Barrister mag issue 90

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#90

ESSENTIAL READING FOR BARRISTERS

EST. 1999

1st October - 21st December 2021 Michaelmas Term Issue

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Retention of Women at Bar – one step forward and two steps back?

As of 1 December 2020, figures collected by the Bar Standards Board in the report 2020 Diversity at the Bar, showed that female barristers constituted around 38.2% of the practising Bar. That figure represented an increase of around 2.3% since 20151. The number of entrants to our profession are relatively equal in terms of gender. Yet, women still only make up 16.8% of QCs, and figures recently examined by the BSB reveal that significantly more women still leave the profession indefinitely than their male counterparts.

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career continues to be a greater difficulty than it is for their male counterparts.

The Chair of the Bar Council, Derek Sweeting, responded to the report;

Supreme Court clarifies calculation of limitation periods in midnight deadline cases

By Raj Arumugam, Barrister, 5 Stone Buildings

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In their report published in July 2021, “Trends in demographics and retention at the Bar 1990 – 2020” the Bar Standards Board has set out to examine patterns of retention, broken down by gender, ethnicity and age, and to consider whether there are key moments in a barrister’s career when they are likely to leave the Bar. The report demonstrated that the retention of women as they progress to the senior junior stages of their

Lawyers as Healers of Social Conflict

economic modelling or blueprints that can readily guide us on how to move forward.

We are all trying to improvise and respond to new data – almost daily.

Disruption and our changing landscape

The future is uncertain in terms of the lasting impact of the above issues:

We have no processes or precedents for the variety of issues the world is facing. No

ISSN 1468-926X

Features

“This is an important report with findings that will help inform Jacqueline Thomas QC, the Bar Council’s Joint Head of Chambers, future support for Spire Barristers the profession.

The statistics show a Bar that is continuing to grow, with the number of practising barristers each year growing substantially over the last three decades, and the proportion of barristers leaving in the first 10 years p.6 of their career decreasing. The news that the proportion of female or ethnic

We are at a tipping point in our society, both here in the UK and elsewhere (if not everywhere) in the world. The last 18 months have seen the impact of Covid-19 and the Black Lives Matter movement challenging the systemic discrimination imbedded in so much of Western society.

We have been witness to countries ravaged by heatwaves, wildfires, floods, and water shortages – all during this northern hemisphere summer. Humanitarian crises are everywhere: South Sudan, Nigeria, Mozambique, Ethiopian, Syria to name only a few, and of course now the attention of the world has turned to Afghanistan again.

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a. the effect of the Covid 19 virus on our physical and mental health and the global economy; b. the depth and permanence of changes made in response to the protests in America and around the world - protests that now have such universal support they cannot be ignored by those in positions of privilege and power; c. the reality of climate change and the almost daily evidence of the significant long-term impact it will have on our lives and well-being; p.7

The Cyber Violence Crisis - why are women still the primary victims?

By Christina Warner, barrister, Goldsmith Chambers

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Transition – 10 years on

By Robin Moira White, barrister, Old Square Chambers

role of machine translation 20 The in the legal sector

By Alan White, Business Development Director at The Translation People

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News New report shows impact of the pandemic on those training for the Bar 46% of Brits Don’t Understand Legal Aid or how to get Support

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

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Bar Council warns against rising use of ‘get out of jail free cards’ to avoid courts

“Greater reliance on community resolutions for more serious offences can send the wrong message to the public and victims of crime – that this is a ‘get out of jail free card’. Whilst out of court disposals can be effective in reducing reoffending for minor offences, they must not be seen simply as an alternative to court, especially for sex offences or other serious crimes.

Criminals must be dealt with in a manner that reflects the seriousness of their offending, otherwise, the public will lose confidence in the criminal justice system.

Responding to the latest quarterly criminal justice statistics, which show decrease in the number of prosecutions, but a worrying 16% increase in the use of community resolution orders, Derek Sweeting QC, Chair of the Bar Council, said:

“With the current backlog in the criminal courts there is a risk that out of court measures will be seen as a way to relieve pressure on the system.

But public confidence will only be maintained by long-term investment, including more court staff and enough courts to hear cases ”

the case for withdrawing video from the equation altogether, thereby allowing decisions to be made based purely on speech and lessening the potential impact of unconscious bias.

Remote hearings hold the line but have hidden psychological impact, report shows

Remote hearings and tribunals have exceeded expectations since the start of the pandemic and are here to stay in some form, but they had an often-unseen psychological impact, according to a new report by global consulting firm Berkeley Research Group (BRG).

The report, which consulted with expert witnesses, lawyers and psychologists located in jurisdictions around the world, focused on the psychological impact of conducting proceedings remotely and the extent to which these had affected the outcome of hearings and tribunals.

The majority of those interviewed for the report acknowledged that the virtual courtroom setting, while enabling the arbitration system to continue largely unimpeded, had a psychological impact, both positive

and negative, to varying degrees.

Expert witnesses responded positively to the additional virtual barrier and familiar surroundings during cross-examination as traditional techniques deployed by lawyers proved less effective.

However, some found themselves resorting to imagining the traditional physical environment to prepare mentally for each question and maintain focus and avoid being lulled into a false sense of security.

The psychologist perspective went further, highlighting the subliminal processes that can kick in and sway decisionmaking, such as associating the frustration of technical issues with those providing evidence or spending more of an arbitrator’s mental capacity on managing an unnatural situation, rather than carefully considering all aspects of the evidence provided. It was noted that decisions were being reached considerably more quickly compared to in-person hearings, although with many cases still awaiting judgement, a clearer picture of the impact may appear over time.

A legal psychologist also made

Commenting on the findings, Daniel Ryan, a managing director and expert witness at BRG, said: “It was interesting to reflect on the different experiences of remote hearings over the past eighteen months as part of this study, and our findings provoke further thought. As in other aspects of our professional lives during the Covid-19 era, resilience, innovation and flexibility have meant hearings could continue efficiently and effectively around the world. Given that remote and hybrid forums may remain a feature for courts and tribunals indefinitely, some of the less obvious—and subconscious— aspects of the ways we behave in these settings are very useful to consider”.

Chiann Bao, report participant and a member of Arbitration Chambers in Hong Kong, added: “Overall, my experience has been great—better than expected. I’ve had a number of [remote] hearings, and by and large they are working well. As a technique to save time and cost, I imagine the use of virtual technology will continue for certain aspects of the arbitral proceedings post-pandemic”.

A copy of the full report can be obtained from Berkeley Research Group BRG

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NEWS

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New report shows impact of the pandemic on those training for the Bar The Bar Standards Board has published the seventh and final annual edition of its statistical information relating to student performance on the Bar Professional Training Course (BPTC). As the report has shown in previous years, training for the Bar remains highly competitive.

The report includes information about students who enrolled in the 2019-20 academic year, in total and by provider, as well as those who enrolled on the BPTC in the preceding two academic years. It also provides information on demographics and results for those who enrolled on the BPTC between 2017-18 and 2019-20, and information on those seeking pupillage who graduated from the BPTC between 2015-16 and 201920. This provides a wider timeframe in which to see the proportion of graduates who began pupillage within five years of completing the course.

The health emergency had an impact on both the proportion of students completing the BTPC in 2019-20 and on the proportion of BPTC graduates from the 2019-20 intake proceeding to pupillage. Of students enrolling on the BPTC in 2019-20, 18% less completed the course in that year compared with the year before. Of UK/EU graduates from the course in 2019-20, only 10% began pupillage in 2020-21 compared to 23% of the 2018-19 cohort who began pupillage in 2019-20. This reflects the fall of

35% in pupillage places offered in the 2020 calendar year reported by the BSB earlier this year.

The other key findings from the report are: •

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1,685 students enrolled on the BPTC in 2019-20, a decrease of 68 students compared to 201819, but an increase of 66 over the number enrolled in 2017-18; almost half of students (46%) who enrolled on the BPTC in 2019-20 were overseas (nonUK/EU) domiciled, a similar proportion as in 2018-19 when they accounted for 47% of enrolled students; the percentage of female BPTC students has increased from 52.3 per cent in 2011-12 to 57.8 per cent in 2019-20; of the 95% who provided information on their ethnicity, the percentage of UK/EU domiciled students from a minority ethnic group was 35% in 2019-20. This was down by around five percentage points compared to 2018-19, around one percentage point compared to 2017-18, and was at the lowest level since 2015-16; of the UK/EU domiciled BPTC graduates, 39.5% of those who enrolled on the course from 2015 to 2019 had started pupillage

by March 2021. This figure increases to around 49 per cent when looking at those enrolled from 2015 to 2018 only, as it can take time for more recent

Bar Council, BHRC and Law Society urge UK Government to offer asylum to legal professionals in Afghanistan The Bar Council, the Bar Human Rights Committee of England and Wales, and the Law Society of England and Wales have issued a joint statement on the situation for legal professionals in Afghanistan, with particular concern for female judges in the country.

“The Bar Council, the Bar Human

Rights Committee of England and Wales, and the Law Society of England and Wales are gravely concerned about the situation in Afghanistan and the fate of all those who are working in the justice system of Afghanistan who are now facing a perilous future as the Taliban have taken power.

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graduates to gain pupillage; of UK/EU-domiciled BPTC graduates who enrolled from 2015 to 2019 and went on to secure pupillage, 55% were female; and when controlling for first degree class and BPTC grade, UK/EU BPTC graduates from minority ethnic backgrounds who enrolled on the course from 2015 to 2019 were less likely to have commenced pupillage than those from white backgrounds. For example, of UK/EU domiciled BPTC graduates with an upper-second class degree and Very Competent overall BPTC grade, 41 per cent from White backgrounds had commenced pupillage, compared to around 23 per cent of those from a minority ethnic background with the same degree class/BPTC grade.

2019-20 was the last year of the old BPTC course and from next year, reporting will be undertaken on the new vocational training courses which began in 2020.

BSB Director of Strategy and Policy, Ewen MacLeod, said: “The annual publication of these statistics gives us up-to-date data. This year’s report enables us to see clearly the impact which the health emergency had on those students starting a BPTC in 2019. We continue to work closely with the profession to make sure pupillage places remain available as the country recovers from the effects of lockdown.”

You can view the full report on the BSB website. https://www.barstandardsboard.org. uk/uploads/assets/e7d22219-ffb24f36-a206b21736e2d2d8/BPTC-KeyStatistics-Report-2021-All-parts.pdf

We are extremely worried about the situation of at least 250 women judges in the country who we consider to be at particular risk. We urge the UK government not to abandon these courageous defenders of the rule of law and – in liaison with its international allies – to offer evacuation and safety and asylum in the UK to those women judges, their families, and other members of the legal profession who are in serious danger.”

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46% of Brits Don’t Understand Legal Aid or how to get Support One of the most deprived regions in England has the highest legal aid expenditure

New research by specialist lawyers Bolt Burdon Kemp, has uncovered the key issues that are preventing people in the UK from getting proper access to legal services, with findings suggesting that: • •

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Only 27% of the British population was eligible for legal aid in 2007. Further cuts since then have exacerbated that number.

The regions that have had the highest legal aid expenditure across the years include London, Yorkshire and the Humber, North West England and the West Midlands.

72% of legal aid clients are from BAME backgrounds; they’ll be the worst affected if legal aid cuts continue.

46% of the British public don’t understand the legal aid system or how to get support and 51% say there are too many barriers to legal aid funding.

expenditure is the highest.

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A decade without review: Inequality in the legal aid system

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Only 27% of the British population was eligible for legal aid in 2007. Further cuts since then have exacerbated that number.

The regions that have had the highest legal aid expenditure across the years include London, Yorkshire and the Humber, North West England and the West Midlands.

72% of legal aid clients are from BAME backgrounds; they’ll be the worst affected if legal aid cuts continue.

46% of the British public don’t understand the legal aid system or how to get support.

The legal aid system has been decimated over the past 10 years. And, the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) in 2013 meant vast swathes of people lost access to legal aid. The legal aid system needs urgent reassessment and reform. Otherwise, as new research from specialist lawyers Bolt Burdon Kemp makes clear, it will be the most vulnerable and disadvantaged groups in society that’ll be the hardest hit. Review the findings below.

The most deprived areas of the UK need the most legal aid In 1949, 80% of British people had access to free or affordable legal help. By 2007, this had reduced to only 27%, and in 2013, austerity measures cut this even further.

Who is most likely to need legal aid? It’s probably no surprise that the regions in England with the highest legal aid expenditure are also the most deprived Below is a table showing the English Indices of Multiple Deprivation (IMD) 2019 rank scores across regions in England (the lower the score, the more deprived the region is deemed to be), and their legal aid expenditure in 2019/20.

