotten that in the Tesco case the trial judge, Sir John Royce, ruled that the evidence was “…so weak that it should not be left for a jury’s consideration” – a finding upheld by the Court of Appeal – when Tesco had already accepted in the SoF the guilt of the defendants who were subsequently acquitted. With history repeating itself in the SGL case, it is likely that all eyes will be closely monitoring the efficacy and fairness of the DPA regime going forward.

About the authors Harry Travers, partner, and Alex Swan, senior associate, of BCL Solicitors LLP specialise in high-profile and complex business crime and regulatory matters. They regularly act for individuals in SFO, FCA, HMRC, CMA, NCA and police investigations, frequently advise High Net Worth individuals, and their work often encompasses complex cross-border matters. They have represented individuals in five of the nine SFO investigations connected to DPA proceedings.

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Lessons Learnt from a Pupillage during Covid-19

By Callum Ross, Barrister, Chavasse Court Chambers reduction of footfall in Chambers and the Courts.

Lack of Trials: Comparing my experience of first six with those of other pupils who completed pupillage pre-pandemic, this was one area which stood out to me as being markedly different. I didn’t see a trial until July, some 3 months into pupillage. After this, trials were few and far between until September time due to the huge reduction in sitting trial courts across the country. Even when trials were being run, it was difficult to get into court due to the restrictions on people and social distancing.

An Introduction: I started a criminal law focused pupillage in April 2020. Fresh off the back of spending three months travelling Asia. Safe to say, the March 23rd announcement of a national lockdown was a crash back to reality.

1 The announcement was met with confusion and anxiety by most. From my point of view, I met it with sheer panic. Having arrived back from Tokyo just days before, I self-isolated for 14 days as per the Government guidance at the time. I spent that 14 days stewing on whether I would even be starting my pupillage in April or not.

Fortunately, the Chambers who had made me an offer indicated that my place was still firmly there, and it was a matter for me whether I took it and started in April, or whether I waited until a later date. Given that my coffers had run dry from my travels, I had no other employment lined up and I had been itching to start for the 10 months since I had received my offer, I made the decision to commence my pupillage. The rest of this short article will document my thoughts on experiencing pupillage during the pandemic and its effects on the beginning of my career at the Criminal Bar. Skype Supervision and Covid Court: The first two and a half months of my pupillage went by in a whirlwind.

I entered a ‘real’ courtroom only a handful of times. Most of my time was spent in the bedroom of the houseshare I was living in, sat at my desk attending ‘Skype Court’ with my supervisor and other members of Chambers.

To say this was a weird start to a pupillage would be an understatement.

I, like many other pupils around the country, had been waiting patiently to start pupillage and get into court most days. Instead, I was now sat in my bedroom wearing a suit and slippers.

Strange didn’t come close.

I have been fortunate to have a very understanding and positive supervisor, who did her stellar best to keep my spirits up and my mind focused. But it was still daunting, and I felt like hearings were often slipping me by without my brain engaging as much as it would have had I been there in the actual court to observe. I often felt that I was ‘missing something’ and confusing the court process as a result. It all seemed very alien in comparison to how I had imagined the commencement of my career in the profession and admittedly I think this threw me a bit.

Chambers a Ghost Town: Along with missing out on being in real courtrooms for the initial few months of first six, I also didn’t make it into Chambers until 3 months after commencing pupillage. In any event, even now, Chambers is much quieter for the most part. I have seen the same handful of practitioners and our clerks who continue to use it as a work base during the national lockdowns, but that has been it. Coming to the end of my pupillage and still not having met some members of Chambers has certainly been strange.

Having come to the criminal Bar hearing about the tales of everyone being in Chambers in the morning before court discussing their morning cases and preparing means I feel I have missed out massively on not only learning, but also getting to know everyone, due to the pandemic and the

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Although the flipside meant that I saw a huge amount of administrative hearings, sentencing and other such work which has been immensely valuable for second six so far, not seeing as many trials has reduced the amount of witness handling I was able to observe before doing it for myself in second six. Fortunately this was something recognised by my supervisor, who made sure we did plenty of mock exercises so I didn’t miss out.

The Transition to Second Six: Thankfully, by the time I was due to get up on my feet in November 2020, things court-wise had settled down somewhat. We have continued in the same way since, so I have found myself mostly appearing in person in courts across the North-West, with online appearances for those hearings a little further afield.

The transition from sitting behind your supervisor to being up on your feet is a whirlwind and one that has the adrenaline pumping for weeks on end. I would be willing to wage that Covid-19 has made no difference to this, and I doubt it ever would. It will always be a change met with a strong mix of excitement, enthusiasm and nerves. I don’t think that changes regardless of whether you’re behind a computer screen remotely or in court itself.

There are, however, some lessons for future pupils which I have made a note of over the last twelve months which I have learned from during my ‘pandemic pupillage’.

Lessons Learnt: 1. Communicate: This has been critical to me in a variety of different ways over the lockdown period(s). As a pupil, you are still learning the ropes

whilst trying to work well and build relationships with instructing solicitors and other barristers.

You face new experiences and new situations you have not dealt with before, every single day. So communicate – with your supervisor, with other members of Chambers, with your clerks and with your opponents in court. Do so in person, on the phone, or via email. If you have a problem you are not sure how to tackle, speak up. Ask for help. This does not change just because you are not seeing people as much, or because you are working more from home. I think the best thing my supervisor taught me at the start of my first six was that there is no such thing as a stupid question, unless you don’t ask it. The age old adage still applies whatever the realm: communication is key.

2. Take Every Opportunity:

are concerned and has helped me to begin to ‘market’ myself. These are the sorts of things you don’t think about as a student with an aspiration to the Bar, but one which is critical to the business side of things. Getting into the habit of saying ‘yes’ as opposed to ‘no’ has, I think, been something which has helped push me forwards over the last twelve months.

year to make sure I integrate with my Chambers, get to know as many people as possible, get out and be healthy and maintain a good work/life balance. I feel this has contributed to a positive mindset and a greater enjoyment of my work. The work we do is meant to be rewarding, enjoyable and interesting, and in some part has helped to keep me going during the lockdowns over the last year or so.

3. Be Tech Savvy: Making good technological decisions during the lockdown periods has aided me massively with work and the transition from first to second six. It is easy to often let stresses regarding technology worry you before court, but by spending some time researching tech tips and making sure everything is updated has paid wonders for me.

During pupillage, every day presents new opportunities, for work and for learning. Take every single one. I have benefitted in first and second six from online marshalling, focused talks from judges and counsel, advocacy exercises, conducting research, in-person marshalling, and working on all manner of interesting cases.

Organisation is key and the technology side that organisation is just as important, especially in a world where there are so many remote hearings nowadays. Being early into waiting rooms and links always helps to settle my mind, as does ensuring that all my technology is ready to work the night before so I am always ready for the morning to reduce the chance of any last-minute panics occurring.

Not only have I learnt from these experiences, but it has opened doors where further opportunities

4. Enjoy:

Conclusion: Covid-19 has been strange for all of us, and it was certainly not the beginning of my career I had anticipated. What has not been changed by Covid one bit is the inclusivity and camaraderie at the Bar. I can only speak for criminal practitioners given that is the area in which much of my pupillage has been focused, but I have been astounded by the welcome I have received and by the offers of help that are always on hand should I need them. I think it would take considerably more than a pandemic to ever change that attitude. It is one of the main reasons I now feel so privileged to be a part of this profession and I look forward to helping to carry that mantle forward for hopefully many years to come.

Callum Ross, Barrister, Chavasse Court Chambers https://www.bbc.co.uk/news/uk-56491532

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I have done all I can over the last

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The Pandemic Pupil

By Danae Larham, Pupil Barrister, Cornwall Street Barristers

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s well as “it’s great to meet you, if only through as screen”, the other most common phrase I have heard during my pupillage has been, “I’m so sorry you’re doing pupillage in these circumstances”.

It had not been something I had particularly pondered on for, like most, I was simply thrilled and grateful to have a pupillage. As I recently expressed to a fellow pupil: a pandemic pupillage is better than no pupillage at all. I do still stand by that, however now as I begin the penultimate month of my 1st six after having spent time with junior and senior members alike, I’m starting to understand why so many members have taken the time to express these sentiments to me.

In my view, pupillage (and in fact practice) can be broadly divided into two main elements. There is of course the main ‘job’ itself getting into court, working on papers and watching advocacy and proceedings in general. Then there is the other side: the building of your brand, your business, and developing your practice. The latter is unique to each practitioner in how they go about it but does require significant input, including getting to know members

of Chambers, building relationships with the clerks, networking with your instructing solicitors, and even meeting other members of the Bar in the various robing rooms around the country. Some, not least my own naïve pre-pupillage self, may simply see this as the ‘social side’, since attending circuit dinners is not something that is necessary in order to complete your pupillage, even if perhaps it is an added pleasure or bonus. However, I am quickly learning that this aspect is far more than that, and building these connections is what is going to assist me and other pupils as we subsequently try to build and curate a practice.

Taking the first and main element, the work itself, I think the pandemic has had limited impact on pupils, certainly in my own experience. My pupillage thus far has been excellent; Chambers have been completely supportive and my supervisor in particular is doing everything in his power to make things as ‘normal’ as possible. I do think pupils are benefitting in a similar way to the majority of practitioners at the moment, not only because we are finding we can attend court in our slippers but also because of the sheer amount of work we are able to fit into

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one day. The volume of hearings I am able to observe when remote is double or even triple what I would be able to see in person. Whilst a year ago I may have been travelling across the country to watch a single directions hearing, now I can sit at my desk and get through a Stage 3 hearing, a bail application and an appeal all in one day. It has its drawbacks which many at the Bar have highlighted of late, however from a pupil’s point of view, where we have only 6 months to see as much as we possibly can to prepare us for being on our feet, seeing this quantity of work has been invaluable.

The latter of the two elements is the main part of the journey that has had to fall away during the pandemic.

Whilst Zoom social evenings make a good second place and can assist with building relationships with members of Chambers, there is no similar replication for meaningful networking with solicitors; I’m 5 months in and have never met any of our clerks in person! If you’re lucky enough, after logging on to the virtual court platform, you may have a minute or two for a brief chat with your opponent but must sit alone whilst you are ‘waiting for the conference host to join’. That is the exact moment that I believe pupils have

been missing out on- the inevitable waiting around at court which is put to best use by speaking with other members of the Bar, solicitors, and court staff is how you learn the true day to day functioning of the profession and how you grow as an advocate. It is certainly something that I think and indeed hope will return very soon.

The bigger question perhaps is what can be done about it in the meantime?

While personal to each Chambers, Cornwall Street have certainly been proactive in ensuring I am getting the ‘full experience’. I’m encouraged to attend online events, juniors regularly call for a Chambers’ common room style chat, and I’ve had multiple coffees sat outside in the cold, just so I could have a post hearing debrief.

