56 minute read
In Defence of Remote Working By Alex Lawson, barrister, 33 Bedford Row
from Barmag issu89
In Defence of Remote Working
By Alex lawson, barrister, 33 Bedford Row
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lockdown 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 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
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.
1law 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 2https://twitter.com/thecriminalbar/status/992073919862595587 3https://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
When 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.
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. 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; 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. 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.
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 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. 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
Legal implications of EU AstraZeneca vaccine dispute and how the dispute could have been avoided
By Jade Brooks, associate, Blaser Mills law
The 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. 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.
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 denies this.
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.
What did AZ agree to do?
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 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
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?
northern Ireland’s first minister, Arlene Foster, branded the triggering of Article 16 “an incredible act of hostility”. The Commission has acknowledged that it 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
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
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 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 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.
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’.
The legal directories: Why bother?
By Justine edelman, legal directories consultant and creator of Handyside.legal
Being 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.
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. 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.
Your career summary
The ideal career summary is 100 words long. It mentions highlights of your career, not every case 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?
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 next deadline for uK Bar submissions is December 2021 but it really is a good idea to start the process 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?
Imagine 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 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 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.
UK should take cue from EU’s five-year strategy to fight money laundering
By John Dobson, CeO, SmartSearch
The 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. 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. 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.
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 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.
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. 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.
Coercive and Controlling Behaviour
By Molly Mifsud, Barrister, College Chambers
Pioneered 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 John Dobson is founder and CeO of SmartSearch
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.
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 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. 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
It’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.
1https://www.gov.uk/government/ publications/post-implementation-review-ofpart-1-of-laspo, para 816, p195 2https://www.gov.uk/government/groups/ independent-review-of-criminal-legal-aid