Region

Sum of IMD rank

Expenditure (£’000s)

North East

21,451,474

45,008

Yorkshire and the Humber

47,622,872

88,459

East Midlands

47,662,971

57,915

West Midlands

50,202,889

83,443

South West

59,490,696

66,812

North West

60,694,509

87,954

East of England

68,181,747

50,505

London

73,480,048

231,784

South East

110,593,358

40,451

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Yorkshire and the Humber appears in the IMD rank as one of the most deprived areas in England. When compared to the other regions in England with a similar or lower IMD rank, Yorkshire and the Humber’s legal aid

£88,459,000 spent on legal aid in Yorkshire and the Humber £83,443,000 spent in the West Midlands £57,915,000 spent in the East Midlands £45,000,000 spent in the North East – the most deprived region in England There are many explanations for high legal aid expenditure in a specific region: The area has a lot of legal aid providers (such as law firms or not-for-profit organisations).

The cases in the area may be more likely to fall under the reduced scope for legal aid following LASPO. Legal aid is now only available for the following types of cases unless under exceptional circumstances: environmental law, asylum, neonatal clinical negligence, mental health law, child welfare, eviction, most judicial reviews.

The area has a lot of disadvantaged people who qualify for legal aid based on the stringent eligibility criteria.

The number of legal aid providers overall has fallen over the years In part due to LASPO-related legal aid cuts, the number of legal aid providers across England and Wales has fallen over the years. In 2011-12 there were 4,257 solicitor firms and not-for-profit organisations providing legal aid work. This saw a rapid drop between 2013 and 2018, down to 2,818.

The latest figures show this now stands at 2,900. The full breakdown is below: Year

Number of providers

2011-12

4,257

2012-13

4,178

2013-14

4,282

2014-15

3,783

2015-16

3,359

2016-17

2,985

2017-18

2,818

2018-19

2,947

2019-20

2,900

Black, Asian and minority ethnic (BAME) clients make up the majority of legal aid claimants Looking closely into the demographics of those who receive legal aid, Black, Asian and minority ethnic (BAME) groups are featured far more than white groups. The government’s legal aid client diversity data from 2012 onwards shows that this has remained the case for the last 8 years. If further cuts are to be made to legal aid funding, it’ll likely disproportionately affect these minority groups:

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minority practising barristers p.1 has almost doubled demonstrates progress on diversity and inclusion at today’s Bar.

profession’s wellbeing from the senior criminal judiciary. It is causing the haemorrhaging of talented women from the profession.’

method to bring better balance to life and the profession.

Nonetheless, there is still work to do. While retention of women has improved, women still leave in greater proportions than men. Addressing factors behind this is a key part of the Bar Council’s current programme of work on Modernising the Bar. As well as this, our work with the young Bar (including focus groups and the Barristers’ Working Lives Survey 2021) and our planned Race Summit this Autumn will – we hope – help us better understand why barristers from ethnic minority backgrounds spend longer periods out of practice in their early careers than white barristers.”

More recently, the criminal bar has continued to suffer losses of young talented barristers, as highlighted by the Secret Barrister in the Guardian article, “Diversity of criminal bar at risk as junior barristers forced to quit,” (August 20204).

What then can be done in terms of solutions? There is increasing awareness of the need to support women at the bar, as shown by the popularity of groups such as Women In Family Law, the Association for Women Barristers, Women in Criminal Law, the Western Circuit Women’s Forum, and the North Eastern Circuit Women’s Forum, to name a few in an ever growing list. Senior female members of the bar continue to mentor, to lead by example, in order to demonstrate that this is a profession in which women can succeed, with the right support.

That support has to come from our clerks and senior colleagues, as shown by the Western Circuit Women’s Forum October 2019 report entitled, “Back to the Bar: Best Practice Guide Retention and Progression after Parental Leave”.

There are now many initiatives in place to support women at the bar.

Forward thinking chambers have robust parental leave policies, return to work policies, and percentage based expenses schemes, rather than flat rates, which mean that expenses is only paid on money actually paid.

There has undoubtedly been a greater emphasis in recent years on wellbeing and mental health at the bar, with for example the Bar Council’s “Talk to Spot” programme being made available to report bullying and harassing behaviour.

The Bar Council are currently engaged in the “Accelerator Programme” which incorporates nine projects focussed on increasing retention and progression of underrepresented groups at the Bar. The programme has identified a number of interventions that are required to support retention and progression of under-represented groups, which they are currently taking forward.

Nonetheless, the trend for a lack of comparable retention still persists. The difficulties of practising at the Bar while having childcaring responsibilities and balancing family life with a career at the Bar was seen as hugely problematic when the Bar Council conducted research in 2014-152 , and the recent BSB figures suggest that the problem is a long way from being resolved.

There are of course variables within practice areas. The criminal bar, with its unpredictable system for listing trials and requirement for last minute and out of hours preparation, has been warning of huge difficulties in retention for some time, well before the catastrophic impact of Covid-19 on the profession. In 2019, Chris Henley QC, then chair of the Criminal Bar Association, writing in Counsel magazine3, ‘During my time as Chair I have become completely convinced that nowhere near enough is being done on racism and sexism, right across the whole of the criminal justice system, not just at the Bar but certainly including it. There is such an entrenched reluctance to do much if anything about it and not enough priority is being given to the

Research has also highlighted issues of work allocation and income disparity, with female barristers and barristers from minority ethnic backgrounds likely to earn less than male and white barristers respectively5. That has led to recent initiatives for example on the North Eastern Circuit with additional training for clerks specifically looking at gender issues and the fair allocation of work.

Specific challenges The Bar now faces a significant problem for the retention of all those with caring responsibilities in the form of extended operating hours.

Despite piloting the scheme in 2020, and then deciding not to continue with it in February 2021, in July 2021, the Lord Chancellor Robert Buckland backed Ministry of Justice proposals to introduce new “temporary operating hours”, with two models that will run alongside normal operating hours. This will involve jury trials running either from 9am to 1pm, or 2pm to 6pm, but the ultimate decision about whether or not the scheme A previous survey conducted by Women in Criminal Law highlighted the devastating impact that these extended hours will have on women6.

The impact on childcare or other caring arrangements, impact on mental and physical health and the impact on work/life balance were the most commonly relied on objections. Critics have pointed out that the court estate has been diminished in recent years by substantial closures of courts, which could have instead been used to meet the demand and backlog.

Extended operating hours have also been seen on an unofficial basis in other areas of work, particularly in cases dealt with remotely. The advance of fully remote cases in the family court has led to an increasing number of case management hearings being dealt with from 9am onwards. That involves prehearing discussions and advocates’ meetings from 8am onwards, at a time when parents are juggling children and the school run. Before remote hearings were commonplace, that time was commonly spent travelling, which ironically removed the likelihood of a busy working mother multi-tasking and feeling under pressure to do and be all things to everyone. However, a balance between remote and hybrid working, if approached with an awareness by the judiciary and colleagues that working from home does not equate to 24/7 availability, can provide a useful

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The way ahead

If chambers want to retain the talented female youngsters that start life with them as pupils, and support them as they grow into senior juniors and QC’s, they need to have transparent policies in place to promote a return to work after parental leave, flexible working, and anti-bullying. Issues such as support through the menopause, and an openness about symptoms and the need for support are vital to the mental and physical health of women who are juggling the demands of a family, career and ever evolving hormones. A vital part of the support is the management team within chambers including the senior clerk, which must actively expect work to be fairly allocated, and promote good communication with the clerking team.

All of these are key to retaining women at the bar, and encouraging them to grow their practices towards judicial appointment and silk applications. It cannot and should not take another 100 years7 to make further progress towards equality at the Bar. ------------------------Trends in demographics and retention at the Bar 1990 – 2020 (BSB July 2021) 2 Bar Council – Experience of self-employed women at the Bar 2014-15.

3 https://www.counselmagazine.co.uk/ articles/in-the-thick-of-it-chris-henley-qc 4 https://www.theguardian.com/law/2020/ aug/31/diversity-of-criminal-bar-at-risk-asjunior-barristers-forced-to-quit 5 BSB (2020) Income at the Bar by Gender and Ethnicity.

6 https://www.criminalbar.com/wp-content/ uploads/2020/09/WICL-EOH-ReportResults1.pdf 7 https://first100years.org.uk/ 1

p.1 d. The ever-growing migrant and refugee issues that are everywhere in the world, Afghanistan being the most recent but sadly not the only such crisis.

What is certain though is that all these issues carry with them the inevitability of increased conflict across the plant. If we are willing to die for our ideologies, imagine what we will do for drinking water?

The Covid-19 crisis will continue to see insurance claims for loss of revenue, force majeure arguments in commercial contracts, increased investor-state arbitration, airlines suing governments for imposing quarantine regulations restricting travel, and more. There are literally billions of pounds of unpaid commercial rent arising from the various lockdowns in the UK alone that needs to be addressed.

Following the death of George Floyd, we saw increased tension with law enforcement in some areas, curfews in U.S. cities and the army on their streets, attacks on public monuments, and a ground swell of people of all nationalities and ethnicities saying enough is enough. The same following

the Capitol Hill riots. By any reasonable measure of public sentiment, it seems clear this movement is not going to fade away.

Then there is the issue of water shortages in the Middle East, Africa and now America where the federal government has declared a water shortage on the Colorado River and the Las Vegas Reservoir, fed by the Hoover Dam, is at its lowest level since the Dam was built in the 1930s (35% and falling). While the issue has been around for centuries it may soon be the biggest source of conflict on the planet.

Supply chain and other resource issues will follow but not to the same magnitude and not with the same catastrophic effect.

There is significant change everywhere we look. Most humans do not deal well with change. We are creatures of habit and fearful of what we do not know nor understand. This fear and uncertainty lead to increased conflict. People, tribes, and societies will feel the need to protect themselves, their way of life and their identity. The dominant culture will resist change and ceding power, the discriminated and dehumanized will insist upon it.

Around the world the courts will see

a sharp increase in litigation because of economic pressure, challenges to the status quo and the testing of unchartered waters as we navigate our way through change and the “new normal”. So too will the arbitration market. Already strained court systems will come under increasing pressure.

In the UK, all of this before we even discuss the high likelihood of increased disputes and litigation arising from Brexit.

Legal Profession’s Role So where do we - the legal profession - sit in all of this? What is our role moving forward? To make hay while the sun shines?

Do the barristers among us rub our hands with glee and make plans for a second holiday home (perhaps in Spain – I hear their holiday spots are in trouble)? This is the silver lining embedded in the current crises we face, is it not?

Maybe not. Now might be the perfect time to remind ourselves why we are truly here and what we lawyers can contribute to the world. Scratch around in our past and it turns out that our

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role moving forward is the same as it has always been. Many of us have just forgotten what that is.

In 1983 at the American Bar Association Midyear Meeting, thenChief Justice Warren Burger told the audience that the original role of lawyers was to heal social conflict and that it was time to embrace that role again. He asked: “Should lawyers not be healers? Healers, not warriors?

Healers, not procurers? Healers, not hired guns?”

Chief Justice Burger was not the first legally trained public figure to make that point.

Mahatma Gandhi put it this way “I understood that the true function of a lawyer was to unite parties riven asunder.”

And perhaps most famously of all:

“Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser - in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man.

There will still be business enough.”

Abraham Lincoln Those observations do not sit comfortably in our identity politics blame based culture, which is heavy on self-righteous anger and low on compassion, high on individualism and low on genuine connection. The practice of law has modelled itself on this cultural attitude. Of course, that is not true of all lawyers and all aspects of legal practice – I am generalising to make a point. But it is a fair point.

Are we using the best tools available?

Litigation remains our predominant response to dealing with significant conflict. Mediation, which promised so much 30 years ago (and still does) has not got the traction it deserves. While the sophisticated users of mediation know it and use it well (insurance companies, large corporates, multinationals, franchisors), the uptake amongst the majority of those in conflict has been poor. Mediation in many respects has stalled in its development. Why is that?

In part this is because of the way we mediate which is limited in scope – most mediations are still run on the traditional one-day model. That model has not changed since mediation was first introduced into the dispute resolution market.

The model works very well for litigated disputes but what of the conflicts arising from the issues discussed in this article, many of which have significant social and political components but are not suited to a litigated process?

While it is encouraging to see the Master of the Rolls so active in dispute resolution and its integration with the court system, and the Civil Justice Council’s recent report on Compulsory ADR, these global issues are not going to be resolved for the benefit of all humankind by litigation. Of course, some aspects of these conflicts will go to the courts or into the international arbitration process for determination, but those will be for remedies specific to the litigating parties, not resolution of the whole.

What do we do about the resolution of the increasing number of long-term resource issues that are now cropping up and will be here to stay (drinking water, access to healthcare, and food supply)?

What about the crisis to end all (literally) – climate control? Our approach to that cannot simply be litigation (aspects of it of course can be litigated –ESG is an example). But as Ken Cloke said: when you are all in the same boat and that boat is sinking there are no winners, only losers.

Litigation or even the mediation of litigated disputes that deal with parts of the whole is not the answer. But an expanded view of mediation as a collaborative, facilitated discussion that takes place over days, months or even years may be a huge step in the right direction and one that lawyers as the healers of social conflict can take. Call it a facilitated, interest-based conversation if it needs a name.

Why has the early resolution of disputes using a multi-day facilitated negotiation model not gained traction? It has found a home in peace negotiations. So why are we not facilitating more debates involving all the stakeholders that have an interest in issues of significant public policy?

Like systemic discrimination, water shortages, refugee, and migration issues?