It’s those sorts of efforts by other members which really make the difference.

It’s not just Chambers that are doing what they can; the Circuits and Inns have been trying to close the gap too.

My Midlands Circuit ‘Pupil’s Advocacy Weekend’ was moved completely online as have lectures and social

evenings with my Inn. The South Eastern Circuit have set up their own initiative taking account of the reduced court days that pupils will experience and are this month offering a virtual observation scheme for pupils and juniors of 3 years call. The scheme is being piloted in Cambridge Crown Court with HHJ Cooper who is also offering a Q&A session after the court day to further assist.

It certainly remains to be seen what lasting effect, if any, the pandemic will have on this generation of lawyers.

Will it really have an impact on our capability to build a practice?

Might it be the case that due to a reduced amount of time in court, that experience is somewhat diminished and thus affects our ability to learn and improve? I don’t believe that will be the case and feel there is a real sense of the profession rallying around to ensure that those just starting out are supported as well as they can be and that any potential gap is filled.

I have seen and experienced some wonderful examples of this in my first few months. Most notably, members who I’m shadowing that day, always take the time to speak with me

beforehand to discuss the papers and how I would approach the relevant hearing or task, then ensuring that after the hearing they follow up and answer any questions that have arisen.

This is something that may seem really simple and expected, but when you’re not at court, or don’t have a nearby coffee shop to sit in afterwards, it is something that can easily fall away, particularly if it is not the only matter to be dealt with that day.

I don’t think I’ll be the last generation of pandemic pupils, and it is difficult to establish how fundamental the impact of restrictions will be on the very nature of practice at the Bar in the long term. However, I’m extremely grateful for the efforts that Chambers’, and the Bar more widely have been putting in to help make it feel as ‘normal’ as a pupillage can be during this unique period. I like to think that there will be plenty of ‘making up’ to do once restrictions lift, and that a sense of normality will soon return to life at the Bar – if that isn’t an oxymoron.

Danae Larham, Pupil Barrister Cornwall Street Barristers

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discovered fire.

Meanwhile the independent bar is, and was even before the pandemic, a profession which allows many of its members the flexibility to work from home. For example, for those civil barristers with a busy paper practice the ability to work from home has long been a great advantage to the bar. This flexibility will of course be a doubleedged sword for barristers with a busy criminal practice who may often find themselves working evenings and weekends.

The Modern Bar As a relatively new first six pupil I have really enjoyed my time in the profession so far. This is, of course, in spite of the current Covid-19 pandemic. Like all crises this one has certainly proved to be a catalyst for change. This is true both in terms of government led change, such as social distancing and in terms of industry led changes such as calls from many professionals for more flexibility and support in the workplace.

Perhaps we should stop and take stock on where all this change leaves the bar as a profession.

By Harry Dyson, Pupil Barrister, Park Square Chambers, Leeds

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hroughout the pandemic I have kept an eye on forums such as LinkedIn and Twitter and have watched with interest how different professions and industries are handling it. Any readers who have done the same will have noticed a surge in posts on LinkedIn and generally an increase in engagement. Undoubtedly, you will also notice that there is a new-found focus on businesses providing a healthy and productive work life balance for their employees. This got me to thinking about how the self-employed bar measures up to these standards.

The pandemic has caused a workplace

revolution in terms of how so many people now ‘work from home’. It looks like this change is here to stay with huge businesses such as Natwest saying their employees can continue to work remotely for the foreseeable.

LinkedIn is full of posts discussing the benefits of working from home, and now as we ease out of restrictions, the benefits of having a mix between ‘going in’ and working remotely. I have lost count of the posts I have seen asking users to ‘vote’ on their preferred mix.

Generally speaking most professionals seem to favour around a 50/50 mix of working remotely and ‘going in’. It is as if the professional world has re-

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When it comes to working remotely, the bar can certainly be said to be ahead of the game. Perhaps this goes a long way to explain the relative ease with which barristers adapted to remote hearings using Microsoft Teams and the Cloud Video Platform. Whilst we are all vulnerable to talking whilst we are on mute and to WiFi issues, overall counsel up and down the country are now operating effectively in remote hearings. After all aren’t adaptability and flexibility key features of the bar?

I can think of few other jobs which demand such attributes from its members as the criminal bar. Many readers will be used to the idea of having a PTPH in York in the morning and a sentencing in Leeds at 2pm followed by a conference in chambers at 4pm. Much of which may have been put in your diary only the day before.

LinkedIn with its new found surge in engagement from users is also full of posts about how to create a healthy collaborative working environment.

There is everything out there from suggestions for online team building events to Zoom quizzes and many other tips on how to make a welcoming atmosphere. Again, perhaps I am just greener-than-grass as a pupil, but I couldn’t help but think there is a lot to learn from the bar.

The bar is certainly different to any other environment I have worked in.

Or rather the people are unlike any others I have worked with before. I have been struck by how everybody has been extremely welcoming. That is not to say I have worked with unwelcoming people before, far from it, but the bar has been quite different.

Every member of chambers I have met has been keen to introduce themselves and enquire as to how my pupillage is going so far. I have received emails from several members of chambers just to say hello and to offer their services should I ever get stuck with anything.

Many of these people have been interested in what practice areas I am interested in and what I would like to observe during pupillage. Contrast that with a normal working environment,

whilst your immediate superior and your team is likely to make an effort, you wouldn’t expect somebody in a different department (or office) to drop you an email just to say hello. I think there is a lot to learn from how members of the bar invest their time and enthusiasm into the profession by encouraging its newest recruits.

When it comes to being collaborative, surely the bar, and more specifically the chambers system, is a fantastic example of a healthy collegiate working environment. I have been struck by the willingness of barristers to both ask for help and provide help wherever they can. This can be from anything to a second view on a legal argument, finding case law or recovering robes left in a distant court. I have observed an incredibly healthy atmosphere where asking for help is the norm and is encouraged. This will be hugely different to many professional environments where people are reluctant to ask questions in case they are judged by their colleagues.

The pandemic has also put into sharp focus the problem which many professions face; how to network effectively and connect with their peers. Even before the pandemic many professionals struggled with this. Networking events can be scarce and attendance at all levels requires

employer support to attend during working hours.

The bar on the other hand is probably one of the most sociable professions out there. There is everything from circuit events such as mess, to chambers’ weekends. Many such events are free to us pupils. There is also the infamous robing room. Being a pupil at a large chambers means Leeds robing room has in my experience often been populated by members of my own chambers. However, even those who are not are equally friendly.

Again, something which you wouldn’t expect in any other profession. On only a few trips to the robing room I have already learnt a great deal, including a refresher course on how to tie my bands and a crash course on how to convert a normal shirt to a tunic shirt should you forget to wear one.

However, one thing the self-employed bar definitely has in common with the rest of the working world is that it has a lot to benefit from the changes ushered in by the pandemic.

We wait with bated breath to see to what extent remote hearings will be used in the long term. Should they remain a feature the benefits could be substantial. One immediately thinks of those among us with young families and the junior end generally who could stand to save a lot of money on

travel expenses. Furthermore, as the courts start to get busier again we should spare a thought to the judiciary and how continuing to have remote hearings could afford greater flexibility and allow them to hear matters more efficiently.

Whilst the bar is often the butt of criticism for having too many out of date traditions and being too oldfashioned, I have to suggest that perhaps we have gone full circle.

The bar is in many respects a very modern profession from which a lot can be learnt as we emerge from the pandemic. Many of the qualities now demanded from a workplace environment are present at the bar.

So, the next time you read a forwardthinking LinkedIn post, remember as a barrister you are working in one of the most flexible and modern professions out there. Then put on your wig and gown and bow at the end of each day to the sound of the court clerk announcing ‘god save the Queen’ and enjoy the irony.

Harry Dyson, Pupil Barrister, Park Square Chambers, Leeds

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The fallout from Schrems I and Schrems II The “Schrems II” judgment of the CJEU in July 2020 has raised a number of significant issues for data controllers which transfer personal data outside of the EU/EEA. It appears likely that similar issues will apply to data controllers in the UK despite the UK leaving the EU, not least because of the high likelihood that one or more data subjects will be in the EU at any particular time and able to make a complaint to an EU supervisory authority.

By Ian Beeby, barrister at 10 King’s Bench Walk In this paper I summarise the background to the decisions and identify some of the risks raised by them.

short gestation period in implementing decision (EU) 2016/1250 of 12th July 2016.1

Background – Schrems I

Schrems II

In 2015 the CJEU dealt with a reference from the High Court of Ireland in relation to a case brought by Maximillian Schrems against the Data Protection Commissioner (the Irish data protection supervisory authority, “the DPC”) concerning the DPC’s refusal to investigate his complaint against Facebook Ireland’s transfer of personal data to the USA.

Mr Schrems duly reformulated his complaint which was lodged on 1st December 2015 (before the Privacy Shield arrangement had been put into effect) in which it was alleged that, as US law required Facebook Inc. to disclose data that it transferred to US authorities (including the NSA and the FBI), the Commission’s SCC decision (Commission Decision 2010/87/EU of 5th February 20102) was breached by Facebook’s transfer of his personal data to the USA. He alleged breaches of Articles 7, 8 and 47 of the Charter of Fundamental Rights of the EU (2012/C 326/023) being, respectively, the right for respect for private and family life; the right of protection of personal data; and the right to an effective remedy and to a fair trial.

The CJEU ruled (Schrems v Data Protection Commissioner and another [2016] 1 QB 527), that the arrangement entered into by the European Commission (“the EC”) with the United States Department of Commerce, known as “Safe Harbor” [sic] was invalid.

The court’s description of the arrangement and the way in which it was entered into amounted to forceful criticism of the EC process when it entered into the agreement. The agreement was a nullity and hence was void ab inito. All data transfers carried out under its terms were, in effect, unlawful.

The judgment, known colloquially as Schrems I, causes a significant stir in the markets and businesses which had hitherto relied upon the “Safe Harbor” regime had hastily to make alternative arrangements to regain lawfulness.

Following the decision of the CJEU the original complaint was remitted to the DPC who invited Mr Schrems to reformulate his complaint as Facebook Ireland had (at least by then) stated that it relied upon standard contractual clauses (“SCC”s) in order to safeguard the data subjects’ rights when transferring personal data to the USA. The new arrangement In double-quick time the EC agreed an alternative arrangement known as “Privacy Shield”. The new arrangement came into effect after a remarkably

The DPC published a ‘draft decision’ on 24th May 20164 in which she concluded (at 64) that US law did not provide EU citizens with legal remedies compatible with Article 47 of the Charter and that the SCCs were not capable of remedying the defect as they conferred only contractual rights which were not binding on the US authorities.

The DPC took the matter to the High Court of Ireland which led to a further reference to the CJEU. In the reference, the High Court of Ireland took of its own motion the question the validity of the “Privacy Shield” decision which had replaced “Safe Harbor” in addition to the validity of the SCCs (Mr Schrems’ reformulated complaint).

