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 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

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. “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. “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.”

Safety of citizens

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.

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.

“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.

“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 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 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.

Co-author, Dr Penny Cooper, said: “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

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 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?”

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. “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

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

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 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.”

About the reviewers

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. 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.

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.

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.

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

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.

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.

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. 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.”

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

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extremely timely as the need to include threats to disclose intimate the requirement effected by Articles p.1 transform how cases involving images and the offence of controlling or 4(3) and 59 that support for victims allegations of domestic abuse coercive behaviour can be committed of domestic abuse is also extended has become increasingly urgent post separation. These are all positive to migrant women. Acceptance of and efforts to answer that need have steps to be welcomed. this requirement would have eased been gathering momentum over recent ratification of the Convention at a time years. In June last year the MOJ’s Antithetically, there are some when the uK is seeking to reassert its Independent Panel (‘Harm Panel’) significant missed opportunities. position on the global stage and assert published its final report “Assessing Significantly, the Commons stood its human rights credentials. This is Risk of Harm to Children and Parents firm in rejecting the lords’ efforts indeed a missed opportunity.in Private law Children Cases”5 and to extend the so-called ‘householder on 30th March this year the Court defence’ to victims of domestic abuse In conclusion therefore it is tempting of Appeal issued the first landmark on the stated basis that the defence simply to be critical and say that the judgment in this field since 20006 when of duress is sufficient to address this Act misses the lofty ambitions espoused its decision in the conjoined appeals issue. This, in the face of evidence by several key politicians and in doing in Re H-n [2021] eWCA Civ 4487 gathered by the Centre for Women’s so it disappoints in so many ways. was handed down. Consequently, the Justice illustrating that the defence is However, the fact that we have a passage of this legislation provided a not consistently effective. A feminist Domestic Abuse Act at all, and one that most timely opportunity to contribute legal critique would argue that the sets out a comprehensive definition to transforming for the better how failure to extend this defence reflects of ‘domestic abuse’ for the first time, the family (and criminal) jurisdiction the structural gendered discrimination makes it deserving of the adjective manage such cases. that remains inherent in the criminal ‘landmark.’ Indeed, there is much to justice system. Indeed, it could be welcome in this new Act and quite how The Harm Panel identified ‘four argued that deep-seated gender effective it is will, as ever, depend very overarching barriers to the family discrimination and stereotypes, if not much on those of us tasked to bring court’s ability to respond consistently outright patriarchy, is the crux of the it to life and give it effect. Here’s to and effectively to domestic abuse decision not to include misogyny, either improving the way in which we deal and other serious offences namely as a crime or as a means to categorise with cases of alleged domestic abuse resource constraints, the adversarial and monitor offending. equally for the betterment of us all, especially nature of family proceedings, the disappointing is the decision not to the survivors. family court’s apparent ‘pro-contact create a so-called register of stalkers culture’ and, the way in which the and serial perpetrators modelled on Celestine Greenwood, barrister, different jurisdictions and agencies the Violent and Sex Offender Register exchange Chamberswork in silos. A fundamental issue (Visor) which holds information about is the difficulty in securing legal aid those cautioned, convicted or released --------------for such cases and the consequences from prison for a sexual offence against of the same. As a result of the legal children and adults. Aid, Sentencing and Punishment of Offenders Act 2021 (lASPO) legal aid Applying a human rights framework has been means-tested in such cases to the Act results in further effectively denying many adequate disappointment. Despite valiant and access to justice. In turn this had led sustained lobbying efforts by many to litigants in person being a common groups, the Commons rejected the feature of these cases. A welcome lords’ amendments that would have change which will be effected by extended the protections provided the Act is a statutory prohibition on for by the Act to migrant victims unrepresented alleged perpetrators of domestic violence who have no cross-examining the alleged victim. recourse to public funds. On 14th However, despite the advocacy of the June 2019 the Joint Committee Bar Council and others, the opportunity for the Draft Domestic Abuse Bill to reverse the swingeing effects of published a report outlining their the lASPO 2021 abuse, was ignored. recommendations for the Bill. These Similarly, the Bill failed to grasp the included recommendations aimed opportunity to tackle the apparent ‘pro at addressing the needs of migrant contact culture’ of the family court by women who have no recourse to public reversing the presumption in favour funds. The Home Office conducted a of contact enshrined in law by section review and published its findings in 1(2A) of the Children Act 19898 and July 2020. In a response that can only case law. Had statutory reversal of that be described as feeble, the Government presumption been a step too far, the claimed, despite that review being Bill could have tempered that culture comprehensive, that a pilot scheme to by creating a statutory presumption “help gather the data that is needed that in cases where domestic abuse to develop sustainable solutions for all and harm to the child(ren) is proved migrant victims of domestic abuse over direct contact is contraindicated. the long-term”10 is required. Within the criminal jurisdiction the The refusal to include such migrant Act similarly offers some progress victims is clearly prima facie whilst simultaneously eschewing the discriminatory. lamentably, in opportunity to deliver other statutory adopting this stance the Government change and swerves the opportunity to has further postponed the opportunity, embed structural change in statute. On which has been in existence since the plus side, efforts to create a specific 2012, to ratify the Istanbul Convention. offence in respect of strangulation The Convention is recognised globally have succeeded; this will bring solace as the ‘gold standard’ on addressing to many and, if the experience in violence against women and girls. new Zealand is a marker, will “help The uK signed the Convention at the police (and others) identify this critical first opportunity in 2012 but since risk factor in the overall response then has been dragging its feet in to domestic abuse”9. Further, the terms of ratification. A key sticking ‘revenge porn’ offence is extended to point in ratifying the Convention is