Is self-interest the answer? If something is happening to “them” (you can interchange who “they” are depending on the crisis you are looking at) is it all too easy, even in this age of awareness and enlightenment, to simply say: not my problem? Shortage of water in Ethiopia – not my problem.

Afghan citizens so desperate to escape they cling to the undercarriage of aircraft that are getting airborne – not

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my problem.

Litigation is well suited to our identitybased approach to conflict – making conflict an argument resembling a war to be won or lost at all costs. But is that the right approach? The three quotes refered to above suggest not.

Looking Forward Global issues of the magnitude we are discussing here cannot be allowed to go unresolved or to result in armed conflict and must be resolved for the benefit of humankind. If that does not happen there will be no winners, only losers. For example, while armed conflict may “settle” a water dispute in the short term it will not address the underlying issues of scarcity and an ever-growing population that needs access to drinking water and water for crops. Meaningful dialogue and collaboration are the only way to address issues on this scale to find viable solutions to the problem, which are not regional but global. They are not us and them based but “we”.

With all that has happened in recent months around the world, and all that is yet to unfold, now is the perfect time to look for opportunities, new beginings and to revisit the origins of what it means to be a lawyer.

We need to embrace the role we lawyers can play as the healers of social conflict. We are in the dark and we need a torch.

By Paul Sills, Arbitrator, Mediator, Barrister

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

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Supreme Court clarifies calculation of limitation periods in midnight deadline cases

By Raj Arumugam, Barrister, 5 Stone Buildings, Lincoln’s Inn The Supreme Court in Matthew v. Sedman [2021] 2 WLR 1232 has provided much needed clarification on the calculation of limitation periods in cases where the cause of action accrues at midnight. The decision provides a salutary warning to claimants on the importance of seeking legal advice and issuing proceedings well before a limitation period expires.

The Facts The Appellants were the trustees and beneficiaries of a trust established under the 1948 will of Mrs Evelyn Hammond, who died in 1952 (the “Trust”). The Appellants were appointed on 1 August 2014, replacing the Respondents who were the former trustees.

The Trust held shares in Cattles plc (“Cattles”), a company listed on the London Stock Exchange. In 1994, Cattles acquired Welcome Financial Services Ltd (“Welcome”). In 2007, Cattles published an annual report, information from which was included in a rights issue prospectus released to potential investors in April 2008.

The Financial Services Authority subsequently found that information in the annual report and the prospectus had been misleading.

Trading in Cattle’s shares was suspended. In December 2010, Cattle and Welcome each issued proceedings for Court-sanctioned schemes of arrangement. Both schemes were approved by the Court on 28 February 2011. The terms of each scheme included provision for claims to be submitted by shareholders. The rules for the Welcome Scheme provided that:

“in order to be entitled to any Scheme Payment, Scheme Creditors must, on or prior to [Thursday 2 June 2021], submit a Claim Form.”

Unfortunately, the Respondent former trustees failed to submit a claim for the Welcome Scheme in time. It seems that they made a late claim after 2 June 2011 which was refused by the scheme’s administrators. The Respondents then retired as trustees on 1 August 2014.

On Monday 5 June 2017, the Claimants issued proceedings against the former

trustees for breach of trust and negligence for their failure to make a claim in time under the Welcome Scheme (the “Claim”).

In response, the former trustees applied for summary judgment on the Claim on the basis that it had been issued out of time and was statute barred under the six-year time limit in sections 2, 5 and 21(3) of the Limitation Act 1980, which apply respectively to actions founded in tort, actions founded in contract, and actions by a beneficiary in respect of any breach of trust. The key wording in each of those sections is identical, namely:

“An action … shall not be brought after the expiration of six years from the date on which the right of action accrued.”

The issue for the Supreme Court Lord Stephens, who gave the lead judgment of the Supreme Court, summarised the question which arose on the appeal as follows: does Friday 3 June 2011, the day which commences at or immediately after the midnight hour, count towards the calculation of the six-year limitation period?

If Friday 3 June 2011 was included for the purposes of calculating limitation, then the limitation period expired 6 years later at the end of Friday 2 June 2017 – on that basis the Claim (issued on Monday 5 June 2017) would have been statute-barred.

If, however, Friday 3 June 2011 was excluded from the calculation, then the limitation period expired at the end of Saturday 3 June 2017. Since the court office is closed over the weekend, then (applying the Court of Appeal’s decision in Pritam Kaur v. S. Russell & Sons Ltd [1973] QB 336) the time for issuing

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proceedings is extended until the next day when the court office is open, namely Monday 5 June 2017, in which case the claim would not be statutebarred. A similar provision appears in a procedural context in CPR rule 2.8(5).

Determination of this short but important point was confused by conflicting decisions at both High Court and Court of Appeal level stretching back to the 18th Century. Accordingly, the Supreme Court decided it was time to settle the matter.

Judgments at first instance and in the Court of Appeal At first instance, Judge Hodge QC (sitting as a judge of the High Court) agreed with the former trustees and granted their application for summary judgment, holding that the Claim was time-barred. The Judge found that the Claimants’ cause of action arose at the first moment of Friday 3 June 2011, noting that “at any moment during that day the [appellants] can bring a claim” and therefore the Judge included this day for the purposes of calculating the limitation period. The Judge relied in particular on the decision of Channell J in Gelmini v. Moriggia [1913] 2 KB 549 (discussed below). However, recognising that there were conflicting authorities on the point, the Judge granted the Claimants permission to appeal on this issue.

The Court of Appeal (Irwin and Underhill LJJ) (Matthew v. Sedman [2020] Ch 85) dismissed the Claimants’ appeal, however their Lordships’ reasons differed both as between each other and from the first instance Judge.

Irwin LJ held that in a “midnight deadline” case such as this, the cause of action had accrued by midnight.

Accordingly Irwin LJ did not consider the cause of action arose on 3 June 2011. Underhill LJ’s reasoning was

slightly different. His Lordship held that the cause of action arose at midnight.

Supreme Court decision After reviewing four principal authorities relied upon by the Claimants, Lord Stephens accepted that there was a general rule that when calculating a limitation period, any part of a day happening after the cause of action accrues is excluded from the calculation of the limitation period.

However, Lord Stephens noted that none of the Claimants’ authorities were ‘midnight deadline’ cases. Instead, the only midnight deadline case before their Lordships was Gelmini v.

Moriggia. Although acknowledging that there were some potentially confusing passages in that judgment, the clear principle which arose from Gelmini was that:

“a person who has to pay has the whole of the day upon which payment is due in which to pay” and the cause of action is complete (and the claim can be brought) at the start of the next day.

Crucially, Gelmini was not a ‘fraction of a day’ case.

Supreme Court’s conclusion Lord Stephens acknowledged the

general rule which applied to ‘fractions of a day’ cases that the day of accrual of the cause of action should be excluded from the calculation of time for the purposes of limitation. This was because the law rejects a fraction of a day and to do otherwise would prejudice a claimant and interfere with time periods stipulated by Parliament.

The principle is longstanding and can be seen in the House of Lords’ judgment in Mercer v Ogilvy in 1796 where Lord Thurlow referred to the Latin maxim dies inceptus pro completo habetur (a day begun is treated as completed).

However, the case before the Supreme Court was a ‘midnight deadline’ case, which Lord Stephens explained was an exception to this general rule.

The concept of an undivided day has no application to midnight deadline cases because the cause of action accrues at the very start of the day after performance ought to have been completed (in contact) or the breach occurred (in breach of trust). It is not permissible to exclude a whole day as that would (unduly) distort the applicable statutory limitation period and prejudice a defendant by effectively lengthening the statutory limitation period by one day. Lord Stephens neatly explained:

after midnight, led to the conclusion that the concept of an undivided day was no longer appropriate…”

Lord Stephens concluded by saying: “The rule is that any part of a day (but not a whole day) happening after the cause of action accrues is excluded from the calculation of the limitation period.” Accordingly, the appeal was dismissed.

Discussion The judgment is to be welcomed.

Ironically, the result was that in bringing proceedings against the former trustees for failure to make a claim in time, the current trustees themselves had narrowly missed a limitation period.

More widely, the effect, in fractions of a day cases, is that the statutory limitation period will be extended by a few hours. This is plainly better than the alternative which is to see the limitation period being shaved back by a few hours and which would cause greater uncertainty.

Raj Arumugam, Barrister, 5 Stone Buildings, Lincoln’s Inn

“I consider it would impermissibly transcend practical reality if the stroke of midnight or some infinitesimal division of a second

What does NHS data sharing mean for our data privacy?

By Kingsley Hayes, Head of Data Breach, Keller Lenkner UK

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mong the many lessons to be learned from the Covid-19 pandemic is the inextricable link between health and data: effective use of the latter has undoubtedly helped save many lives over the past year.

However, long-term use of NHS data is more contentious, not least the issue of data sharing with third parties and protection of that data. In May, The General Practice Data for Planning and Research scheme was announced

by the government, under which GP health data for everyone registered in England would be made available to researchers and companies for healthcare research and planning, with people’s identities partially removed.

But according to privacy campaigners, the process to remove identities could be reversed, which led to a widespread online campaign encouraging people to opt out. In August, the Observer revealed that nearly 1.4 million

people had opted out of NHS datasharing in May and June, following a huge backlash against the plan to make patient data available to private companies. As a result, the plan has now been put on hold with no new implementation date yet fixed.

Privacy campaigners can also point to the NHS having a chequered history in data sharing and protection. In 2016, the UK’s Information Commission (ICO) censured the Royal Free NHS

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Foundation Trust in relation to data on 1.6 million people, which it handed over to Google’s DeepMind division (an AI company) during the early stages of an app test to enhance their machine learning capability. The ICO ruled that the Royal Free did not do enough to protect the privacy of patients, and that it was “inexcusable” that they had not been told about what had been happening to their data. The information commissioner, Elizabeth Denham, said that attempts to make creative use of data had to be carefully managed. “The price of innovation does not need to be the erosion of fundamental privacy rights,” she added.

Since the GDPR came into force in May 2018, NHS Digital has had further significant issues securing the appropriate consents to data record sharing in an IT project that had glaring failures. Meanwhile, the NHS is working on AI projects via NHSX to use machine learning in research and development projects. Again, questions exist around data transparency and public consent with regards to personal data use within that project.

In May, Big Brother Watch reported that NHS Digital’s management of Covid vaccination status data had failed to deliver even basic safeguards, which could lead to information being exploited by insurers, companies, employers or even scammers looking to defraud individuals. Director of Big Brother Watch, Silkie Carlo, said: “This is a seriously shocking failure to protect patients’ medical confidentiality at a time when it could not be more important. This online system has left the population’s Covid vaccine statuses exposed to absolutely anyone to pry into. Robust protections must be put in place immediately and an urgent investigation should be opened to establish how such basic privacy protections could be missing from one of the most sensitive health databases in the country.” After it was revealed that the system leaked people’s vaccination status, NHS Digital then altered its Covid vaccination booking website.

Potential or actual data misuse is the big issue when the NHS shares confidential patient data with a thirdparty organisation. If that personal data is provided as part of an overall AI project, what happens to it, where does it go, where does it sit, and how many times does it get processed?

Ultimately, the key questions for the people concerned are: what does a data subject, as an individual, know about the consent they have given for the processing of that data, where it is then going to be used and how many times is it going to be used?

The number of external suppliers to the NHS is substantial: 28 million lines

of picked goods are delivered to the NHS annually with consolidated orders from over 930 suppliers. Information relating to the number of supply chain partners operating with the NHS Digital Commercial team of procurement professionals is not itemized.

The NHS Digital team states: “Our supply chain partners are fundamental to our on-going success, creating significant value through the delivery of new thinking and innovative solutions. Through the deployment of Strategic Supplier Relationship Management (SSRM) we are focused on creating an effective and collaborative relationship with our most important suppliers, creating additional value and innovation that goes beyond our contracts.” It adds the following in relation to the collection and dissemination of data: “We ensure that external organisations can access the information they need to improve outcomes, and the public are confident that their data will be stored safely by NHS Digital.”

What happened with Royal Free, combined with more recent events, demonstrates that public confidence in NHS Digital’s commercial relationships with external organisations is open to question. The Data Protection Act of 2018 and the GDPR are designed to ensure that an individual data subject - the person giving consent - should be fully appraised of all of uses of that data, where that data is going to end up, how it is going to be treated, and ultimately, if it is going to be retained or disposed of.

Post-GDPR being implemented, an element of mystery still exists concerning AI projects as to how often that data is utilised in the machine learning process, and where it ultimately ends up. The overarching aspect is that the designers of AI and machine learning programmes closely guard information about how the algorithms underpinning these programmes work. Once data has been provided so that individual data subjects do not know what has happened to it, there is very little transparency in the process. Moving forward, the concern for any individual is that once they have given consent, is it possible to withdraw it and remove that data from the from the AI tank?

If not, then it does not accord with the principles of GDPR and data subjects.