The judgment Firstly, the court decided (at 77-79) that the questions referred should be answered in the light of the provisions of the GDPR (Regulation 2016/6795) rather than those of Directive 95/46, despite opposing submissions.

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The first question a) As national security remains the responsibility of each Member State, the rule in Art. 4(2) TEU is not relevant in the present case to the consideration of Art. 2(1) and Art. 2(2)(a), (b) and (d) of the GDPR; and b) Second, the Regulation (GDPR) applies to ... data transfer for commercial purposes whether or not at the time of the transfer or thereafter the data was liable to be processed by the authorities of the third country for public, defence or State security purposes.

The second, third and sixth questions Inter-alia, rights conferred by the Charter (and the ECHR) override other considerations. Where EU legislation does not refer to Member State legislation, even that of a constitutional nature, EU law cannot be construed in the light of that Member State law. EU law prevails, therefore, except where it expressly does not.

The court held that Articles 46(1) and 46(2)(c) of the GDPR must be interpreted as meaning that the appropriate safeguards, enforceable rights and effective legal remedies required by those provisions must ensure that data subjects whose personal data are transferred to a third country are afforded a level of protection essentially equivalent to that guaranteed within the EU by the Regulation (the GDPR) read in the light of the Charter [my emphasis].

This is, in essence, a repeat of the test set down by the court when it struck down “Safe Harbor” in 2015.

The eighth question In the absence of a valid adequacy decision, the supervisory authority is required to suspend or prohibit a transfer of data to a third country pursuant to SCCs under the circumstances outlined above and in particular if the GDPR Art. 45 and 46 rights and Charter rights cannot be ensured by other means (and where the data controller has not itself suspended or put an end

to the transfer).

The seventh and eleventh questions While SCCs are in principle valid, they are only valid where the third country’s laws do not give authorities there the right to access the data in a manner which would breach the data subjects’ rights under the GDPR and the Charter.

The long answer to these questions is therefore a “qualified yes”.

The fourth, fifth, ninth and tenth questions The court concluded (after detailed analysis (163-198)) that Art. 1 of the EC’s “Privacy Shield” decision was incompatible with Art. 45(1) of the GDPR when read in the light of Articles 7, 8 and 47 of the Charter. On that basis, as Art. 1 of the decision was inseparable from Articles 2 and 6 and the annexes, that failing undid the validity of the whole decision.

Fall-out considered by the court The court considered (at 202) whether its decision would create a legal vacuum. It concluded rapidly that Art. 49 GDPR covered the conditions under which transfers of personal data to third countries may take place in the absence of an adequacy decision under Art. 45(3) GDPR or appropriate safeguards under Art. 46 GDPR. The court was satisfied that no legal vacuum would be created.

Discussion First, as the Commission decision relating to “Privacy Shield” was struck down as invalid, it was rendered unlawful ab initio. Therefore, it follows that any transfer of personal data made under the cover of “Privacy Shield” is and was always unlawful. This is an almost identical situation to that which prevailed following the fateful 2015 decision concerning “Safe Harbor”.

The result of this decision raises two significant issues: a) The decision making competence of the Commission in relation to these serious matters must be called into question. While this is a political matter rather than a legal one, it follows that businesses now need to see a greater degree of transparency and rigour in Commission decision making in order to be confident that future decisions can be relied upon; and b) Data subjects whose data was transferred (and especially those whose data continues to be transferred following the handing down of this judgment) have potential cause for complaint against the organisations relying on “Privacy Shield” for that transfer. Such a breach, were a court to find that it is actionable, is probably irremediable by the data controller.

Second, it is clear from a detailed

analysis of the judgment that SCCs are only valid where the laws of the third country allow the relevant protections required by the GDPR and the Charter to be maintained. This, it seems, puts a significant burden of due diligence on the companies which are seeking to rely on SCCs to investigate the laws of third countries to ensure that the SCCs can be effective. In effect, each data controller is responsible for doing the work which should be undertaken by the Commission when making (or not) an adequacy decision.

of implementing SCCs may now be prohibitive given the effect of the Schrems II decision.

Conclusion

“BREXIT”

Any organisation which was reliant on “Privacy Shield” to support the lawfulness of its transfers of personal data to the USA should have ceased doing so immediately. Other organisations could do worse than to check that they are not using the services of those which are erroneously still reliant on “Privacy Shield” to avoid issues resulting from unlawful transmission of personal data.

Concurrently with the above, the United Kingdom resolved to leave, and eventually left, the European Union.

Many readers may be asking why the Schrems decisions are of any importance to those businesses operating in, or transferring personal data from, the UK.

The USA was never the beneficiary of an adequacy decision (in the way that, for example, New Zealand and Argentina are) as “Safe Harbor” and “Privacy Shield” were bespoke arrangements.

However, the Schrems II decision goes far beyond transfers of personal data between the EU and the USA.

When the UK left the EU certain provisions of EU law ceased to apply to those in the UK. In particular, while the GDPR remains as “retained EU law”6, crucially the Charter of Fundamental Rights ceased to have effect.

Within GDPR, any reference to “the rights and freedoms of data subjects” amounts to a reference to Charter rights. There is therefore the possibility, if not the probability, that UK law will gradually diverge from that of the EU even where the written provisions are, as in the case of the GDPR, identical.

While SCCs remain technically valid, that validity has been qualified by the CJEU and it seems likely that the judgment in this case renders the value of SCCs somewhat limited owing to the high burden on the data controller (in the EU/EEA or in the UK) to ensure that the destination state has adequate protection. Now that the burden on data controllers to verify the legal safeguards available in destination countries has been made clear, all destinations covered by SCCs, save where an adequacy decision is in place, are potentially open to challenge. A careful review of the use of SCCs would be prudent to any destination where there is no adequacy decision in place.

Nevertheless, save as modified by the Data Protection Act 2018, the text of the GDPR continues to apply in the UK in a UK centric context. The full text (as modified by any local implementing legislation in each Member State) applies in respect of any “natural person” who is “in the Union”. As such, although owing to the dreadful Covid-19 pandemic there have been few examples recently, any UK resident who happens to be “in the Union” is able to avail of EU law and of the rights under the Charter as applicable to those persons “in the Union”.

For any but the most tiny and parochial of businesses which handle personal data, and especially for those large enough for there to be any point in transmitting personal data to a third country for processing, it is submitted that there is a significant likelihood that one of their data subjects could be “in the Union” at any particular time.

Therefore, UK data controllers need to pay careful heed to their position visa-vis both UK and EU law post-”BREXIT”.

Since the “BREXIT” transition period ended, the UK ICO has adopted, at least for now, the EU SCCs and stated that BCRs will continue to apply7. However, in common with the EU, there is no replacement for Privacy Shield in place.

This means that only BCRs or SCCs will be available with the exception of a few very limited circumstances (Art. 49). For smaller organisations the cost

Further, while not included expressly in the CJEU judgment, BCRs, it is submitted, are likely to fall foul of a similar challenge whereby while their use is not wrong, there is a burden on the sending data controller to ensure that the intention behind the BCRs is supported by the laws of the receiving jurisdictions.

Ian Beeby, Barrister at 10 King’s Bench Walk --------------https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2016.207.01.0001.01.ENG 2 https://eur-lex.europa.eu/legal-content/en/ TXT/?uri=CELEX%3A32010D0087 3 https://eur-lex.europa.eu/legal-content/EN/ TXT/?uri=celex:12012P/TXT 4 https://epic.org/privacy/intl/ schrems/20160524-DPC-Draft-Decision.pdf 5 https://eur-lex.europa.eu/eli/reg/2016/679/ oj 6 See also: https://commonslibrary.parliament.uk/research-briefings/cbp-8375/ 7 https://ico.org.uk/for-organisations/ guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/international-transfers-after-uk-exit/ 1

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Building a system to protect students from sexual harm

By Ian Brownhill, Barrister, 39 Essex Chambers

Experience If you haven’t read the survivor testimonies on, “everyone’s invited”, then I would encourage you to do so.

The website (everyonesinvited.uk) gives an opportunity for people to outline their experiences of sexual misconduct in education settings.

The experiences range from verbal or online harassment to what are clearly sexual offences including rape.

The survivors are of both genders, the perpetrators are of both genders.

Some of the perpetrators described are individuals in authority, teachers or staff members at institutions. Other perpetrators are close friends or total strangers.

The incidents have taken place in a variety of different locations, some are at house parties or in public places.

Others are in boarding houses at schools or in classrooms. A number of the testimonies describe incidents

which took place on school trips or the commute from home to school.

For some survivors their experience has carried with them into adulthood, a secret they have only shared anonymously on the website. In other cases survivors have shared what happened with friends. A few detail how they had reported what had happened to them to authority figures, they tended to have told teachers and on many occasions were told to ignore what had happened.

Surprise Some people are surprised when they read the survivor testimonies.

The Secretary of State for Education described the testimonies as, “shocking and abhorrent” according to The Independent. Perhaps some current school and university students will be shocked by what they read, as will those who work in educational settings.

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I am not surprised at the number, variety, or contents of the testimonies.

For one, the Women and Equalities Committee of the House of Commons produced a report in September 2016 titled: Sexual harassment and sexual violence in schools. In the conclusion, the Committee was quite clear:

Sexual harassment and sexual violence in schools is a significant issue which affects a large number of children and young people, particularly girls, across the country.

Evidence shows that the majority of perpetrators of this abuse are boys, and the majority of victims are girls. However it is essential that the negative impact on both boys and girls is recognised and addressed.

In my own practice, I have dealt with sexual harassment and sexual violence in education settings every year since becoming a barrister. At the start of my career it was often in the context of the Youth Court, today I deal with

these matters in internal processes at schools, exclusions and appeals, cases in the Court of Protection, the Administrative Court and in the County Court. What is universal in these cases is the surprise that at least somebody in the school’s leadership will express that an issue has arisen at their school.

Responses Universities have not perfected their responses to sexual harassment and violence. However, many are better prepared compared to schools.

In particular, the vast majority of universities have now adopted their own sexual violence and harassment policies. These policies provide for particular processes to be followed when there a sexual allegation or issue raised. Comparatively, schools have kept the issues of sexual violence and harassment embedded in other policies. Often these are policies to do with discipline, safeguarding or on occasion even anti-bullying.

Whereas many universities have established clear procedures as to when the police will be involved in a particular issue, a number of schools haven’t done the same. Where issues are investigated internally, it tends to be teachers who lead. Comparatively, a number of universities have now contracted with consultancy companies who employ former police officers to investigate such allegations.

The Government’s response was to set up a helpline with the NSPCC and to ask OFSTED to review safeguarding processes. OFSTED are posing eight questions which range from inspection frameworks to why children and young people don’t feel able to report sexual misconduct. Ofsted have stated that they will work with representatives from social care, police, victim support groups, school and college leaders and the Independent Schools Council. The review is due to conclude by the end of May 2021 and will seek to establish where safeguarding arrangements and processes are good and have worked well and where improvements are needed.

multi-agency partners?