1https://www.bbc.co.uk/news/ukpolitics-49910926 2https://www.robertbuckland.co.uk/news/ justice-secretary-robert-buckland-says-newlaws-including-non-fatal-strangulation-lawwill

3https://www.gov.uk/government/ publications/domestic-abuse-bill2020-letter-from-baroness-williamsto-peers-following-second-reading/ letter-from-baroness-williams-to-peersaccessible-version

4https://bills.parliament.uk/bills/2709 5https://www.gov.uk/government/ consultations/assessing-risk-of-harmto-children-and-parents-in-private-lawchildren-cases

6Re 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

7https://www.judiciary.uk/wp-content/ uploads/2021/03/H-n-and-Others-childrenjudgment-1.pdf 8https://www.legislation.gov.uk/ ukpga/1989/41/section/1 9https://www.theyworkforyou.com/ pbc/2019-21/Domestic_Abuse_Bill/100_2020-06-16a.329.3

10https://assets.publishing.service.gov. uk/government/uploads/system/uploads/ attachment_data/file/897472/Migrant_ Victims_of_Domestic_Abuse_-_Review_ Findings_v.3._FInAl.pdf

countries are derived from or outcomes may depend on the local p.1 maintain a strong link to english sensibilities of a judge or jury in a common law principles. english different country. law is well understood in these countries and continues to be followed Further whilst continental contracts are (in various degrees) to this day. much shorter, this is achieved by lifting Consequently, when those countries are set terms out of statutes and codes. involved in international transactions, This limits the flexibility of the contract english law often became a natural and and presupposes a pre-existing reassuringly familiar choice for parties knowledge of that country’s civil code to those agreements. and statutory references alluded to. Whilst this might have started with under an english law contract, parties the Commonwealth, english contract are encouraged to set out all the terms parties’ freedom to contract. This law has increasingly being deployed they want to apply. The upside with this gives the businessmen not merely in international contracts in civil law is that if there is a dispute, the parties greater flexibility but a greater sense of countries for cross border deals. have a single handbook they can look certainty as to how his contract will be to remind them what they agreed interpreted by the court. The certainty and convenience of would happen in that eventuality. Put english contract law has proved a shortly, it does what it says on the tin. Whilst english law place underpinning useful selling point. international contracts looks By doing this, it has also allowed reassuringly safe, there is no reason for One important difference between parties greater flexibility in designing complacency. The economic benefits english law and Code Civile countries a deal that accurately fits their needs of the success of our legal services is that, in commercial contracts, there’s and manages the risk and exposure if market has not been going unnoticed. no implied overarching duty of good things go wrong. This has seen english Thus, we see increasing numbers of faith. This may impute obligations of courts being amenable to permitting foreign lawyers training in english disclosure or requiring reasonable and enforcing limitation of liability contract law so that they can offer that diligence in the performance of causes, waivers of consequential loss, additional service to their clients. In contractual obligations, while fixed damages clauses, time, and europe, both eire and luxembourg observing moral and ethical behaviour procedural bars on claims, “knock for have positioned themselves as standards. knock” indemnities and “pay when contenders to challenge the uK’s paid” clauses. market share. While the idea of good faith sounds on its face attractive, it injects an element underpinning this is an assumption of uncertainty as to the standard of that the businessmen will know better behaviour expected from the parties what a good bargain for them is than to the agreement. This may be acutely any legislator or judge. Reassuringly felt in cross border transactions, where for parties, our courts have long held cultural differences often exist, and a deep-set aversion to interfering with

By Professor Mark Watson-Gandy, barrister

Mark Watson-Gandy is the author of Simple Contract law: A brief introduction to english Contract law

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

Harry Travers, partner, and Alex Swan, senior associate, of BCl Solicitors llP

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

In 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, 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”). 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?

Systemic problems?

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

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. 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.

Lessons Learnt from a Pupillage during Covid-19

By Callum Ross, Barrister, Chavasse Court Chambers

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. 1The 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 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. 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: 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. not only have I learnt from these experiences, but it has opened doors where further opportunities 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.

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. 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. 4. enjoy: I have done all I can over the last

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.

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

1https://www.bbc.co.uk/news/uk-56491532

By Danae larham, Pupil Barrister, Cornwall Street Barristers

As 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 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

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

Throughout 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 reMeanwhile 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.

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 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

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.

Background – Schrems I 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.

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

Schrems II

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 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.

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

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. “BReXIT”

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.

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.

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 Conclusion

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. 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.

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. 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

1https://eur-lex.europa.eu/legal-content/en/TXT/?uri=uriserv%3AOJ.l_.2016.207.01.0001.01.enG 2https://eur-lex.europa.eu/legal-content/en/ TXT/?uri=CeleX%3A32010D0087 3https://eur-lex.europa.eu/legal-content/en/ TXT/?uri=celex:12012P/TXT 4https://epic.org/privacy/intl/ schrems/20160524-DPC-Draft-Decision.pdf 5https://eur-lex.europa.eu/eli/reg/2016/679/ oj 6See also: https://commonslibrary.parliament.uk/research-briefings/cbp-8375/ 7https://ico.org.uk/for-organisations/ guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/international-transfers-after-uk-exit/

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. 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.

A lawyer’s perspective

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

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

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?

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.

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