The EU is now looking at AI regulation comparable in many ways to GDPR. But the UK’s direction of travel appears to be that this is one area where we will not keep alignment in place. GDPR and the protection of data rights is an area where which will probably evolve more by judicial intervention than by additional regulation. Over time, UK divergence from the EU will lead to judicial divergence of laws created by

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the EU. When considering the future relationships of NHS Digital with thirdparty companies, there is cause for concern. Based on its track record, it is reasonable to assume that state-owned entities like the NHS simply do not have the technical capabilities to understand what exactly AI projects can and will do. The NHS is buying an outside resource which, necessarily, sometimes has its own agenda. An objective look at some US tech companies operating in the NHS market reveals a very fixed, well-established agenda around the provision of services and understanding of what services will be required in the future, and how they can monetise them.

The problem lies less with the technical capability of NHS Digital, and rather more with a lack of understanding of the core objectives of some tech companies with which they are doing business. These core objectives do not necessarily align with those of the NHS. Essential process changes need to be made to the NHS but it is simultaneously floundering in terms of how to achieve that technically: the more the NHS relies on outside agencies, the greater the risk that it will not have the appropriate level of compliance, particularly where interests do not align.

Against this background, significant data misuse seems inevitable and will ultimately lead to litigation. The key driver will be consumer understanding and a demand for greater transparency in how individuals’ information and data is dealt with. At present, most people do not appreciate the value of their personal and medical data.

In some instances, it’s probably worth more than gold. Over the next few years, there will be greater investigation into some of these tech and AI products.

Dissemination of such information will enable the public to understand and regain control of their personal data.

It is inevitable that this will provoke litigation – not against the NHS, but against some of the organisations with which they have commercial relationships. The motives and monetary gain that is sought by thirdparty suppliers will lead to actions against them, and the implementation and processing of data will be key. The public will not sue the NHS for dealing with personal data when seeking to improve their services. The tech companies responsible for handing the data will be the ones in line of sight.

Kingsley Hayes, Head of Data Breach, Keller Lenkner UK

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The Cyber Violence Crisis - why are women still the primary victims?

By Christina Warner, barrister, Goldsmith Chambers Science Computer Review, a study of online content concluded that there is substantially more online hate directed towards women than there is towards men including insults, threats, revenge porn, and cyber stalking with prevalence rates varying from 23% to 53%.5

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ocial media platforms and the internet have created means of free expression on an unprecedented scale in both volume and pace of content. Where there once had been media gatekeeping mechanisms1 there now stands little in the way of people remaining anonymous whilst conveying their most brutal criticism or explicit threat in the absence of any moral, and arguably legal consequence.

But the victims of gender-based cyber violence have been found to disproportionately be women and girls. According to a 2021 study from the Economist Intelligence Unit,2 38% of women have reported personal experiences with online violence. But this is not a recent issue. The issue has extended beyond one demographic and into both public commentary and private intrusion.

The VAWG (Violence Against Women and Girls) Helpdesk Research Report cites hacking, impersonation, surveillance/tracking, harassment/spamming (either by an individual or group), recruitment into violent situations (e.g. trafficking), and malicious distribution of defamatory and illegal materials (e.g. revenge porn)3 as examples of cyber violence encountered by women and girls. Most recently, digital tools have also created further means of abuse with the likes of ‘deep fakes’ or the production of non-consensual sexual images giving perpetrators the opportunity to create and circulate harmful content against the victim.

Increasing trends According to research by the Social

The same was found in an experiment using fake male and female usernames in a chat room. While users with female names received on average 100 sexually explicit or threatening messages daily, men only received 3.5 such messages on average per day.6 But, the impact of online abuse rarely remains online with victims reporting that the abuse affects their ability to work, socialise and their self-esteem7 and in some cases having long-lasting effects on their mental health often resulting in an increased likelihood of depression and anxiety disorders.

Other social and economic impacts have been found by way of withdrawal from the public debate, costs incurred for seeking legal and healthcare assistance, labour market impacts in terms of lower presence at work, risks of job loss or lower productivity, and reduced quality of life due to poor mental health itself.8 Numerous high profile cases both in the UK and the US such as the online harrassment of Robin William’s daughter shortly after his death in 2014 and the suicide of TV presenter, Caroline Flack in February 2020 highlighted the impact of online bullying and harassment and the dire consequences which can result.

But the figures represented may only reflect a fraction of what is taking place, with conclusions being drawn that the data is limited due to underreporting. Underreporting is also reflected in victims’ lack of awareness that cyber violence is taking place and a lack of understanding or knowledge as to what to do to manage the situation.9 The concern being that cyber violence will be minimised, and more worryingly, legitimised entirely, leaving victims

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to deal with the mental consequences alone.

One of the most relevant arguments has been the need for consistency in the definition of violence in the collection of research and statistics in order to accurately assess the issue. As concerns of the evolving forms of cyber violence grows so too, must the definition of violence and hate crime itself. This being particularly pertinent where the victim and perpetrator are known to each other in the context of possible domestic abuse, with the European Institute of Global Equality warning not to think of cyber violence as a separate phenomenon to real-world forms of violence, with perpetrators blurring the lines of online and offline violence and aggression towards victims. Generally, the term ‘cyber VAWG’ is used to capture the different ways that the internet and information and communication technologies exacerbate and magnify acts of violence against women and girls.

Change in policies Campaigns towards challenging and managing online abuse and cyber violence (not only aimed at women) have increased with the likes of FaceBook and Twitter responding with greater filtering of messages and adapting notification settings. But whilst the Budapest, Istanbul and Lanzarote Conventions of the Council of Europe help to address cybercrime and prevent and combat violence against women and children, including cyber violence, arguments have been made that social media platforms themselves are doing little to address the issues.

Campaigners lobbying for companies to review their approach and in turn, their policies on the issue of online violence against women and girls was highlighted by Amnesty International in 2018, labelling Twitter as “toxic” and accusing Twitter of failing to respect women’s rights online,10 providing the threats of sexual violence that had been made against Scottish First Minister, Nicola Sturgeon earlier that year as an example of the seriousness and urgency of the issue. More recently, in July 2021, Facebook, Google, Twitter and TikTok signed a pledge to remedy persistent weaknesses in their approach to tackling online gender-based violence.

The pledge, led by the World Wide Web Foundation (WWWF), was announced during the global forum for gender equality convened by UN Women in Paris.11

Moves towards ensuring policy changes have focused on factors most likely to make a victim vulnerable to gender-based cyber violence. These have included young women and adolescent girls, those who are in abusive relationships whilst offline (including victims of intimate partner and in-person violence), those of BAME communities, those of diverse sexualities or gender identity, those living with disabilities and women in public office or in the public domain.12 But as the 2021 study from the Economist Intelligence Unit13 found, most efforts to address the issue of online gender-based violence focuses on post-experience responses rather than prevention.

But with more people showcasing their personal lives online as well as the increase in reports of partners sharing intimate photos, the scope for online abuse is wide-ranging. From social media platforms enabling abuse on a public level to texts and direct messages intended for the victim to receive privately, the manner in which cyber violence and online abuse manifests, is as diverse as those who encounter it.

The contents and widespread circulation of social media reinforces existing forms of violence against women and undoubtedly, also creates new tools to threaten women and inflict harm, both off and online.14 The scope and reach of cyber violence will evolve as technology develops and so too will the need remain for poli-

cies and legislation to promptly follow suit. This being particularly critical within the framework of the definition of cyber violence and hate speech against women and girls by the UN and EU as well as on national, societal and academic levels, if victims are to remain protected. Again, this proposal will only address the issue after the fact rather than dealing with the root causes of cyber violence. Educational and industry drives towards encouraging women and girls to become involved in the male-dominated technology and computing sectors may be a start to tackling the issue on a practical level but may prove to be more a remedial step rather than a preventative measure.

But greater and deeply-entrenched issues such as societal and domestic gender inequality and misogyny are clearly reflected in the statistics of women and girl victims and the content being created by perpetrators. Whilst this is allowed to continue, by a lack of addressing the causes, so too will the discriminatory norms designed to limit victims’ potential.

-----------------------1 Process of Gate Keeping in Media: From Old Trend to New, Shabir, Safdar and Mumtaz,. January 2015, Mediterranean Journal of Social Sciences, Vol. 6 No. 1 S1 (2015): January 2015.

2 Measuring the prevalence of online violence against women <https://onlineviolencewom-

en.eiu.com/> 3 Nature and Prevalence of Cyber Violence against Women and Girls, Dr Erika Fraser and Laura Martineau-Searle,. No 211, 08 October 2018.

4 Silencing Women? Gender and Online Harassment, Marjan Nadim and Audun Fladmoe,. Social Science Computer Review 2021, Vol. 39(2) 245-258.

5 Cyber violence and hate speech online against women, European Parliament, Policy Department for Citizens’ Rights and Constitutional Affairs, September 2018 < https://www.europarl.europa.eu/ RegData/etudes/STUD/2018/604979/IPOL_ STU(2018)604979_EN.pdf> 6 Ibid 4 7 House of Commons Science and Technology Committee Impact of social media and screen-use on young people’s health Fourteenth Report of Session 2017–19, 29 January 2019 8 Ibid 5 9 Home Office, Policy paper, Tackling violence against women and girls strategy, 26 July 2021.

10 <https://www.amnesty.org/en/ latest/research/2018/03/online-violence-against-women-chapter-1/> 11 UN Women, Press release: < https://www. unwomen.org/en/news/stories/2021/7/ press-release-generation-equality-forum-concludes-with-commitments-and-global-acceleration-plan> 12 Ibid 3 13 Ibid 2 14 WHO, Violence Against Women, 9 March 2021 <https://www.who.int/news-room/ fact-sheets/detail/violence-against-women>

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Transition – 10 years on

By Robin Moira White, barrister, Old Square Chambers August 2021 marks 10 years since I became the first barrister to transition from male to female at the discrimination bar. Much has changed but not all for the better.

Back then, the Equality Act 2010 was new and the profession was getting its head around the changes it introduced, not least on gender reassignment discrimination where the 2010 Act had removed the medical diagnosis requirement that the previous 1999 Regulations had required. The more recent loud arguments about self-identification of gender appear to have ignored the fact that the Equality Act has had self-identification of gender reassignment for over a decade now and the walls of Jericho have not fallen.

Britain itself seemed rather different then. Under the coalition government, a confident Britain looked forward to the 2012 Olympics, LGBT folk knew that same-sex marriage was finally on the cards. How could we have predicted that we would find the country 10 years later I the hands of a rump Tory government, the first country ever to imposed trade sanctions on itself in which bigotry and hatred of minorities – one minority in particular – would be being validated by significant public figures. Cameron and Corbyn have much to answer for.

But in ignorance of the changes to come I finally took the step of transition and on that Autumn Day walked into Chambers for the first time as myself. A good friend had advised me to get my story ‘out there’ myself and a piece appears in the law section of The Times written by Francis Gibb. Reflecting the changes to Britain, The Times was still under its last real editor, James Harding.

My transition was delightful, with wonderful help from Chambers, professional colleagues and friends, and I got on with settling into middle age.

The decade since has seen the rise of a number of unpleasant anti-trans organisations. They often have worthy-sounding names but are easy to spot if you look at the material they put on their websites and distribute.

It is highly reminiscent of the anti-gay material familiar to those of us who remember the 1970’s and 80’s when Section 28 stalked the halls and gay men were said to pose a threat to children. Now trans women are said to pose a threat to women and girls and responsible public officials who should know – and act - better feel able to endorse statements suggesting trans people are ‘dangerous’. Strangely enough, the trans friends I have are lawyers, medics, entrepreneurs, and public servants and pose a threat to noone. When using the loo in Sainsbury’s

on a Saturday, I am there to ‘pee’ and for no other reason. But many trans people are deeply affected by the moral panic being whipped up with delight by the ‘nasties’ and their allies in the media. But Britain threw away its membership of the European Union based on scare tactics and innuendo, so why should this not be effective? There is an attempt to capture the language by characterizing being trans as a ‘debate’ and an ‘ideology’. It isn’t. It is a very real state of being. It would be amazing if I, as an isolated teenager in rural Somerset in the 1970’s had managed to invent the same ‘ideology’ as everyone else. Being trans can be really tough and those who wish to populate cyber-space with unpleasant anti-trans rhetoric might do well to take a moment to think of the consequences of their actions on real people.

Fortunately, the position in the courts is rather different. Chambers and Partners were kind enough to describe me as the ‘go to’ lawyer for trans cases.

I act for both employers and employees and have gently grown this as an area of my discrimination practice over the past decade. It is a source of pride that both ends of the trans issue spectrum have felt able to come to my conference table and receive objective advice about when the law really is. In May, with my wonderful Chamber’s colleague Nicola Newbegin and some top rank contributors we published ‘A Practical Guide to Transgender Law’ which we hope will establish itself as the leading text in the area. It seeks to be an accurate statement and explanation of the law as it is, not a campaigning book.

One reviewer described it in the Employment Lawyers Association monthly magazine ‘Briefing’ as ‘authoritive, knowledgeable, objective and highly readable’. So we have one fan at least.

I also speak regularly on trans matters.