In my experience, schools have a strong understanding of safeguarding processes, especially where there is information which relates to inappropriate contact between students and staff. The requirement for mandatory training has embedded the concept of safeguarding generally in most schools. Processes start to fail, or become more complex, where there is a conflict as to which pathway is to be followed. The most obvious example being where there are concerns as to what has happened between students, this is sometimes managed as part of a school’s disciplinary process and a safeguarding focus is lost.

Does working between schools, colleges and local safeguarding partners, including local authority children’s social care, the police, health services and other support, need to be strengthened?

Undoubtedly so. Whilst awareness around grooming has increased, what is apparent from every one sinvited. uk is that there remain extant risks in this regard. Concerning too are the accounts where sexual images have been shared, or even sold, without the consent of the young person in the photograph.

The wider issue which often arises is when the police are involved and who decides to involve them. Likewise, there needs to be an increased awareness that the criminal justice system is not the only means of keeping young or vulnerable people safe from exploitative sexual behaviour.

The High Court has stepped in to offer a protective solution, see for example Birmingham City Council v SK [2016] EWHC 310 (Fam) and Re SF (Injunctions) [2020] EWCOP 19.

However, for these injunctive solutions to work there has to be a sufficient body of evidence to put before the court.

How does the current system of safeguarding in schools and colleges listen to the voices of children when reporting sexual abuse whether occurring within or outside school?

Of the eight questions they have posed, there are three which OFSTED could helpfully pose to lawyers who are instructed in these cases.

The reporting system is now established and embedded in most schools. However, that system has a focus upon where a child or young person discloses abuse. What is more difficult is information being captured and shared where the child or young person is not the victim of abuse but is perhaps a witness to it.

How well are safeguarding guidance and processes understood and working between schools, colleges and local

Anecdotally, those in safeguarding roles within schools raise concerns with their lawyers that safeguarding

A lawyer’s perspective

referrals do not always garner a response. Likewise, it is apparent that students have been discouraged from reporting issues as, “boys will be boys” or because incidents have taken place outside of the school setting.

A thought-provoking response to everyone’s invited has been from some schools who have indicated that they cannot look into anonymous or historic complaints. Whilst it would be difficult to conduct a review as to whether particular incidents occurred, it is less difficult to review whether there was appropriate action taken at a material time. A number of charities and schools have undertaken similar reviews in recent years.

A system However OFSTED answer their eight questions, it is obvious that things need to change. That change is likely to manifest itself in some form of policy or legal framework. A broadly drafted statutory duty is of questionable utility.

Whatever framework is devised, it has to accept that safeguarding students from sexual harm in schools cannot be the sole responsible body. Likewise, the framework has to equally apply to those students who go to independent schools as to those who attend state schools and academies.

The framework for schools should learn from the experience of universities and should consider whether sexual violence and harassment should be a standalone policy or process within schools, distinct to the main safeguarding or behaviour policies.

There ought to be a clear, auditable, understanding of what information will be passed to the police and other safeguarding partners. Survivors, and indeed schools, need to have a clear set of expectations when other public bodies are involved.

An expectation that something will be done when an issue of sexual violence or harassment arises is the foundation of a system which properly protects students from harm. It acts as a deterrent too, it deters not only the perpetrators of such harm but would also discourage those who would simply dismiss sexual harm as a cultural issue, or a matter of immaturity.

Ian Brownhill, Barrister, 39 Essex Chambers

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In Defence of Remote Working

By Alex Lawson, barrister, 33 Bedford Row with me during the hearing, something which they very much enjoy, feeling that they are always in communication with their counsel rather than looking at the back of my head.

More generally just as written and oral advocacy are different art forms, as it the virtual hearing.

4. It is affecting well-being

L

ockdown is (hopefully) ending, spring has sprung (kind of), the pubs are open (sort of).

Everywhere we look, the world seems to be coming back to life. The end of 2020 – that strangely prolonged year is in sight, despite it now being nearly halfway through 2021. Minds appear also to be turning to what happens next, to life after Covid, and what happens to the courts now that things are starting to return to normal. Do we go back?

It seems that I am already arguing a lost cause here, in that the Bar Council has already described virtual hearings as “markedly inferior”1 that they present “very considerable challenges to advocacy.” It might be that my experience of virtual courts has been different but there are considerable advantages to remote hearings which it is important to ensure are not lost in the rush of enthusiasm to go outside again.

Firstly though, some concessions. None of what I am about to say applies to crime as such, and if it does, it does so in only a roundabout way. Secondly, a declaration, I am 2015 call, it might simply be that the type of cases I deal with are not of sufficient complexity to raise concern. However, I would like to deal with some of the common criticisms of remote hearings.

1. It does not work properly, it’s slow, this one time I had to wait an hour because the defendant’s camera wasn’t working, etc.

The counter argument to this is that the technology was introduced at very short notice as a rushed solution to a very obvious viral problem. Things have most definitely improved. It may be that I am more tech-savvy than some, and I very much do not claim any expertise, but the initial technical difficulties seem to be reducing as things bed in. Regardless this is far better than being block listed – something which seems

to have died a death I am pleased to say. It is also better than engaging with the woeful state of the court estate, I would rather have to deal with intermittent internet connections than the roof falling in.2 Technology solves many issues which I do not fondly remember. The witness bundle has been lost (again)?

Screen share it.

2. It affects access to Justice.

For whom exactly? For large and/ or cases, these can always be held physically, but family proceedings are private, and members of the public attending most civil cases is almost unheard of. Despite the pitch invasion of the High Court by Swindon Town F.C.3 this is down more to a failure to create appropriate permissions for the audience than any innate issue with remote hearings. For clients of limited means, appearing virtually is far better than spending money to access increasingly difficult to get to and vanishing court centres.

It is my experience that most if not all clients have access to a smart phone, and if not, they will have access to a solicitor’s office where they can (now that restrictions are lifting) attend the hearing. Don’t forget that working remotely also increases judicial availability as Skegness can become Southampton County Court very easily.

3. That certain Je ne Sais Quoi is lost Again, it is a new experience for all of us, we have had to adapt, but on the other side, for clients, having court proceedings that are frankly, terrifying for many, from the comfort of their own homes, without having to be in the same room as the other side is a blessing. That you cannot pass notes or whisper is again something that can be addressed, I have taken to letting clients use instant messenger services to communicate

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I say this is simply rose-tinted glasses, of course we all miss the robing room and the pub. However we do not miss 4:30 am trains, bag searches, missing breakfast, working through lunch, and dinner while prepping tomorrow, late trains, wasting hours of our time and our health getting to and from hearings. I question what is better for well-being (and justice) exhausted advocates or those working more productively from home? Covid has been hard on all of us, but the statistics have been gathered during it. Yes we all miss the camaraderie, we all miss the elation of walking out of court after a win, but there is so much more that is being forgotten.

The simple fact is that the justice system was already very broken before covid, we now have an even larger backlog. If we can address this by being more nimble – it is perfectly possible to do two or three short matters a day now, by embracing the change, we can alter our working lives for the better. If the money saved in moving to virtual hearings was spent on the court estate, on improving the smaller number of courts required for only criminal work and those few trials that do need to be in person, we might even for once, see an improvement rather than another loss to the Bar and justice as a whole. Remote hearings should be the default in all cases, save where good cause is shown. The Bar is a wonderfully flexible profession, and one ideally suited to remote working, an opportunity is being missed here.

----------1 Law Society Gazette, 4th of May 2021, https://www.lawgazette.co.uk/ news/markedly-inferior-bar-councils-warn-against-virtual-justice-/5108351. article?utm_source=gazette_newsletter&utm_medium=email&utm_campaign=Bars+warn+on+virtual+justice+%7c+Retired+solicitors+unite+as+SIF+closure+looms+%7c+Rozenberg_05%2f04%2f2021 2 https://twitter.com/thecriminalbar/status/992073919862595587 3 https://www.legalcheek.com/2021/02/highcourt-video-hearing-thrown-into-chaos-after-intruders-share-pics-of-well-endowedmen/

Is the employed Bar the best route for a criminal pupillage, and beyond?

By Jack Berry, Pupil Barrister, Reeds Solicitors are. No doubt the funding position on legally aided matters needs to change and it needs to become workable for all those involved, who sacrifice a lot to join the profession in the first place.

In my experience, it would seem that perhaps the employed bar, at least for pupils and possibly junior barristers presents a more compelling route.

W

some sessions were specifically about being self-employed and managing tax affairs. Of course, essential for those taking the traditional route. Although, for me, this was one less thing I did not have to worry about.

It would be fair to say that since starting pupillage in September 2020 my life has not exactly been what I imagined it to be like when I was offered pupillage back in 2019. For example, I did not expect to be doing so much shadowing over CVP and working from home, and neither did I expect my Call ceremony to be online - via my laptop. That being said, I do consider myself lucky. I am lucky to have received a pupillage in the first place; with so many able candidates being left without so much as an interview, the system seems unfair.

I am lucky as my pupillage was not cancelled or postponed because of the pandemic, and thirdly, and perhaps most controversially. I consider myself lucky to be doing an employed criminal pupillage.

Each pupil was given the opportunity to speak about any challenges they have faced since starting pupillage. As you might imagine, the usual suspects came up: managing time effectively, feeling like an imposter and so on.

Although of course, the pandemic had created further challenges to overcome, from my experience getting used to working from home and tactfully handling poor internet connections became of note. However, a topic which also came up frequently was travel.

One pupil was driving one thousand miles each week to courts around the country and it seemed that travelling long distances and in some cases to multiple courts in one day was the norm. Although I am required to attend various courts around the west county, I am fortunate that I can cover the local area and travel times are short and without much hassle.

hen I was approached to write an article for the barrister magazine, the topic that came to mind was my experience so far, as an employed pupil at the criminal bar.

Around three months ago, I attended (remotely) a pupil’s advocacy training course run by my Inn, Middle Temple - a course in which successful completion is a requirement of the BSB before one can begin their second six.

Around twenty were in attendance.

Whilst there were two in-house pupils at the Crown Prosecution Service, most were taking the traditional route of a pupillage in chambers. Perhaps unsurprisingly, I was the only employed criminal pupil and it would be fair to say that my journey through pupillage is not conventional. This became even more obvious as the course progressed;

Being employed means that I can submit expenses each month for my travel and get paid for them at the end of every month, albeit Legal Aid Agency rates apply. In some cases, it seems that fellow pupils are having to travel at great expense to attend hearings in which they may not get paid, as for whatever reason the hearing might not go ahead, and even if it does the rates are so low that it makes it untenable.

This must be demoralising and would seem odd to those who might look at the profession from the outside - given how competitive pupillage places

Freedom and control of working hours might seem attractive to those pursuing the self-employed route. However, from my conversations with peers it would seem that, at least in the formative years, a lot of very long hours are required to make a living. I should point out that I am not a stranger to working long hours, having completed my bar course whilst working full-time, I had very little free time. However, now I am lucky in that I receive a salary and therefore I do not have any specific pressure to complete so many hearings a day, to cover my travel, food, and rent. I of course must make the firm money, but I am not stressed about money. I think that owing to my lack of free time during the bar course, and what the recent pandemic has taught me, namely the importance of family and friends and not glamourising long working hours.

The employed criminal bar appears to be more attractive. This perspective is epitomised by what Master Treasurer Andrew Hochhauser QC said at my Call ceremony: ‘it is important to work, but we must work to live, not live to work’.

Of course, I am defending, not prosecuting. Some might argue that doing both helps to create a more rounded advocate. Whilst this may be true, I am getting experience from varying offences, and of course, preparing them from looking at both sides.

I am not asserting that the route which I have taken is for everyone and that it necessarily represents the future of the criminal bar, or indeed the bar in general. However, in my submission, it does present an enticing prospect for those who wish to try an alternative to the traditional route and who are perhaps concerned about balancing their working and home lives, as in my experience it can present with a decent work/life balance. This is something which I consider to be very important and which I believe will become even more important to more people in a post pandemic society.

Jack Berry, Pupil Barrister, Reeds Solicitors

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Legal implications of EU AstraZeneca vaccine dispute and how the dispute could have been avoided

By Jade Brooks, associate, Blaser Mills Law

T

he dispute between the European Commission (“the Commission”) and AstraZeneca (“AZ”) continues, following the Commission’s decision to commence legal action against AZ for alleged breaches of the COVID-19 vaccine supply contract.

denies this.

Commission spokesperson, Stefan De Keersmaeker, confirmed it was the Commission’s view that “the terms of the contract, or some terms of the contract, have not been respected, and the company [AZ] has not been in a position to come up with a reliable strategy to ensure the timely delivery of doses.” In a statement issued on 26 April 2021, AZ noted that it “regrets” the Commission’s actions but that it remains resolute it “will strongly defend itself in court”. The dispute has also put a strain on UK and EU relations following the EU’s triggering of Article 16 of the Northern Ireland Protocol (“Article 16”), though they were quick to make a U-turn after widespread condemnation of this action.

What did AZ agree to do?

The Commission has stated on numerous occasions that AZ has failed, in breach of contract, to deliver the contracted quantities of AZ’s COVID-19 vaccine and, in order to rectify this alleged breach, AZ must send doses manufactured in the UK to the continent to make up for the shortfall arising from production problems at AZ’s Dutch and Belgium plants. AZ

Here, Nicholas Scott and Jade Brooks, of Blaser Mills Law, offer some insights on the dispute, how it could have been avoided and how this dispute might has impacted the current state of UK/EU relations.

So far as material, the contract states that AZ will use its ‘Best Reasonable Efforts’ to manufacture the 300 million ‘Initial Europe Doses’ and “deliver [redacted] quantities of vaccine to certain distribution hubs following EU marketing authorisation.”

The term ‘Best Reasonable Efforts’ is defined in the agreement as:

“the activities and degree of effort that a company of a similar size with a similarly-sized infrastructure and similar resources as AstraZeneca would undertake or use in the development and manufacture of a Vaccine at the relevant stage of development or commercialisation having regard to the urgent need for a Vaccine to end a global pandemic which is resulting in serious public health issues, restrictions on personal freedoms and economic impact…” .

Further to this, ‘Initial Europe Doses’ is defined in the agreement as follows:

“AstraZeneca has committed to use

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its Best Reasonable Efforts… to build capacity to manufacture 300 million Doses of the Vaccine, at no profit and no loss to AstraZeneca, at the total cost currently estimated to be [redacted] Euros for distribution within the EU [redacted] (the “Initial Europe Doses”).”

AZ’s delivery obligations The Commission claims that the contract contains binding obligations to deliver the Initial Europe Doses, essentially on demand and as determined by the Commission.

However, the contract’s drafting does not support this, referring instead to “Best Reasonable Efforts” to deliver [redacted] quantities of vaccine to certain distribution hubs following EU marketing authorisation.” As set out above, the definition of “Best Reasonable Efforts” does not mention delivery, and refers only to “development and manufacture”.

In fact, the sections of the contract dealing with delivery states that the parties “shall work together to identify the final delivery schedule for such Doses”. This sort of drafting is what you might expect to find in a framework agreement for e.g. delivery of commodities, where a shipping schedule has to be agreed to cover a period of months or even years, in order to accommodate the parties’ commercial needs. It is not at all obvious how this drafting creates an absolute obligation to deliver whenever

the Commission demands it.

Choice of Law: Belgian vs English Law Might the Commission have been better off with English Law? We do not pose this question to be tendentious, but in order to test whether the Commission’s choice of Belgian law worsened its position. The contract the UK government has with AZ is subject to English law, which takes the approach of holding the parties to the obligations created by the words used in their contract. Belgian law, (in common with other civil law systems) will instead focus on whether the parties acted in good faith and tried their best to deliver the vaccines. That is a more nebulous standard of performance, the pitfalls of which can perhaps be more easily avoided through the more precise manner of drafting obligations seen in commercial agreements under English law.

Avoiding such disagreements in the future The Commission’s contract betrays a certain lack of commercial common sense as it does not appear to give the Commission many (if any) contractual levers to effectively police the contract.

By contrast, the UK government’s contract with AZ states that if any third party tries to force or persuade AZ to take any steps that would hold up supply of vaccine doses, the UK

government can terminate the contract and activate various penalty clauses.

However, the Commission’s approach seems to have been to rely more on the broader civil law concept of good faith, rather than the English law approach of spelling out in the contract what should happen. That has been to the EU’s detriment.

The expected remedy It is understood that the Commission has waived its rights to sue AZ for any delay in delivery. The Commission could terminate the contract for a material breach but this would not result in delivery of any vaccine doses, so it would seem self-defeating.

Equally, it is relatively unlikely that a Court would order specific performance of the contract, as this would require diversion of doses from other countries, which would likely be prevented by some form of export control in those other countries.

Despite all of the noise from the Commission about legal action against AZ, it seems fairly unlikely that any legal action will result in delivery of more vaccine doses. As such, you have to question the merit of such action.

Was invoking Article 16 a step too far?

went too far, with the President of the Commission, Ursula von der Leyen, stating that “mistakes were made in the process leading up the decision to invoke Article 16, I deeply regret that”.

Michel Barnier, the EU’s chief Brexit negotiator, has since stressed the need to ensure that we are “preserving the spirit of co-operation” between the EU and the UK and has called for the EU to step back from a dispute with the UK over AZ vaccines.

However, the AZ row is undoubtedly linked to the other key issues that have impacted the UK-EU relationship recently, such as Brexit and trade.

This remains a developing picture, but the fact that the Commission is suing AZ and has dialled down the rhetoric about export controls on vaccines might be thought to suggest an element of rapprochement between the Commission and the UK in these unprecedented times.

Jade Brooks is an Associate in the Dispute Resolution team at Blaser Mills and is based at our London City office.She specialises in all aspects of Commercial and Civil Litigation, including contractual disputes, intellectual property disputes and disputes involving Directors, Shareholders or Partners

Northern Ireland’s first minister, Arlene Foster, branded the triggering of Article 16 “an incredible act of hostility”. The Commission has acknowledged that it

COVID Status Certificates – A Passport to Freedom?

By Julian Hayes, Partner at BCL Solicitors LLP

As the UK lockdown eases, friends and relatives are reuniting, shops are once again welcoming customers, and beer gardens are full of chatter. With GDP down almost 10% in 2020 and many businesses still on their knees as a result of the emergency measures, the Government is keen to ensure that the current momentum continues and the exit from lockdown is irreversible.

One method the UK administration - and others around the world - are considering is the introduction of timelimited COVID-status certification to help reopen the economy and society, reduce restrictions on social contact, and improve safety.

The proposal, apparently pitting longcherished freedoms against safety, was welcomed by UK sports bodies and some entertainment venues keen for the return of the public, but denounced by Church leaders and

privacy campaign groups appalled at the prospect of a dystopian medical apartheid. Though popular opinion is broadly in favour of the plan, it raises serious ethical and practical issues; an adequate legal framework would be essential if such certificates are not to undermine privacy and do long-term damage to the social fabric of the UK. What are COVID status certificates and why are they under consideration?

While the plan is still under development and separate schemes have been mooted for international travel and domestic purposes, the certificates would essentially record whether someone has been vaccinated, had a recent negative COVID test, or has immunity after recovering from the virus. There would also be exemptions for those who cannot be immunised

and for whom repetitive testing would be difficult. The certificates would be shown and verified on entry to participating venues and used to facilitate travel overseas.

Though digital and non-digital forms would be available, the Government is believed to have been exploring various technology to automate the process, including facial recognition and QR codes. It is believed the scheme would foster public confidence, encourage a return to normality, and promote vaccine take-up. Further, if the Government does not introduce national COVID-status certification, it expects private schemes will spring up to fill the void.

A slippery slope?

Proving vaccination status for international travel is not new but COVID status certificates for domestic

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purposes would be a radical departure. Critics raise a myriad of ethical objections but, at the heart of many of them lies the issue of consent. Though currently envisaged as voluntary and a way of opening up business and entertainment venues, detractors of the idea fear ‘scope creep’ – that domestic COVID status certificates would quickly become the unofficial ‘entry ticket’ to everything, from employment, to accommodation and even to dating. (Vaccination status is already touted as a ‘selling point’ on some Tinder and Bumble user profiles). In essence, opponents suggest, domestic COVID status certificates would become optional in name only, tacitly expected almost everywhere, and bringing fear of and social opprobrium on those unable or unwilling to comply. Moreover, while the Government intends to exempt essential public services, public transport and essential shops from the COVID certification scheme, these are some of the most crowded and therefore riskiest environments. It is easy to see how their exemption would be vulnerable to public pressure if an outbreak was traced back to one of them. Finally, if COVID status becomes certificated, how long before there are calls for the certification of other diseases, splintering society along health lines and unleashing untold discrimination not seen since the HIV and AIDS crisis of the 1980s.

Would they provide protection?

Despite such qualms, faced with exposure to potentially fatal illness, many people would readily trade ethical concerns in return for safety.

But would that safety be real or a dangerous illusion? The duration of vaccine or antibody-conferred immunity is undetermined, vaccination is thought to curtail but not stop coronavirus transmission, and the efficacy of existing vaccines against emerging variants is unknown. What is more, the reliability of widelyused, self-administered lateral flow tests varies. Given this uncertain background, COVID-status certificates based on vaccines, naturally acquired antibodies or tests might well bolster public confidence, but cause people to lower their guard and neglect social distancing precautions, increasing infection levels. As the Prime Minister himself warned, “the reduction in hospitalisations, and in deaths, and in infections has not been achieved by the vaccination programme… it’s the lockdown that has been overwhelmingly important…” and the SAGE Group advising the Government has warned that relaxation of social distancing will “highly likely” lead to a wave of deaths on a par with the second wave.