Trans has been keeping the courts busy and the so-called ‘gender critical’ groupings have made crowd funding of litigation their weapon of choice. However the results have been rather patchy. The Bell v Tavistock judgment which criticised the use of puberty-blocking drugs for trans children seems likely to be overturned by the Court of Appeal. A challenge to Equality and Human Rights Commission guidance on the Equality Act embarrassingly failed at the permission stage, and Prison Service policy on the treatment of transgender prisoners was upheld in the High Court. The Forstater judgment means rather less than Ms Forstater would have everyone believe and harassment of trans people

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in the workplace remains unlawful. In Scotland, where prospects for legislative reform are brighter, the inclusion of trans women on government panels has survived a legal challenge. Under the present UK government progress on discrimination rights is even less likely than a rapid return to EU membership but forward motion continues in the courts as represented by Taylor v Jaguar Land Rover last year which recognised non-binary (and by extension other complex) gender identities as protected under the Equality Act. An area to watch will be guidance for schools on dealing with trans children.

This not an easy area and schools do need help. The England and Wales Equality and Human Rights Commission promised national guidance for some years. A well-written completed version was available but spiked by their unsupportive political masters who, it is reported, wanted something far less supportive of trans pupils but a version which achieved that within the law could not be achieved. The Scottish Government have had more courage and recently published excellent guidance and the Welsh Government is consulting on doing the same. This has left English education authorities isolated and many have been unwilling to bear the cost of resisting legal challenges by gender critical groups or parents.

Oxfordshire withdrew their guidance believing the EHRC guidance was in prospect and a Welsh local authority have been a recent casualty. At least one local authority is, to my knowledge, standing ready to end this particular game of ‘whack a mole’. Several anti-trans groups publish superficially attractive schools guidance which when read can be summarised as ‘don’t support trans children’. Following these groups’ guidance would leave schools open to legal challenge. Not helpful.

If the above all seems a bit ‘doom and gloom’ one area gives me hope for the future. I am privileged now to spend some of my time with law students and junior lawyers. The upcoming generation ‘get’ trans and complex gender identities and regard the opposition to recognizing such folk as rather odd.

As they replace our current leaders I am sure the landscape will look rather different in 20 year’s time. We just been to survive the next ten. The one certainty is that there will be more litigation.

Robin Moira White, barrister, Old Square Chambers

Robin became the first barrister to transition from male to female in practice at the discrimination bar in 2011.

She practices in all aspects of employment and discrimination law and lectures regularly on the area.

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How AI and intelligent automation must be on the agenda for reducing the UK Justice Backlog The UK’s Criminal Justice System has almost been brought to a standstill this past year. While case numbers were already mounting before the pandemic hit, there is now a record backlog of almost 58,000 Crown Court cases.

By Alex Case, Senior Director, Industry Principal, EMEA Public Sector at Pegasystems

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report published in March by the House of Lords constitution committee said funding cuts had already left courts and tribunals struggling going into the COVID-19 pandemic, and were exacerbated by a “regrettable” failure to plan for such a threat.

The problems with the justice system are only a part of how many public services including health, welfare and education have been put under extreme strain by the pandemic and are progressing into 2022 with huge backlogs.

There is a clear need for central government to provide a detailed plan for how all of these public services can get back on track. However, having made huge expenditures to safeguard jobs and businesses during the lockdowns, any talk about COVID-19 recovery for public services hits the hard reality of a likelihood of spending freezes or cuts being imposed across many departments, in order to start paying down the increased deficit.

So the Ministry of Justice is likely to be asked to claw back budgets with new savings, even as the backlog in courts grows higher, denying justice to victims and defendants alike and putting staff and legal professionals under increased stress. Expert voices like James Mulholland QC, chair of the Criminal Bar Association have have called for opening up more capacity to get more cases heard and completed; and to be fair, the government has made available emergency funding to open up more temporary courtrooms.

Greater capacity alone however will not solve the backlog problem. There is a clear need to also look at how technology can help improve the administrative processes to drive down the backlog.

Any advantage from opening more courtrooms or increasing the sitting time of judges will be lost if the administrative processes remain inefficient. Typically, the root cause

of this is how the systems and data used to progress a case reside in too many separate systems and databases, together with the lack of aligned incentives and sanctions to drive the timely progress of cases.

Despite the ongoing rollout of the new Common Platform IT system (with which I was involved when I worked in government), data silos, fractured systems and manual processes and workarounds will continue to undermine any policy coming out of the UK government to improve the justice system.

Streamlining the way cases are processed can ensure that everyone involved gets a fair chance, whether they’re in the criminal, civil, or family court system. Automating everything you can in the justice ecosystem, whilst fully respecting judicial independence, makes it easier to turn decisions into outcomes.

Improving the UK justice system from its current situation will be challenging.

Change will viewed in the context of the legacy of spending cuts, court closures and sometimes less than successful IT investments.

Yet there are examples of how this can be done in other jurisdictions.

These often utilise process automation

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technology and artificial intelligence to help streamline how cases are brought to trial and processed.

One great example is the US state of New Jersey, where around seven million new cases are filed in the state-level court system every year.

In the last few years, this state has transformed how it processes cases through its court systems. Key to this was a unified complaint entry (UCE) system used by police officers and courtroom staff.

With UCE, all 40,000 New Jersey police officers enter complaints or tickets directly into a single system.

The system automatically manages each case from initial entry, generates the court date for the defendant and manages the entire lifecycle of the case.

Artificial intelligence (AI) capability within ACE automates judicial administrative processes to manage the lifecycle of a case to ensure the efficient and accurate flow of information to all judicial parties. This seamlessly works from the pretrial detention process to a judge’s final decision on detention or release of a defendant.

What is striking about the New Jersey example is how fair but swift justice is being achieved without eye-wateringly high costs. From start to finish, court

staff are now able to complete initial processing of a defendant in under 20 minutes, when previously this took courts three hours to complete.

This includes an in-person interview, recommendation to a judge, and risk assessment processing. There are around 80,000 defendants to process per year, and the time savings from this process alone are significant. Overall, the New Jersey Courts estimated that the new unified complaint management system is 87% more efficient than the previous approach. These improvements in how the court system is processing cases are also achieving cost savings for taxpayers. The new systems achieved immediate savings of over $5 million from the new systems simplified processes.

A concern for any government department embarking on the kind of transformation achieved in New Jersey will be whether this new system will keep pace with future changes in legislation or judicial sentencing guidelines. The answer is making sure the new technology breaks away from traditional big software offerings that are inflexible and can be out of date before they are fully implemented.

The New Jersey system is built on a ‘low code’ business process modelling approach to designing and building software to automate processes. This means staff are able to make many changes to the software themselves without needing software coding skills, cutting the future costs of how the

system is maintained or adapted to comply with new laws and policies.

Judicial decision-making is being put under severe pressure in the UK justice backlog. While the concept of justice by algorithm needs much greater debate and agreement, there is a role for AI in supporting judges and magistrates when they look at cases.

In New Jersey, the court system also developed an AI-powered application called the Public Safety Assessment (PSA) to assess defendant risk.

Using business rules and approved government policy, PSA generates a score that assesses the risk of a defendant to society based on factors such as criminal history, employment status, living arrangements etc. The PSA provides a score to the judge that assesses the risk of the defendant failing to appear in court. These risk scores enable judges to make more informed, real-time decisions when determining the appropriate next best action for a defendant pre-trial.

The end result of this use of AI in justice appears positive. The PSA has helped ensure low-risk defendants are able to continue earning income for their families before trial and highrisk defendants remain in jail. It also reduces prison overcrowding and the associated taxpayer costs which can be as high as $1 billion a year in the state.

seriously considered to address the significant backlogs facing the UK’s courts system. Using this technology, it is possible to prioritise and triage cases by quickly conducting intelligent risk assessments of each defendant using pre-determined rules and criteria.

While the UK’s Criminal Justice System has started to digitally transform, through the use of electronic case files and eliminating data siloes by unifying disparate data sources, more can be done to automate processes and make real-time decisions using predetermined rules about a defendant’s path through the court system.

Alex Case, Senior Director, Industry Principal, EMEA Public Sector at Pegasystems

Alex is an internationally experienced public sector reform and government delivery and analytics specialist with extensive experience as both a senior civil servant and management consultant. He has led large-scale public sector reform initiatives in both the UK and Canada and has held a number of positions at the heart of government including in No10, Cabinet Office, HM Treasury and the Ministry of Justice.

Artificial Intelligence coupled with intelligent automation should be

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The role of machine translation in the legal sector

By Alan White, Business Development Director at The Translation People recently used its own automatic translation technology to launch its first ecommerce site in Sweden, it hit the headlines when the translations outputted were lewd and vulgar in nature, bringing attention to the launch for all the wrong reasons4.

In reality, machine translation technology only comes into its own – providing the most accurate and effective translations – when delivered as a hybrid solution together with skilled language and translation professionals with a specialism in the legal sector.

Whether a barrister is working on a criminal, civil or commercial case, machine translation is going to become a routine part of every day.

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hether dealing with business owners with enterprises overseas, receiving evidence from non-English speakers or simply trying to manage large volumes of legal documents as efficiently as possible, reliance on translation services across the legal industry is rising.

However, given that even the most inconspicuous of inaccuracies in court documents can lead to delays in hearings or the undermining of evidence once discovered, there’s a real and definite need to utilise translation services which offer the highest levels of precision possible.

Machine translation is growing in popularity in legal sectors around the world, but how useful is this technology for the industry in practice?

At its core, machine translation offers significant time and cost saving efficiencies for those managing large volumes of multilingual documents, which can be incredibly useful for those dealing with international cases. For legal firms that have an international footprint of their own, using machine translation to convert masses of legal documents into various languages quickly and easily enables them to focus on the key priority – achieving justice for their clients.

Enquiries into and uptake in machine

technology are surging. Online searches for ‘machine translation’ have increased 16 per cent in the last five years, while its related search term ‘machine learning’ has increased 135 per cent1. Over the last six years, UK-based translation provider The Translation People has experienced a 2,016 per cent increase in the volume of work it carried out with machine translation, while website enquiries for this service increased 1,130 per cent.

Accurate and efficient processes within the legal sector require a deep understanding of legal translation and terminology issues across different countries and thanks to state-of-theart machine translation technology now available, it is possible for translation providers to play a key role in streamlining the ways in which barristers work both in court and out of it. However, some barristers will consider machine translation with trepidation following several recent high profile examples of basic machine translation technology not being put to best use.

For example, a thread of tweets about Google Translate’s capabilities recently went viral and saw them accused of making sexist assumptions about gender neutral language2. There’s also been a study3 that suggests free translation tools contribute to significant misunderstandings of legal terms with conflicting meanings for some words. Meanwhile, after Amazon

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Machine translation centres on processing input and producing output.

Words, sentence structure, subject and grammatical information are all analysed, before being translated into the desired language. However, the accuracy of the output is determined in large part by the size of the language database sitting behind the machine.

The more bilingual material fed into the engine by base engineers, the better the result will be, whilst the quality of the output is also determined by the nature of the text, as some content types work better than others.

Direct and straightforward language – such as that found in instructions and user manuals – is well suited to machine translation with less input needed from linguists; emotive copy or complex language, such as that we see in legal documents, requires greater support from specialist, legal posteditors to achieve optimum results.

Within the legal field, customised machine translation engines should be developed for clients on an individual basis, with a legal language expert assigned to train the engine over time. This way of working enables the machine to achieve a greater understanding of legal terminology and language. If any element of a translation is incorrect, it’s spotted and edited by the translator. These edits can be used over time to train the machine not to make the same mistake again in the future, driving a continuous improvement in its output, achieving a more efficient process and greater accuracy in output. Where large volumes of documents are received in a different language, raw machine translation can be used to create a first draft of the translation to determine which documents may be needed as a priority. Those which require greater input from a human translator will then receive a full post-edit, to achieve 100% accuracy in output for the client.

Machine translation must be carefully

applied and not used in isolation as part of a blanket approach to translations. Currently, there is no universally agreed-upon or standardised approach to machine translation to help ensure accuracy across the board and, until that happens, the technology will always benefit from the expertise of a human translator. Not taking this step can lead to errors which, given the high stakes barristers work in every day, is something that can’t be risked.

Additionally, given the sensitivity of much of the materials used or presented in court, and the need to meet the individual regulations of parties located around the world, barristers should utilise technology which places security and data protection central to their processes.

Banks and intelligence firms, for example, are prohibited from sharing information or transferring it without permission; if their data is to be translated for use in other languages, they will require assurances which prove a translation provider is taking all necessary steps to keep the information protected and confidential.

Machine translation can support in this. Using a free, online tool typically involves having to input client data to a cloud storage space where it’s combined with translations from other businesses and firms. All these materials are then utilised to improve

the engine’s overall capabilities, so such a platform would be unsuitable for barristers translating confidential data or materials. However, reputable translation providers will arm their machine translation technologies with secure data technology, offering clients dedicated storage of their materials to eradicate the risk of data breaches and the revealing of highly sensitive information.