The importance of an adequate legal framework It is debatable whether any legal framework could entirely defend

and how personal data is being processed), fairness (processing personal data only in ways people would expect), data minimisation (limiting the personal data processed to what is necessary) and storage limitation (not keeping the personal data for longer than necessary). In what might have been a veiled admonishment of the Government, the ICO warned of a need for “a strong line from leaders on what is and is not acceptable” if public trust in such schemes was not to be undermined. against the perils of scope creep or stigmatisation, nor could it hold in check unfounded confidence that the risk of infection was over. Without a legal framework, though, the chances of such outcomes would increase dramatically, with the added risk that the personal data processed in the scheme could be exploited for all manner of purposes not originally envisaged.

Approaches to devising an adequate legal framework have varied geographically. While the US federal government has no plans to mandate a nationwide vaccine passport plan (and states such as Florida, Texas and Missouri have sought to ban them for domestic purposes), the Biden administration has been cautious, rejecting the idea of a national vaccination database but indicating its intention to set standards by producing guidelines to safeguard the privacy and rights of US citizens.

The EU has been more specific, with the European Data Protection Board, comprising each Member State’s national data protection regulators, issuing a joint opinion with the EU Data Protection Supervisor on the Commission’s so-called ‘Digital Green Certificate’. The joint opinion warned that, to maintain citizens’ trust, the scheme must comply with the GDPR (including ensuring adequate data security), respect the EU Charter rights to private and family life and to the protection of their personal data, be non-discriminatory and be strictly time-limited to the duration of the pandemic.

By contrast, the UK proposals, published in the Government’s roadmap review on 5 April and confirmed in a Ministerial written statement on 29 April, were relatively laissez faire, with a passing nod to equalities legislation but saying little more about the legal framework which should govern a COVID status scheme.

Despite the Government’s reticence on the subject, the UK Information Commissioner (ICO) has confirmed her involvement in consultation over the scheme and warning that any UK scheme must comply with national data protection legislation, including the UK GDPR and Data Protection Act 2018 (DPA). The ICO emphasised in particular the need for transparency (being open and honest about why

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Whatever domestic COVID certification scheme (if any) ultimately emerges, a fundamental requirement under the UK GDPR will be that organisations using it have a lawful basis for processing sensitive health data about individuals. The UK GDPR prohibits the processing of such ‘special category personal data’ unless additional processing criteria are satisfied, for example, with the explicit consent of the data subject or where the processing is necessary in the interests of public health. In the context of COVID-status certificates, however, neither of these lawful bases for processing is straightforward. For example, to be valid consent must be “freely given” which cannot be the case if, in reality, the individual has Hobson’s choice and they would be turned away from a venue if they refuse their consent. Public health grounds may appear a firmer basis for processing special category personal data. However, under the DPA, this carries with it the requirement that it be carried out either by a health professional or another person “who owes a duty of confidentiality under an enactment or rule of law”. Venues using public health as a lawful basis for processing would therefore face strict duties of confidentiality if they wish to stay on the right side of the ICO. Conclusion Throughout the pandemic, the ICO has emphasised that data protection law is not a barrier to responsibly using personal data to combat the coronavirus; though not easy to navigate, there would be a legal route through it to using COVID status certificates to help lift the population from the malaise of the past thirteen months. Indeed, adherence to data protection principles may help to build public trust in the scheme and avoid abuses which might fatally damage the scheme. Ultimately, though, judging whether to use this technological tool throws up many risks and involves asking - as the Information Commissioner put it – whether it would do what it says on the tin. Given the practical and ethical problems that arise with COVID status certification for domestic purposes, that may be a big ‘ask’.

Authored by Julian Hayes, Partner at BCL Solicitors LLP

The legal directories: Why bother?

By Justine Edelman, legal directories consultant and creator of Handyside.Legal

B

eing a barrister involves competing in a crowded marketplace. As a selfemployed professional myself I understand the pressures of trying to stand out in a crowd.

Techniques I employ include wearing bright colours (scarves or jackets only, not head-to-toe clown colours), applying red lipstick and finally, being as true to myself as possible. It is not rocket science but it is surprising how few people try to differentiate themselves in a positive way. For example, I met someone at a party before lockdown who introduced himself by name and followed it up with “I’m a boring banker.” It wasn’t a promising start and I have forgotten his name but not that line.

So, can the legal directories help you to stand out from the crowd? In my opinion, after 25 years of working in legal marketing, they can, and they do.

Being ranked in your main practice areas in the tables in either Chambers and Partners’ UK Bar Guide or the Legal 500 UK Bar edition is a useful marketing tool in a number of ways: •

• • •

• •

Reassuring your existing instructing solicitors that you are the right choice (and avoiding cognitive dissonance) Increasing your exposure within the legal market as a whole Raising your profile among your peers Providing third party testimonials that can be used on your website, LinkedIn profile and in a competitive pitch.

Helping your clerks to justify your fees and subsequent rate increases.

Supporting your set and fellow members of chambers as a whole

Where do you start?

Both directories ask for your five top cases for the past 12 months and for either five referees (Chambers and Partners) or 15+ referees (Legal 500).

You will also need a 100-word career summary and a submission form for each which you can find on the relevant website.

How do you choose your five best cases?

It does depend on your practice, but it helps if you include: •

•

•

Big numbers. It sounds obvious but it is helpful if you are involved in big money cases. Everyone can relate to £millions particularly if the reader is eking out a living on tuppence a year as a junior researcher.

A juicy storyline. Murder? Cripes.

Knives? Ouch. People falling out over a multi-million-pound business. Surely not? Do tell us why, businesses are founded on personalities and those can be big: the ramifications of a fallout can be huge. Whatever the story, tell it. The researchers have thousands of cases to read, make yours interesting.

A great punchline. What is the case really about? Why is it one of your top five? If you can’t answer this bin the case, it’s obviously not worth it.

It is worth remembering that the researchers are journalists, not judges.

They are highly intelligent but are likely to be in their twenties, not their seventh decade.

Other tips include using plain English.

A lay person needs to be able to understand your cases so if you use technical legal terms explain them, or better still, leave them out. Aim for a Plain English award, not a Golden Bull

citation: http://www.plainenglish.co.uk/ campaigning/awards/2020-awards/ golden-bull-award-winners.html How do you choose your referees?

Referees are the key to successful submissions so choose them carefully.

It is important that they know who you are. In the last round of interviews a researcher asked a referee about a particular lawyer and the answer was “who?”. At the opposite extreme, don’t include your mother! Referees do not have to be linked to a particular case. It is an advantage if they have known you for years as they will be able to wax lyrical about your particular skills as an individual. It is also helpful if they have experience of the legal market and know practising lawyers at all levels. This way they can be as helpful to the researcher as possible and save them time by sharing their insights into big cases and who acted on them and those practitioners involved.

How do you engage your referees?

•

•

Ask them! It sounds obvious but it is often overlooked. It is only polite, for heavens’ sake. If they engage on your behalf they are doing you a huge favour. And you can offer to reciprocate, both solicitors and barristers go through this process Make sure they are available.

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•

Don’t ask the busiest person at the bar to be a referee unless you know that they will prioritise you above everything else that comes into their inbox. Ditto the Managing Partner at a magic circle law firm. There is no point in nominating referees who are too busy to be available to the researcher, choose someone less senior in the same team who will engage.

Warm them up. It is worth reminding your referees just before the research starts that they have agreed to do this for you. You can check the research schedule or your marketing team will remind you.

Do include a few members of the bar as referees. Both directories appreciate peer reviews and it is incredibly rare for anyone to be rude, even if they have just been defeated heavily in court by you.

have ever done. Please bear the poor researcher in mind. They have thousands of these to read. Succinctly convey your strengths, experience and personality. It is not a pitch for a brief, it is just a summary of you for the reader. My favourite career summary is ten words long. It conveys the impression of a busy, efficient, skilled advocate.

When does the process start?

It is an annual process. If you look after your key relationships all year round you will easily work out who would be best as a referee for you.

And if you make notes on your cases as you go it will be easy to choose the best five.

What is happening now?

Your career summary

At the moment the research interviews for Chambers and Partners are in full swing. Legal 500’s IT team is busy deduping the thousands of referee spreadsheets they have received to prepare the research emails which will be sent out to referees within the next couple of weeks. Over the Summer the copywriting and editing takes place and the books will be published online in the Autumn.

The ideal career summary is 100 words long. It mentions highlights of your career, not every case you

The next deadline for UK Bar submissions is December 2021 but it really is a good idea to start the process

If you are asked to be a referee for someone it is a good idea to say yes. It will give you first-hand experience of how the process works and you will have done someone a favour.

now. If you start two days before the deadline you will not be popular with your marketing team.

What can you do to promote a directory ranking?

As previously mentioned, a directory ranking is a valuable marketing tool which can be shared on social media, on your set’s website, your own website and used in competitive tenders. You can even add a directory logo to the bottom of your email footer thereby re-enforcing the message that you are a leader in your field. It takes time and effort to achieve success in the legal directories so make sure you make the most of it.

Justine Edelman is a legal directories consultant and creator of Handyside.

Legal, a unique web-based system designed for barristers’ sets to streamline the directories submission process. Handyside.Legal is currently being used by over 830 barristers.

Please email justine@handyside.legal for more information or see www. handyside.legal.

Is it unreasonable to take a companion animal to the vet?

By Samuel March, Pupil Barrister, Advocates for Animals

I

magine that your family’s muchloved rescue cat, Pusskins, is hit by a negligent driver. You arrive home to find blood dripping from where she has dragged her broken body through the cat flap, leaving gruesome streaks up the stairs, across the landing and into the draw under your child’s bed. Horrified, you pull out the underbed drawer to find Pusskins, still-breathing, but badly mangled and bleeding profusely onto your child’s clothes.

Immediately, you rush the wounded animal to your local vet. The latter explains that Pusskins is in agonising pain, but that you have got her there just in time and that she can be saved.

Unfortunately, she needs a blood transfusion, X-rays and it will cost around £5,000 to amputate her crushed tail and repair her broken leg with metal rods.

Alternatively, for just £125, you can end Pusskins’s misery and euthanise her. Either option is already significantly in excess of Pusskins’s RSPCA adoption fee of £80, and her negligible market value.

What is the reasonable treatment to elect? And who is liable to pay for it?

As HHJ Godsmark QC explained in Orton v Lane (Chesterfield County Court, 30 June 2020), a case about a blind rescue dog from Romania, companion animals are property under the law:

‘Cases about animals do tend to invoke high levels of emotion but in the eyes of the law, animals are property, a chattel, just like a book.