Ultimately, legal firms and barristers should work with a translation provider that collaborates to understand the scenarios where machine translation would be a benefit, and where human input is required, depending on the type of text and language combination required. Many legal texts may not have their objectives met with machine translation solution at all; in this case, clients would save time and money by having an expert, human translator work together with them in a more manual capacity, rather than spending several weeks or months nurturing a machine system, which requires quality time and expertise being invested to achieve optimal results. Assuming machine translation will work perfectly every time is to risk materials becoming erroneous, and therefore risk a positive outcome of a case. As experts, we’re on hand to ensure every situation is handled as a bespoke requirement, with the most suitable processes and procedures applied individually based on the potential of

their outcome.

Machine translation will continue to become more sophisticated in its capabilities as time goes on. However, today, a true consultative approach, combining machine technology with human expertise can achieve excellent results for clients translating material that can’t be anything less than 100 per cent accurate. And as societies become more multilingual, and businesses continue to expand, whether a barrister is working on a criminal, civil or commercial case, machine translation is going to become a routine part of every day. Making it a part of a strategy to set your stall as the firm that takes personal service most seriously, will pay dividends in the long run.

Alan White, Business Development Director at The Translation People -------------------1 https://explodingtopics.com/topic/machinetranslation 2 https://www.indy100.com/news/googletranslate-language-sexist-b1820580 3 https://www.itnews.com.au/news/googletranslation-ai-botches-legal-terms-563558

4 https://www.theguardian.com/ technology/2020/oct/29/amazon-hitstrouble-with-sweden-launch-over-lewdpussy-translation

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Defendants’ rights to a fair trial may be compromised unless the Government invests in the criminal defence sector

By Tony Wyatt, Associate Counsel at Ewing Law and best-selling crime author under the pseudonym Tony Kent

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eventeen years ago, as a young barrister, I was lucky enough to represent the South Eastern Circuit on The Florida Advocacy Course. Along with three other juniors, I made my way to Gainesville, Fl. and spent a week conducting mock trials and advocacy exercises alongside over one hundred public defenders and states attorneys.

There are many stories that arise from that week. Almost all of them positive, with some of them…probably untellable, even now. It was a unique experience and undoubtedly the most enjoyable way to meet my New Practitioners CPD requirements. Seven days of fairly effortless fun for me and my British-based colleagues, and an opportunity to make connections in the US that stand to this day.

system and criminal justice in England and Wales.

Back when I took this trip the cuts to our own criminal justice system had already begun to accelerate. But they had not yet had the impact we see today. And so, at the time I was making this comparison, it was from a point where our home criminal practice was still close to its best.

Our US colleagues, unfortunately, could make no such claim. They were already operating in a system where both the

But above all else what those seven days proved was enormous enlightenment. And not, I am afraid to say, enlightenment that fills me with confidence for the future of criminal practice in England and Wales.

Before boarding the plane I knew little of the US criminal justice system. Shamefully, even that came from TV and film and John Grisham novels. I had done no research; in my defence, I had a burgeoning junior practice which took up essentially every hour of every day. Or, in other words, I was just another junior barrister doing exactly what we all do. And so I was extremely surprised, upon arrival, to learn how criminal law really works across the pond.

I take no pleasure in providing too negative a critique of that we found on the first day and of what was confirmed as the course progressed.

Suffice it to say, the ability of those who were supposed to be our ‘peers’ - of the state attorneys and the public defenders, all of whom were senior in terms of years in practice than me or the other three barristers - was not what we would have demanded of even the greenest of criminal practitioners back home.

I should make it clear that this gulf and it was a gulf - was not the result of some innate difference in natural talent. Certainly there was some of that. But in the main it came from the stark contrast between the American

prosecution and the defence was, in most cases, provided by the State. And so they were operating in a system where lawyers on both sides were under-funded, under-resourced, underpaid, under-motivated and - to cap off that fatal combination - fundamentally over-burdened.

Sound like anywhere we know in 2021?

The result of the differences between the two systems was unmistakable.

The Brits, self-employed and reasonably paid, were used to having conduct of their cases from an early stage. We might not ultimately be trial counsel on every case we prepped, but we always assumed we would be. And so we would advise and prepare and draft and make everything case ready, all with the guaranteed sterling support of properly funded solicitors. We would get to court trial ready, with one case to defend or to prosecute, having had

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ample time to properly prepare our client and ensure that if a plea were to be entered, it would generally have been entered at the right time, i.e. the earliest opportunity.

Read through that again now, in 2021.

Read through what we used to be able to do in even publicly-funded work; the world-class, private-level service we used to provide. That system was in place to ensure that even the poorest amongst us had access to the very best the criminal justice system had to offer.

Now compare that to the American system we encountered. Because as I said above, the gulf in ability was not about talent. It came because of the inequitable, fundamentally flawed US system. Unlike us, our US counterparts did not have the luxury of self-employment and decent payment. Those two factors which allowed us to focus so intently on each and every case were denied to them, because as state employees they had to deal with whatever caseload they were given with nothing like the resources required to do so properly. This alone made it impossible for them to properly prepare their cases before court, and nor could they have the confidence that some competent colleague had prepared it for them; if anything, they could be sure that the opposite was true.

The experience of our American peers, then - defence and prosecution - was turning up to court under-prepared and over-burdened with far too many cases on any given day. The result of this is inevitable: poor representation and so a lack of confidence from a client who - when offered the chance to avoid the risk of conviction by pleading to a lesser offence that would guarantee a tenth of the sentence (the result of the still-bizarre US practice of plea bargaining) - would jump at that lifeline, guilt or innocence be damned.

With this being the common outcome, where is the trial experience going to come from? How can we expect the same level of expertise and skill from lawyers who had collectively, amongst thirty of them, conducted fewer jury trials than I alone had personally defended at only three years call?

(For those doubting that statistic, it’s

actually 100% accurate. We did the count!)

Seventeen years ago, then, I flew home with absolute confidence in our criminal justice system. Sure, it wasn’t perfect. But just look at the alternative.

Well, it seems to me that someone did look at the alternative. And that someone shamefully saw a system to which they aspired. This is why England and Wales are closer to ‘US justice’ in 2021 than we have ever been.

Some would argue otherwise, of course. The Public Defender Service exists, they would say, but it has yet to take off. Most accused are still defended by the self-employed bar and by independent solicitors, they would posit. And that is true. But it is also misleading. Almost two decades of cuts have seen to it that in every other respect, those who cannot afford to pay privately for their defence now face a level of representation that - whilst still ahead of what the poorest would expect

in the US - is now running America far too close. It is for this reason that I personally work so closely with private criminal defence specialists Ewing Law; because only for privately paying clients are the necessary resources still available to ‘defend at all costs’.

With fees cut to the bone, publicly funded defence lawyers - both solicitors and barristers - are now working on a shoestring. Where possible they will still provide the very best representation they can; thankfully there are many still left from the ‘good days’ who will not allow themselves to do their job any other way. But pure determination and an understanding of professionalism can only carry them so far. With the threat of insolvency or bankruptcy hanging over far too many heads, how long can dedicated practitioners’ drive to defend be expected to overcome the financial reality where - for publicity-funded work - only ‘stack em high’, ‘volume over quality’ can pay the bills?

the ‘good days’ are gone? When all that’s left is the minuscule amount of newer recruits, lawyers who have only seen the ‘bad times’ and the ‘bad ways’?

The direction of travel could not be clearer. Publicly-funded firms are disappearing at a shocking rate and, as sad as it is to admit this, the two-tier system already exists. All because some faceless mandarin with zero experience of a courtroom decided to emulate the US ethos of ‘Justice for the Rich and Just This for Everyone Else’.

Is it too late to stop this rot? Who knows. But while some of us still remember the ‘good days’, should we not at least try?

Tony Wyatt, Associate Counsel at Ewing Law and best-selling crime author under the pseudonym Tony Kent

And what about when those who knew

The Bribery Act: The First 10 Years Ten years after it came into force in the UK, John Binns and Umar Azmeh of the Financial Crime team at BCL Solicitors LLP, review the performance so far of what has been called ‘a landmark of legislation’, including its most important innovation – the ‘failure to prevent’ offence.

Powers in Cases of Bribery of Foreign Officials) noted that the law was “fragmented and out of date and needs to be reformed.”

Introduction The Bribery Act 2010 (the ‘2010 Act’) received Royal Assent in April 2010 and came into force on 11 July 2011.

Its 10th anniversary gives us a good opportunity to reflect upon the impact that it has had within the criminal justice system, with one eye to the future as it becomes more entrenched and even inspires other legislation.

Whatever its effects, it is certainly clear that it modernised the UK’s out-dated corruption laws, which had not been updated for almost 100 years, and which clearly struggled to deal with more modern iterations of bribery and corruption.

Background to Reform Prior to the 2010 Act, the law of bribery comprised various common law offences, including event-specific offences such as embracery [bribing a juror], attempting to bribe a privy councillor, and attempting to bribe a police constable, along with a number

The OECD had also been critical of the UK’s bribery and corruption laws, describing them as being “characterised by complexity and uncertainty” (OECD Phase 2 Report on the Application of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions).

of statutory offences. The most significant statutes were the Public Bodies Corrupt Practices Act 1889 (the ‘1889 Act’), the Prevention of Corruption Act 1906 (the ‘1906 Act’), and the Prevention of Corruption Act 1916. A UK Government Consultation Paper in 2005 (Bribery: Reform of the Prevention of Corruption Acts and SFO

•

Issues with the previous law (as highlighted by the Law Commission in its Consultation Paper, No.185, Reforming Bribery (2008)) included the following:

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The distinction between public sector and private sector bribery: the law drew a distinction between bribery in the public and private sectors. The 1889 Act was concerned with public sector bribery (members, officers and servants of public bodies). The

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bribery cases, due to the identification principle. The offence contrary to section 7, removes that hard requirement, along with effectively reversing the burden of proof in connection with its defence. However, far from the expected slew of corporate convictions for the offence contrary to section 7, there have only been two companies convicted of that offence: Sweett Group PLC and Skansen Interiors Limited.

1906 Act was concerned with general bribery of both public and private sectors actors. There was also a presumption of bribery in cases in which a public official and an individual seeking a public sector contract were engaged.

Whether such a presumption, along with the public/private distinction, was necessary or desirable was open to question.

•

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Incorrect statutory charges: Although the 1889 Act was restricted to public sector bribery, it confusingly did not cover all cases of bribery where the defendant worked in the public sector.

Terminology: The 1889 and 1906 Acts used different terminology.

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Definitions: The 1906 Act noted an agent as any person “employed by or acting for another”, a definition criticised for being vague; and both the 1889 and 1906 Acts failed to define “corruptly,” a term used in both statutes.

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Extra-territorial application: Until the Anti-Terrorism, Crime and Security Act 2001, it was not an offence for a British national or a UK-company to commit bribery abroad.

The Law Commission noted that any reform of the law ought to apply the principle of equal treatment, i.e. those in the private sector ought to be held to the same standards as those in the public sector; any new law ought to comply with the UK’s international obligations; any new offence(s) must be as clear and simple as possible; any new offences must not distort the operation of other well-established offences, e.g. competition law offences; and simply immoral conduct must not be criminalised. What ought to underpin the offences were breaches of loyalty and good faith.

Prosecutions (and Deferred Prosecution Agreements) relating to the 2010 Act One of the objectives of the 2010 Act was to pursue companies that were engaging in bribery, either actively or, effectively, by ‘turning a blind eye’ to prohibited behaviour. One manner in which the 2010 Act sought to do this was with the offence contrary to section 7, namely failure to prevent bribery, with a defence of adequate procedures. Prior to the 2010 Act, it was extremely difficult for a prosecutor to prove corporate criminal liability in

Statistics within the criminal justice system are somewhat difficult to obtain. However, in 2020 and in response to a Freedom of Information request, the SFO revealed that it had taken 5 cases under the 2010 Act to Court (excluding DPAs), and in 2019 it was revealed that the Crown Prosecution Service had instituted criminal proceedings in 16 cases under the 2010 Act. Hardly the flood of cases that was perhaps envisaged as part of a revamped drive to tackle bribery and corruption There has, however, been more success from the 2010 Act where Deferred Prosecution Agreements (‘DPAs’) are concerned (under the Crime and Courts Act 2013). There have so far been nine DPAs that have involved the offence contrary to section 7 of the 2010 Act: Standard Bank PLC (2015); Sarclad Ltd (2016); Rolls Royce PLC and Rolls Royce Energy Systems Inc (2017); Guralp Systems Ltd (2019); Airbus SE (2020); Airline Services Ltd (2020); Amec Foster Wheeler (2021); and two involving as yet unnamed companies (2021). The total sums ordered by the Court to be paid under those DPAs exceeds £1bn.

It is worth noting that the DPA regime potentially provides the best of both worlds for companies and prosecuting authorities alike. As far as companies are concerned, they are able – even in circumstances where they would almost certainly be convicted – to admit wrongdoing and avoid a criminal conviction, with all of the negative consequences that would follow e.g. prohibitions on public procurement contract tenders, and reputational damage. Prior to the 2010 Act, the company would either have had to plead guilty or take the case to a jury – if convicted, that would have been on the basis that a ‘guiding mind and will’ had committed the offence. The company is effectively permitted to take a commercial decision on a potentially criminal matter. As far as the prosecutor is concerned – thus far just the SFO – it is able to pass significant investigative costs onto the company, avoid the vagaries of a jury trial which may – as it has done in the case of every individual it has prosecuted where a DPA has been awarded to a company – result in acquittal, and also obtains significant financial penalties and its costs where appropriate.

Section 7 – A Template?

In 2017, the Ministry of Justice published a Call for Evidence on

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Corporate Liability for Economic Crime; however, the evidence submitted in response was considered inconclusive.

In November 2020, the Government asked the Law Commission to examine the issue again and to publish an Options Paper providing an assessment of different options for reform. The Law Commission intends to provide that Paper by the end of 2021.

Meanwhile, the Law Commission published its Discussion Paper in June, the responses to which will influence the Options Paper.

Effectively, the central considerations of the Paper are whether, and how, the law relating to corporate criminal liability can be improved so that it appropriately captures and punishes criminal offences committed by corporations, and their directors or senior management. As part of that process, it will be considering to what extent the ‘failure to prevent’ offence can be applied to other types of socalled ‘economic crime’, such as fraud, committed by an employee and from which a company might benefit, this template has already been deployed in the Criminal Finances Act 2017 in the offence of failure to prevent the facilitation of tax evasion.

Assessing Success Clearly, the 2010 Act has its influential supporters, and has both changed attitudes and raised revenues for HM Treasury. But perhaps its most important criteria of success are also the hardest to judge. The question of whether incidences of bribery are now more likely to face justice rather depends on whether DPAs are included within that term; otherwise, it is surely hard to make the case that they are.

What about the question of whether the 2010 Act has genuinely prevented bribery? We might hope that, ten years into the life of the 2010 Act, contracts are now granted on a fair basis without the need for bribes. A cynic might doubt whether either hope is realistic; they may wonder instead whether bribery methods have simply adapted to work around corporate procedures more effectively, thus making them harder to detect.

One of the drivers for the 2010 Act, and where perhaps it has been most successful, is in changing the perception of bribery, particularly in the corporate world. Whilst the 2010 Act has not led to a torrent of prosecutions, it has brought about a sea change in how corporates consider and mitigate against bribery. This may, ultimately, be the most important change the 2010 Act has brought about.

John Binns is a partner and Umar Azmeh an associate in the financial crime department of BCL Solicitors LLP.

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Diversity at the Bar Employment law barrister Ben Williams is an Equality and Diversity Officer at Kings Chambers. Here he tells us more about what the role involves and why the Bar must continue to make strides in seeking a truly representative profession.

E

mployment law barrister Ben Williams is an Equality and Diversity Officer at Kings Chambers. Here he tells us more about what the role involves and why the Bar must continue to make strides in seeking a truly representative profession.

I have now held the EDO role in Chambers for approximately eight years, although I have now thankfully, been joined by another member of Chambers, Anisa Niaz-Dickinson who has helped set up the Equality, Diversity and Inclusion team in Chambers. Whilst it is no coincidence that both Anisa and I are employment team members, such a background is by no means a prerequisite for the role. Most people know that the overall aim of our role is to reduce workplace discrimination, but I suspect most people do not know what that actually entails in practice.

Years of outdated practices In the context of the legal profession, and specifically the Bar, there are years of outdated practices to unpack and this was always going to be a complex task. It is plainly a long path to walk.

The Bar ought to be an attainable profession to all – in truth, it is not.

This is something that saddens me, but also worries me greatly. A key strength to a successful Bar, like a successful judiciary, is one that is representative.

This does not mean compromising on standards in any way, but it does mean that the profession has to continually look to ways it can improve. In my view, each Chambers has a part to play also. This is not idealistic, but realistic.

The question is how we can do this.

At Kings we have been asking this question of ourselves for some time. We do not profess to know all the answers, but we do acknowledge that there is plenty we can be doing. It starts with internal Chambers processes and procedures. Having a dedicated EDO is but one part of this.

This means that there are various aspects to the role of EDO on any month to month basis, including reviewing staff and member policies; dealing with general and specific employee related enquiries; recruitment of staff and pupils; organisation of the ED&I team

meetings and assisting in any relevant initiatives or events that we may run or partake in. It is also essential that we keep up to date with any Bar Councilled updates and circuit initiatives. It is a time consuming role and would not be possible without the team ethos that Chambers encourages. I am very fortunate to have a proactive Chambers’ Director and Compliance Manager who ensure that we properly diarise events and tasks. Without them it would simply not be possible to do the role effectively.

Regular reporting on Equality and Diversity It is equally essential that the managing committee of Chambers, led by our Head of Chambers, is able to dedicate time to E&D matters generally and specifically. I have been fortunate that this has been a consistent pattern of support for me in Chambers and that the current Head of Chambers has made further improvements, always looking to build on his predecessors excellent work. By way of illustration, to ensure consistency across Chambers, both EDOs are now members of the Executive Committee in Chambers and report back on E&D at every meeting.

It is this systemic approach that is essential to ensuring Chambers works as one to improving E&D across the organisation as a whole. It also means that Chambers can look beyond its own organisation to assist the profession as a whole.

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10,000 Black Interns Initiative On this note we have been looking to a number of superb initiatives that we might be able to endorse and assist with. One such initiative is the 10,000 Black Interns programme.

This initiative seeks to offer 2000 interns each year for five years and has partnered with a number of organisations from different sectors.

It is but one superb initiative which we as a Chambers feel can only breed positive change for the profession. I am delighted to say that there are many more excellent examples of projects and initiatives out there, whether they are run by third parties, the Bar or the various Circuits. This has been one of the clear improvements I have seen in recent times. It never ceases to amaze me what incredible work is being done and it has made it difficult for us to determine which we can join without spreading ourselves too thin.

This only gives a snap shot of the types of things that I am involved with as Chambers’ EDO. I would say that anyone wishing to undertake this role would be wise to ensure that they have sufficient time set aside to enable them to embrace it fully. The truth is that, because of the clear need for everyone to play their part in improving equality and diversity at the Bar, the role requires a good deal of time and effort. I suspect that it is rarely a one person role, regardless of the size of Chambers. That said, the role is extremely rewarding in that I

am but a small part of the drive for essential change at the Bar, and in society generally.

Using privilege in a positive way I am not immune from the obvious irony of a white male preaching about the need for change, however, it occurs to me that I am able to use my privilege in a positive way and that no single Barrister is any less qualified than the next to do this role. For my part, this role can routinely take you outside of your comfort zone and that is a positive thing. It is uncomfortable to address certain topics such as race, ethnicity, sexual orientation or disability, for they can be difficult and emotive topics to approach. I do not profess to have any of the answers to the hurdles such protected characteristics may present, but I do know that through the hard work of our team here, we are in a position to improve our awareness of the same and work towards reducing the risk of such discrimination, whether it be conscious or not.

It is fair to say that the profession as a whole has made great strides in what is now a positive approach to equality and diversity. Whilst I was initially uncomfortable about holding this role

as someone who, frankly, epitomises the look of the typical ‘lawyer’ in many people’s eyes, I recognise the need for everyone to play their part. As an employment lawyer who deals with the concept of discrimination regularly, and as someone who therefore sees both the good and bad in respect of the same, I consider that I have plenty to contribute. I think that works perfectly when I have another experienced employment lawyer alongside me, offering an entirely different perspective at times. This can only add to the strength of Chambers’ approach to ED&I. Positive role models Despite the fact that the Bar is becoming evidently more diverse we also acknowledge that there is a long way to go yet. By having a cohesive structure in Chambers we feel that this is the best way to perpetuate such diversity and equality. Aspiring Barristers need positive role models to look to and to relate to. I am proud to say Chambers has such role models at all levels of seniority, as does Circuit as a whole. I am certain that there will be continued improvements and I am equally certain that my Chambers will be at the forefront for the same.

We must never become complacent. I know this is a view shared by my Head of Chambers who has been extremely supportive of our ED&I team. Whilst I have seen vast improvement overall, there is clearly still a long way to go in seeking a truly representative profession. This will in turn, have a domino effect on a genuinely representative judiciary. The Bar has been honest in acknowledging the lack of diversity and this of itself it an essential component for achieving change. You must acknowledge the problem and then look to tackle it in as many ways as you can. It is not simply about having more women or more ethnically or racially diverse Barristers; it is also about helping achieve a profession to which all people can aspire to join. I know that this is still some way off, but every positive change is a step forward.

Ben Williams, Equality and Diversity Officer at Kings Chambers

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27

University discipline hearings – will universities learn from past mistakes and make changes, and is there a role for barristers?

By Nick Hawkins, barrister, Normanton Chambers

A

lmost 50% of 18-year-olds move on to university on leaving school or college. Statistics from Universities UK show that there were 2.38 million students attending 165 Higher Education Institutions [HEI]1. Each of these 165 institutions have their own statutes, policies, and procedures and significantly their own discipline hearings.

There have been a number of high-profile cases involving allegations of sexual misconduct both physically and through social media that have not been handled well by universities, even though individuals involved have acted with integrity. In a number the perceived interests of the universities have been put before the interests of the students involved ultimately causing reputational harm to the university, but more significantly real trauma to victims. It is the view of the author that the time has come for barristers to play a more significant role.

It is likely that most lay people would think that student discipline concerns itself with academic misconduct and low-level misbehaviour in the student union bar and sports clubs. Whilst this is true, universities also deal with serious offences that, if reported to and investigated by the police, could end up in the Crown Court resulting in prison sentences.

If the person on the Clapham omnibus would be surprised to hear that university disciplinary hearings deal with allegations of non-consensual sex, they would be even more surprised to hear how the allegation made its way to a hearing and to hear how the hearing was conducted.

I have worked with a number of universities advising senior

members of university staff on policies and procedures for misconduct hearings as well as training panel members. I have reviewed investigations carried out by university staff and carried out by skilled external investigators.

However, I have never appeared at a university misconduct hearing!

This might cause the reader to question my credibility. How can a barrister who has never appeared at a tribunal write about that tribunal? This would be a valid question if the author were writing about (e.g.) hearings involving medical or accountancy professionals. But the difference in this scenario is that barristers do not routinely appear at university misconduct hearings.

It is worth looking at the relationship between students and universities. Legally the relationship is a contractual, rather than employment, relationship.

Students sign a contract on joining a university and, as well as agreeing to pay fees in return for tuition, they agree to a term in the contract that will require them to abide by all university statues, rules policies and procedures.

The landscape is complicated by the fact that each HEI has its own unique set of rules.

Pulling all of this together, a student will have signed up to following all policies including a sexual conduct policy and will have signed up to the disciplinary framework which the particular HEI has in place. It is highly unlikely that this was at the forefront of the students mind as they excitedly said farewell to parents.

Three things that feature in many young students’ lives are alcohol, sexual adventures, and social media. For most young people at university their three years pass without a serious incident. Sadly, for a small minority, things go badly wrong, and students involved

28 the barrister Michaelmas Term 2021

in the university disciplinary process.

Whilst no two cases are the same and whilst I in no way wish to stereotype a typical case will involve two students who are likely to have consumed alcohol. They meet and strike up a conversation or dance together. They then return to one or others’ room and some consensual sexual activity takes place. Full sexual intercourse then takes place but one party [hereinafter referred to as the reporting student] alleges that the other party [the reported student] had sex without their consent.

All HEI’s have a reporting mechanism, and all will provide support to the reporting student, who will be informed that they could report the matter to the police. Many chose not to and ask the university to investigate. Most investigations are carried out by university employees with a very small minority handed over to outside specialist investigators who are typically ex police detectives with extensive experience.

University investigators come from a variety of backgrounds within their institutions. The author has seen cases investigated by security staff, HR staff, academics and even PR staff. Very few have had any general investigative training and virtually none will have had training on investigating sexual offences or dealing with vulnerable witness.

After an investigation, in which the reported person may or may not give an account, a decision is made on whether to proceed to a disciplinary hearing. It is worth noting that the reported person does not have the right to legal advice during any interview, even when under investigation for serious sexual misconduct.

The decision maker does not have the benefit of a document such as the Code for Crown Prosecutors2 to assist in helping them reach their decision in a structured way but will make their decision based on what feels right and fair to them. As many cases will be a word-on-word case this is a challenging decision to make, although it is not uncommon for there to have been social media chatter about the alleged incident or about previous contact between the two students.

If the case goes to a hearing it will be conducted in accordance with the particular rules of the institution.

Although broadly similar there is no gold standard laid down by the regulator of universities (the Office for Students) nor by the complaints body (the Office of the Independent Adjudicator). Both bodies have issued guidance but neither has issued a set of model rules to govern investigations and, disciplinary hearings.

In practice a hearing will be before a panel of 3 members of staff. The case will be presented by a university member and the reported student may have the assistance of another member of the university.

This is where a real anomaly arises. If the reported student knows a legally qualified member of the university they can ask them for assistance, but they cannot ask for counsel of their choice3. If a reported student does have legal assistance there will be an inequality of arms as the presenting officer is highly unlikely to be legally qualified, and even if they are, may have no experience of adversarial proceedings requiring high level advocacy skills. To make things worse the Panel are unlikely to have the benefit of a legal adviser – in contrast to both Magistrates in criminal courts and most professional discipline bodies.

know they are only as good as their evidence and many current investigations miss evidential opportunities.