Maybe it should not be so. Animals play a large part in people’s lives and in their emotions. Animals are intelligent, they breathe, they feel

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happiness, they feel pain. Maybe the law should recognise that formally but, at the moment, it does not.’

So, legally Pusskins is just damaged goods. The good news is that, providing the negligence of the driver can be established, there is, according to Clerk & Lindsell ‘no reason in principle or justice why there should not be liability’.

However, whilst such an action exists, it may not be worth pursuing. It is trite law that claimants seeking damages in tort have a duty to mitigate their loss. This duty to mitigate requires the claimant to take all reasonable steps to minimise their loss. Where it is cheaper to replace goods than repair them, damages will be limited to the cost of replacement.

Pusskins’ gory story is loosely based on my family cat, who was hit by a car in

2004 when I was about twelve years old (some parts of the story had to be modified because Pusskins lives in a different jurisdiction). Ultimately, my parents shelled out a small fortune in veterinary fees, thanks to which she is tailless but still alive today and in the golden years of a long and well-fed life. Had my parents lacked the means and sought to recover them from the driver in a UK court, the court might well have held them to have acted unreasonably. Spending thousands of pounds on veterinary fees when Pusskins could have been euthanised for a fraction of the price and a new cat adopted for £80 might well be considered a failure to mitigate loss.

Indeed, in the recent case of Pendragon v Coom [Cardiff Civil Justice Centre, 22 March 2021] a dog owner was held to have been unreasonable in paying veterinary bills rather than exercising her statutory rights to reject a “defective” dog, Lady, who suffered from hip dysplasia and diabetes insipidus. In a particularly concerning passage (see paragraph [80]) in Coom, HHJ Keyser QC considers

‘[the Claimant] says that she was attached to her pet. That may be so, but I do not accept that it made it reasonable to retain the animal at an expense that was disproportionate to its value and that she is most unlikely to have considered incurring without recourse to insurance and to a third party to pick up the bill.’

The idea that mitigation requires rejection or replacement must surely be unpalatable to many of the estimated 12 million (44% of) UK households living with companion animals, each one an irreplaceable unique and sentient being with its own personality and inherent value.

Pusskins is no outlier: most companion animals, other than pedigree breeds,

are pretty much financially worthless.

Yet the PDSA estimates that the average dog-adopting family will incur costs of £4,500 to £13,000 in upkeep during a dog’s lifetime. If these companion animals are really just “like a book”, then nearly half of UK families must be terribly fiscally irresponsible.

Now, whether courts in practice require execution as mitigation is another matter. Writing in 1995 of his experiences in such cases, Charles Foster (a practising barrister and a qualified veterinary surgeon) suggested that, in practice, this was not his experience, stating

“the courts are surprisingly compassionate: They may well say that although, financially, an iatrogenically injured poodle should be dead, reasonable mitigation of loss does not require its death.”

The relevant test involves an assessment of reasonableness, and this seems so obviously to be the reasonable, just, and fair conclusion.

However, it is never a foregone one in animal cases. It necessarily involves the court straying from the default position that an animal is “like a book”. Whatever reasoning is used to underpin this distinction is not clearly discernible from the judgments of the appellate courts. Because companion animal cases rarely exceed £10,000, the majority of such cases are heard in small claims track hearings, never to be reported. The result is that whilst these cases are regularly heard, each first-instance court is left to grapple in the dark, returning on each occasion to first principles and potentially coming to different conclusions. Whilst it is positive that, according to Foster, some do reach the above conclusion, it is unsatisfactory that the law does not formally recognise this as the correct one, and that there is no binding authority on the matter.

One justification for allowing damages that extend beyond the mere cost of replacement would exist in those cases where it can be shown that some additional head of loss, such as distress, would be suffered should the animal in question be allowed to die.

This said, practitioners enter similarly unchartered territory when assessing quantum of damages for distress in cases involving the death of companion animals. It is not inconceivable that a case involving damage to an animal could be brought within the Alcock criteria for pure psychiatric harm (Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310), especially given the Court of Appeal’s finding in Attia v British Gas plc [1988] QB 304 that a plaintiff can recover damages for nervous shock arising from damage or anticipated damage to property. Alternatively, depending on the facts of a particular case, damages for anxiety or mental distress in cases of trespass to property have been recoverable (Drane v Evangelou [1978] 1 WLR 455), which could arguably extend to intentional damage to animals. Finally, where there is a contract or bailment (such as in actions against pet shops, negligent vets or shelters), it is arguable that loss of amenity is a recoverable loss in companion animal cases for the same reasons such losses are recoverable in holiday cases (Jarvis v Swan Tours [1973] 1 All ER 71). Whilst all of the above are arguable, claimants will likely find themselves asking the small claims track to resolve tricky legal questions based on first principles rather than clearly established precedent.

Alexander Pope wrote “No louder shrieks to pitying heaven are cast, when husbands or lap-dogs breathe their last.” Whilst those who lose the former to another’s wrongdoing can rely on a well-established body of law to calculate compensation and an (albeit paltry) statutory award for bereavement, those who lose the latter find themselves cast into a legal void as they seek to shoehorn their loss into laws ultimately designed to deal with pecuniary loss and inanimate property. Whilst it may be many years before people entertain the idea that animals should not be treated as property at all, it is already the case that laws that treat living animals “like a book” are quite simply divorced from the experience and beliefs held by ordinary, reasonable people.

In the interim, the moral of this story is to ensure your companion animals have insurance.

Samuel March, Pupil Barrister, Advocates for Animals

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UK should take cue from EU’s five-year strategy to fight money laundering

By John Dobson, CEO, SmartSearch

T

he coronavirus pandemic has forced much by way of change in the way we live and work, most of which we will be happy to leave behind. But there have been some changes in the legal sector that arguably should have happened long ago.

Notably, moving to more non-contact, digital ways of working as face-to-face meetings became difficult, is a shift that could benefit the sector long term particularly in the battle to keep money laundering and financial fraud at bay.

At the same time, there is growing evidence that organised criminal gangs have also ‘gone digital’ to increase the scope of their nefarious activities, which have been on the rise exponentially over the past 12 months.

This is a particular issue for legal firms taking on new clients and carrying out all required due diligence.

Criminals looking to go undetected are highly skilled in the use of digital tools available to them to create sophisticated fake ID documents.

Now the European Commission has recognised this which is why it is setting out a five-year plan for law enforcement agencies and governments to work more closely together, to prevent criminal activity

such as human trafficking and money laundering.

According to the Commission, around 70% of criminal gangs operate in four or more EU countries with revenues amounting to 139 billion euros ($166 billion) in 2019, equivalent to 1% of EU gross domestic product. Most cynically at a time of global crisis, criminals have even exploited the coronavirus pandemic with sales of counterfeit medical products.

This has even extended to criminals attempting to sell more than one billion fake, or non-existent, vaccine doses.

This has prompted the Commission to state it would like more focus on bringing down these gangs and rounding up the ringleaders, as opposed to going after low-level offenders.

The plan, which will need approval from all EU members, would establish a new police cooperation code and negotiate a Europol-Interpol cooperation agreement.

Due to the move by organised crime to digital tools for their activities, the Commission will be reviewing guidance on data retention and even propose new methods for law enforcement agencies to crack encrypted data.

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The proposals would also see new anti-money laundering rules coming into force, as well as an update on rules for confiscating criminal profits. This is because just 1% of criminal assets are confiscated today, and a very small amount of money laundering detected, according to the Commission.

So, considering our new-found existence outside of the EU, the plans announced by the Commission would no longer extend across the channel to the UK. But it does raise some questions about what our own government is doing to combat the problem here at a strategic level, as criminals certainly don’t consider the border to be an issue.

The seedy depiction of human trafficking and money laundering on an industrial scale may be a favourite of television producers. But the fact is, organised crime gangs have come a long way from the stereotype of thickset men in balaclavas robbing banks. They are highly ‘skilled’ in using the digital resources available to carry out their crimes without leaving home, or even needing to be in the same country.

As if to underline this, the Commission suggested up to 80% of crimes now have a digital component. And they are targeting sectors such as legal,

the property market and related professional services up and down the country, with fake IDs and documents that would fool some of the most experienced eyes.

The Chancellor announced recently in his March Budget that HMRC would be getting new powers and resources to tackle money laundering in the UK, which is a welcome announcement.

There are a number of loopholes that need urgent attention, such as the lack of verification for registering a business at Companies House.

There are addresses all over London that are being used by criminals to register their fake businesses, with one revealed recently to being host to more than 1,000 firms.

It’s vital that we have a strategy in place which is based on cooperation with governments around the world, including the EU. And we need to be using the latest technology available to identify and pursue those responsible.

It’s obvious that the criminals are using all the tech available to them, therefore it only makes sense that law enforcement agencies trying to stop them are able to fight fire with fire.

using its collective power to stop it.

This is according to the keynote speech he made at the end of March to the AML Intelligence Global Action on Money Laundering conference, where he said banks, accountants, lawyers and others are all part of this problem.

According to Pleyer, it’s now time to shift from the view that anti-money laundering is a tick box exercise and to adopt a much more risk-led approach.

Although he was speaking globally about the issue, he could just as easily have been talking about the UK specifically, because even though we are well-known as the most heavily regulated country in the world when it comes to AML, enforcement is still a light touch.

In fact, the Financial Conduct Authority (FCA) has said they have increased surveillance over the past 12 months in response to the rise in the threat of money laundering. The executive director Mark Steward, speaking at the AML & ABC Forum 2021 said two of the FCA’s biggest sanctions in the last year related to failures to address financial crime and AML risks.

But reform has to come from the top, and any strategy to tackle the increasing threat of money laundering has to include a shift to electronic verification when taking on new customers.

It is no small coincidence that the leading authorities both globally and, in the UK, have come out in recent weeks to remind the market that dealing with money laundering and financial crime should be a top priority, after a year of distraction and disruption caused by the pandemic.

In fact, the head of the Financial Action Task Force, Marcus Pleyer, recently took aim at the AML sector suggesting criminals are ‘getting away with it’, because the FinCrime industry is not

The question is whether the UK government will also recognise that it should be a top priority and that there needs to be a wholesale shift away from checking hard copy documents.

There is no longer any need to even receive passports, driving licenses and those kinds of documents to verify ID. For the vast majority of everyday business, using the digital platforms that are available today, all that is required for ID verification is a name and address, even date of birth is optional.

An online platform will run the details through a global data search to bring back results for an individual in less than two seconds, and for a business in about three minutes.

The latest technology combines credit reference data, biometric facial recognition, and digital fraud checks.

By triple-checking these different sources of information a unique ‘composite digital identity’ is produced that is virtually impossible to fake. All this can be done online, with no need for in-person meetings, face coverings or hard copies of documents.

As we move further out of lockdown and back to what we hope is some kind of normal, businesses need to act fast to make the switch and the Government should take its cue from the EU in this matter and develop a clear strategy of its own.

We may be entering a new era of non-EU existence, but that should not mean an end to cooperation with our European partners in tackling serious organised crime, which operates regardless of political and geographical boundaries.

John Dobson is founder and CEO of SmartSearch

Coercive and Controlling Behaviour

By Molly Mifsud, Barrister, College Chambers

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ioneered by Professor Evan Stark, controlling and coercive behaviour recognised arguable for the first time that not all domestic abuse is physical, it is not always carried out by one person and they need not be their partner.

Often in these cases the complainant, loses their autonomy or so feels undermined they become dependent on the perpetrator. Their personhood and agency are often lost. They begin to morph into what the perpetrator wishes them to.

In November 2018 Mumsnet, Women’s Aid and the Surrey Police published a

The words “coercive and controlling behaviour” are words many a criminal and family lawyer will fear, in part as the concept is not necessarily well understood. However, strip it back and think logically about what coercive and controlling behaviour actually is, and I believe the concept should not be feared.

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video called, “Walking on Eggshells” discussing coercive control. Many complainants will be unaware of what is happening to them and/or blame themselves for the perpetrator’s behaviour. Perpetrators dictate the boundaries beyond what can ordinarily be expected. For example, they may dictate what to wear, how to behave, how to speak and so on.

They may criticise for not following instructions or when they act of their own volition. Signals or indicators may be used to show disapproval or warn the complainant that there will be a consequence for their actions.

However, and importantly, they will not necessarily be controlling all the time and things will not necessarily be “bad” all the time. This must NOT be forgotten particularly for those who are trying to prove the behaviour and for those defending it is not necessarily and easy scored point or get out of jail free card.

Similarly, we must remember that this usually happens behind closed doors and so a lack of independent witnesses or a string of witnesses saying that whenever they saw the complainant, they were their usual happy self will not mean the offence is not proven. Coercive control will not necessarily be obvious to the outside world. A perpetrator will be aware of the need for subtly to continue to have control over their complainant and so often they will portray an entirely different character when in public or the presence of others just as a complainant may.

Section 76 of the Serious Crime Act 2015 (SCA 2015) criminalised coercive and controlling behaviour carrying a maximum sentence of 5 years’ imprisonment and/or a fine if convicted on indictment or a sentence of up to 12 months’ imprisonment and/or a fine if the conviction is summary. This is supported by section 77 and the accompanying Statutory Guidance which aids the Police with handling and investigate such behaviour and I would suggest all three are key reading for anyone dealing with coercive control even in the family court.

Under the statute no definition is given to coercive or controlling behaviour.

However, they were subsequently defined and exemplified in the statutory guidance published in December 2015.

Coercive behaviour is defined as, “a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.”

This differs to controlling behaviour which is, “a continuing act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is

used to harm, punish, or frighten their victim.”

Professor Stark has suggested that coercion is transparent and aims to elicit an immediate response and controlling behaviour ‘often is literally “hidden behind closed doors”’; it aims to build a response over time. Often both will be exercised, and it is not the case that an act will fall into the same category in every case given that categorisation is based on aims.

The tribunal do not necessarily need to appreciate the difference, but it can help you to develop your case theory and spot and understand the motive of the perpetrator which will be vital particularly where it is coercive behaviour.

Family practitioners may find it helpful to approach their case as though they are proving s76 SCA on the balance of probabilities. The relatively limited case law on this topic coming from the family court suggests the courts are at least mindful of an considering the offence and what the definitions set out in it are. Putting it simply section 76 SCA 2015 requires: a. the complainant and perpetrator to be ‘personally connected - in an intimate relationship or living together as ‘members of the same family, or’ having ‘been in an intimate personal relationship.’’

Essentially, they must have been in the same household. b. The use coercive control must be, ‘repeatedly or continuously’. c. For there to be ‘a serious effect on B [the complainant].’ As set out in section 76(4) meaning that ‘on at least two occasions’ the complainant has feared the use of ‘violence’ against them or that it has led to ‘serious alarm or distress which has a substantial effect on B’s usual day-to-day activities.’ It is stressed throughout the guidance that the context and wider picture must be considered. Events should not be looked at in isolation and timelines should be considered in a decision as to whether there is a continuous or repeated pattern and whether there was an effect. Many will look at police involvement. For the defence this is easy, it can be said they weren’t that scared of the perpetrator particularly where incidents were physical. Section 3 of the guidance issued has made it clear that it is not necessary for the police to have been called. This is clearly useful for the person seeking to prove the behaviour. In fact, it may go further than the obvious benefit in that it potentially allows the complainant an opportunity to show just how control and coerced they were. It may be that they were so scared or so controlled, coerced or involved that they couldn’t speak out. You may be able to elicit this in evidence and asking them why they didn’t call the police is a simple yet effective way of doing so.

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d. Finally, to establish that an offence was committed it must be shown that the alleged perpetrator, ‘knows or ought to know that the behaviour will have a serious effect on B.’ This is an objective test asking whether the reasonable person would have known that it would have a serious effect on the complainant. What is important is that the test is what the reasonable person with the ‘same information’ as the alleged perpetrator would believe or know. Hence, any sensitivities or perception difficulties for example which the complainant may have, should be considered and if you are seeking to prove the offence you need to draw out those sensitives and be aware of them. You may not need to put individual comments or behaviours to the perpetrator if they are part of a series, you may wish to consider putting the overarching idea to them. For example, you could say, “comments like “you’re fat”, “you need to lose weight” and “you should change that dress is not flattering on a figure like yours” are going to make the complainant feel fat and affect her self-esteem, aren’t they”. To do this will need to be aware of and think about the themes.

There is a defence to section 76 SCA 2015 offences. This is that at the time of the coercive or controlling behaviour the accused was acting in the best interests of the complainant and that in all the circumstances it was objectively reasonable for them to act in this way.

However, in criminal proceedings if the prosecution suggests there is coercive control due to a fear of violence the defence becomes unavailable. Guidance on this matter is limited and there is a lack of case law to help understand in what contexts this defence may succeed. The reality of it is that the defence will try and show a need for the perpetrator to take control of the complainant’s life and show that they were accepting or agreed on some level.

Essentially, they would undermine the impact element and say they were acting in the complainant’s best interests. Two birds with one stone.

Sensitivities and context are going to be all important and will need to be laid out clearly to the tribunal if you are going to succeed on either side.

As with any matter the specific facts of the case are going to be the be all and end all. However, in coercive control there is a need to think about the theory and to bring it to the court’s attention. Understanding the theory will help to understand the specific facts and determine them. Until we can do that, I think we will continue to see a fear of these cases and a reluctance to make findings.

Molly Mifsud, College Chambers.

The Legal Aid Census – there’s strength in numbers

By Rohini Teather, head of parliamentary affairs at the Legal Aid Practitioners Group

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t’s been a demoralising few years in legal aid policy. After a series of delays the Ministry of Justice (MOJ) commenced a formal process to the long-awaited LASPO PostImplementation Review (PIR), meeting extensively with practitioners from across the sector and reading the vast swathes of post LASPO literature and evidence amassed on their behalf. There was a huge amount of engagement with and sector buy-in and perhaps a certain amount of hope.

That issues would be recognised and things might improve. LAPG held a conference at the time to bring together practitioners from the coalface from all corners of the sector to give their evidence to the civil servants in charge of the review. Over 200 practitioners came together to share their lived experience and I was struck, as I often am, by the vastness of this sector.

Too often we consider ourselves as solicitors, or barristers, family lawyers or criminal defence practitioners and not part of a bigger whole. Those with a vocation to make society better.

To champion the vulnerable and to give a voice to those in need. Activist Lawyers, without any of the negative political connotations that the term carries with it.

You’ll know by now the conclusion of this particular tale. In 2019 the PIR deemed the legal aid market to be “operating at sufficient levels to meet demand” adding that “more research is required to determine the long-term sustainability of the profession”.1Over and over again we have been told of the absence of government systems to collect reliable, comprehensive data. The onus is thrown back onto beleaguered providers to gather the information that the government lack to truly understand client need and the viability of ‘the market’. Whilst some information on practitioners and organisations has since been shared

by The Law Society, Bar Council and CPS (resulting in the publication of a data compendium about criminal legal aid2, this research by the MoJ hasn’t been forthcoming. Nor does it appear that there is any intention of looking at the legal aid system as a whole.

A marketplace of need, supply and demand.

This time last year, we decided that something different was needed. We wanted evidence that viewed the crime and civil legal aid ecosystem as a whole. Data on every single legal aid practitioner in England and Wales. Every barrister, solicitor, legal executive, paralegal, clerk, caseworker and manager working in publicly

funded law. All of those aspiring to join the profession and those who have made the decision to leave it. We want to reach every one of them to build a comprehensive picture of what life on the legal aid frontline is like; to gather demographic information but also seek to understand issues like the connection between fee levels and commercial viability, retention and succession planning. The path that each practitioner took into the profession, the working conditions in practice and their intentions regarding it. We need to know who the people are who make up the provider base and what it will look like in the years to come.

After a year of planning we have now launched the Legal Aid Census – the largest ever cross-sector research project about the legal aid workforce.

We have thrown our own resources into this because having robust, irrefutable data about who is doing legal aid and the challenges that that entails seems now to be the only way to convince government of the need for major reforms and significant investment. We are grateful for backing from The Legal Education Foundation and from Barings Foundation.

Critically, we have assembled a team of independent researchers from the universities of Cardiff, Newcastle and UCL who have designed the research instrument and will analyse the results.

The census will run from 12 April to 11 June and the academic team will then spend the summer analysing the data before reporting in early autumn.

This will be a crucial element of our response to the Independent Review

of Criminal Legal Aid and to influence the MOJ’s incipient review of the sustainability of civil and family legal aid. It is closely aligned to the ongoing All-Party Parliamentary Group’s Westminster Commission on the Sustainability of Legal Aid. Momentum for positive change is building as the sector continues to suffer from decades of underinvestment and the brutal consequences of the pandemic. There may even be political appetite as society and the government seek to rebuild. The MOJ is aware that many providers are on their knees and that those needing legal help are routinely falling through the cracks.

For some time now we have had a ministerial team that understand the issues. But we do not want to be undermined by a lack of robust data as has befallen so many campaigns in the past. So we need everyone across the sector to come together once more in support of this initiative. If you are a legal aid lawyer or support someone who is, please participate in the census and provide us with the data we need to convince the government to act now to save legal aid. Please give us your numbers so that we can come together and be counted.

Rohini Teather is head of parliamentary affairs at the Legal Aid Practitioners Group ---------https://www.gov.uk/government/ publications/post-implementation-review-ofpart-1-of-laspo, para 816, p195 2 https://www.gov.uk/government/groups/ independent-review-of-criminal-legal-aid 1

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