The second thing is for universities to review their policies and procedures and barristers with experience of professional discipline are ideally placed to assist.

The third and most important change is for universities to change their rules to allow for legal representation for both parties and legal assistance to the Panel. This should only be reserved for the most serious allegations and for matters that carry the most serious sanctions, but it should be possible to draft a set of rules that set this out clearly and fairly.

To conclude, universities want to do the right thing but need help. The interests of universities and their students will be best served by modernising disciplinary rules and involving the professionals.

Anything less risks more ruined lives.

Nick Hawkins Normanton Chambers ---------------------https://www.universitiesuk.ac.uk/facts-and-stats/Pages/highereducation-data.aspx 2 https://www.cps.gov.uk/publication/code-crown-prosecutors 3 If a barrister was studying for a part time LLM they would have rights of audience in their university but would lose them upon graduation!

4 R(Zahid) v The University of Manchester and the Office of the Independent Adjudicator for Higher Education [2017] EWHC 188 (Admin) 1

The potential for mistakes by well-intentioned people involved in such hearings are almost self-evident. The consequence of mistakes ruin lives – an unjustified adverse finding can stop the career of a student before it starts, whilst an unjustified finding that the allegation is not proved causes further trauma to an already vulnerable victim.

If you were the parent of the reporting student you would want the case professionally investigated and presented by a lawyer with appropriate skills, knowledge, and experience. If you were the parent of the reported student, you would want appropriate legal representation of your choice. If you were a Panel member you would want the benefit of legal advice during the hearing. Yet many universities’ rules actively prohibit this ideal situation.

It is highly likely that there is a judicial review waiting to happen, and it is clear that universities are subject to judicial review as quasi-public bodies4. So, what can be done to prevent this and where do barristers fit in?

The first thing is for universities to hire or employ competent investigators to carry out the investigation.

Barristers who present cases in courts and tribunals

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29

Racial Inequality in Maternity Care Action Needed

By Olivia Boschat, Associate Solicitor in the Complex Injury team at Bolt Burdon Kemp

The Evidence There has been repeated evidence of racial inequality and injustice in maternity care in the NHS for many years. Strikingly, there is a clear link between the number of women dying during and following pregnancy, and their racial background.

Most recently, racial inequality has been demonstrated by MBRRACE (Mothers and Babies: Reducing Risks through Audits and Confidential Enquiries across the UK). MBRRACE audits and confidentially reports on issues affecting mothers and babies in the NHS and across the UK. The most recent report considers maternal deaths. The report considered the factors that lead to maternal death in the UK, reviewing statistics between 2016 and 2018, including the 566 women that died during or up to a year after their pregnancy. The report released in January 2021, found that there were many different biases that led to maternal death in these cases. Belonging to a minority ethnic group was a significant factor. When compared to white women, during, or

in the year following, childbirth: • • •

Asian women are two times more likely to die; Mixed ethnicity women are three times more likely to die; and Black women are four times more likely to die

Heart disease is the leading cause of death, followed by thrombosis and blood clots. Maternal suicide is the fifth most common cause, either before or after birth. The amount of maternal deaths in women who have involvement from social services in their lives is also increasing. These statistics are based on data collected before the pandemic, but it is likely that Coronavirus will have made things even worse because of the lack of face to face services available.

As remarkable as these figures are, this isn’t new information. Racial disparity in maternity services has been known for a long time.

Investigations into Maternity Units A number of investigations have

30 the barrister Michaelmas Term 2021

been carried out considering maternity services across the NHS. An investigation into the maternity services at Shrewsbury and Telford Trust considered cases over a 40 year period and found there was a longstanding culture that is “toxic” to improvement. The investigation found that there was a failure to recognise serious incidents, with many families having to wait a long time to learn what happened during their care.

They found that there were long term failures to involve families in the investigations when serious incidents were recognised. When reports were carried out into serious incidents, the reports were brief and defensive. The duty of candour was not followed.

There was a catalogue of other concerns raised by the investigation regarding the treatment provided and the failures of the units to monitor patients.

The most concerning failure is the inability to learn from mistakes. This seems to be the consistent theme throughout maternity scandals.

These include the investigations into the maternity services at the Basildon University Hospital, Cwm Taf

Morgannwg Health Board and most recently the Worcestershire Royal Hospital. The news is littered with similar stories.

In 2020, the East Kent Hospital Trust faced a criminal prosecution for failing to provide safe care and treatment, resulting in the death of a baby boy.

The Trust was accused of failing to provide safe care, exposing the baby and his mother to significant risk of harm. The Trust plead guilty to a breach of regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. The Trust were fined over £1million. The Kent Police are also considering charges of corporate manslaughter.

The results from the series of investigations carried out in relation to maternity services has frustrated me enormously. These investigations show that lessons are not being learnt despite the NHS being made aware of such failures.

When clients come to me to investigate a medical negligence claim, the collective desire is to raise the failings with the hospital to prevent the same mistakes being repeated. My clients don’t want others to go through what they have.

What is being done Owing to the number of investigations and reports published highlighting the problems with maternity units, conversations are now taking place at the top table to try to resolve these systemic failings. This is in no small part because of organisations fighting tirelessly for the people suffering these injuries.

The charity Birthrights is determined to protect the dignity and human rights of birthing people. They fight to empower women by arming them with the necessary knowledge. They campaign to give women access to, and knowledge of, their human rights during a very vulnerable time in their lives. They campaign to make change.

Birthrights have recently set up a national inquiry into racial injustice in maternity care. This inquiry will investigate how racism in the NHS is impacting mothers and babies, and maternity care. The aim is to determine exactly what needs to be done at all levels to effect change.

‘Five X More’ is an organisation founded by two mothers determined to change maternal outcomes for Black Women receiving care in the NHS. Five X More focuses on empowering Black women to make informed choices and

to advocate for themselves throughout their pregnancies and after childbirth.

In 2020 a petition to the Government to change outcomes for Black Women had over 187,000 signatures.

The petition focussed on four areas: 1.

2.

3.

4.

To highlight to the government and those making decisions about women’s health, to be aware of the disparity in outcomes due to racial ethnicity and be aware of this when making decisions To promote education for the healthcare providers giving Black women information about their treatment options. The right information must be given so Black women can make informed decisions about their pregnancy and childbirth.

To improve mental health services for women of ethnic minorities and to make it more available to them To examine the role the NHS plays in maintaining the issues faced

by Black women e.g. quality of treatment, institutional racism and the ethnic coding systems used.

In response on 25 June 2020, the government has advised that they aim to understand why mortality rates are higher, consider evidence about what will reduce mortality rates and take action to improve equity in outcomes for mothers and their babies.

What more needs to be done In response to the MBBRACE report, the government confirmed the NHS is working to understand why death rates are higher for people from a Black or ethnic minority background. They plan to consider evidence about what will reduce mortality rates and take action to improve outcomes for mothers and their babies.

By 2024 the government aims to provide 75% of women from Black and ethnic minority background with continuity of care from their midwife throughout pregnancy, labour and the postnatal period. The government points to evidence that shows that continuity of carer models helps reduce pre-term births, hospital admissions, the need for intervention during labour, and to improve women’s experience of care.

more likely to die in pregnancy than white women. The latest MBRRACE report has found these numbers have now fallen to four times more likely.

These figures are completely unacceptable. Clearly more change is required to reduce these inequalities.

However, it is encouraging that these statistics have started to change in the right direction. The small improvements are likely to be due to a positive response to the previously horrendous figures and the Race Equality Taskforce.

The NHS has also acted by setting up a working group of women, families and healthcare providers called Maternity Voices Partnership. Together the aim is to review and contribute to the development of local maternity care.

All of this costs money. Funding is promised to support these changes but we must not rest. The conversation has been started, but there is a long way to go and a lot to be done to make permanent change.

I recently responded to the government’s consultation, Women’s Health Strategy: Call for Evidence. The government asked for ideas and input from individuals and organisations with the relevant expertise in the area to ensure that women are listened to and the ideas raised can be considered and incorporated into the new plan for England for women’s health.

As part of my firm’s response, I implored the government to listen to women and place their voices at the centre of their health and care review.

Never is this more important than before, during and after childbirth.

With each maternity scandal or news piece of an injured baby and damaged family comes more evidence of harm.

Behind each one of these statistics, is a grieving family whose lives have been changed forever.

Awareness and education are the first steps on a long road to bring about the change so desperately needed in the NHS maternity sector.

Olivia Boschat is an Associate Solicitor in the Complex Injury team at Bolt Burdon Kemp.

The Royal College of Obstetricians and Gynaecologists (RCOG) are also acting.

They have set up a Race Equality Taskforce, to tackle this enormous issue from the foundations. This is starting to bring positive change through awareness and training. The previous MBBRACE reports (2018 and 2019) found black women were five times

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31

Sexual Harassment in the Legal Profession – a review of the subject post #MeToo

By Rachel Lewis and Maria Strauss, Farrer & Co

T

he #MeToo movement shone a spotlight on harassment across all sectors, and the legal profession is by no means an exception. #MeToo, which brought rolling coverage of headline-grabbing cases, led to a general uptick in disclosures and complaints (quite often historic ones) about workplace sexual misconduct. In this article we explore the risk factors, the benefits of taking a preventative approach to harassment as well as other considerations when handling cases in law firms and at the Bar. How far have things come since 2017? The landscape has changed considerably in a short space of time, though some issues still remain.

Sexual harassment: risk factors in the profession In pre-pandemic days, our profession – in part at least – operated in ways which could prove fertile ground for a culture open to harassment: late nights, long hours and lone working; deal culture; parties, entertainment and alcohol; hierarchical structures and power differentials; ambition and authority. All these factors historically led to an environment where sexual harassment could occur, and indeed, become normalised.

The pandemic has brought new challenges for everyone in ensuring safe workplaces. Whilst the enforced migration to virtual (and now, hybrid) working has brought many benefits, sexual harassment too moved online and for those back in the physical office, fewer colleagues around means less staff to intervene when and if needed.

Taking a preventative approach Adopting a preventative approach is key. That has to be a priority, not least given recent media coverage of cases, disciplinary action by our regulators, reputational concerns and the damage to individuals who have suffered from harassment. Implementing steps to prevent sexual harassment does not require an overly legalistic approach and both law firms and the Bar will find practical guidance both in the EHRC technical guidance and a recent UN report on ending harassment and

changing culture.

•

The UN guidance in particular talks about the importance of high-quality, engaging and bespoke training, recommending an audit/culture check which we know many clients have done and have found useful in identifying issues. It also suggests training some individuals in appropriate ‘bystander interventions’ has proven effective in the military and university campuses, for example.

•

The consequences and risks of failing to take a preventative approach should not be underestimated.

For example, in a recent Employment Appeals Tribunal (EAT) case (Allay (UK) Limited v Gehlen), the EAT held that an employer could not rely on the “reasonable steps defence” to a claim (s 109 Equality Act 2010) because their training (on equality and diversity) had gone “stale” following a two-year period in which there was no refresher training provided.

Furthermore, where employers do not seek to foster a “speak up” culture (ie: where everyone understands the expected standards of conduct and individuals are confident to report issues), then cases will go undetected.

In the long run this might mean: • •

Issues not being reported for investigation; Lower-level sexual harassment potentially escalating to more serious or violent forms;

32 the barrister Michaelmas Term 2021

• •

complaints, grievances and Employment Tribunal cases; damage to reputation and press interest; the loss of clients or commercial partners; staff departures;

In July 2021, the Government published the outcome of a consultation into workplace sexual harassment that began in 2019. The consultation recommended a new legal duty on employers to “prevent” sexual harassment and further guidance on this new duty is awaited. It remains to be seen whether this will (or can) be a requirement with any real teeth, but the principle reflects the direction of travel in this respect.

Specific considerations in relation to case handling Sexual harassment cases can throw up a plethora of practical and legal issues.

First, due to the often sensitive nature of these disclosures, victims or witnesses may be reluctant to come forward. This can lead to delayed reports; years can go by before someone might make a disclosure. It is well known that a range of factors can contribute to delayed disclosures including fear of impact on careers, concerns about reputation and fear of not being believed. However, even historical cases should be investigated and proper process followed, including supporting those involved; conducting risk assessments where necessary

to prevent ongoing harassment and taking mitigating steps in response.

Secondly, in serious cases where a sexual assault may have occurred, the disclosures may well not always be made in a linear, logical fashion, which lawyers as managers can find particularly difficult and can lead to early doubts about the credibility of the allegations. However, disclosures should always be taken seriously from the outset. There is also an important distinction between receiving a disclosure of harassment for the first time versus being the impartial investigator appointed to establish the facts of the case.

In the UN report, a “victim-centred approach” is recommended at every stage in the process. This means ensuring that complainants are given as much control as possible, that they are advised about issues such as privacy and confidentiality as soon as possible, and taking a nonjudgemental approach. They should be kept informed of any actions (preferably before the actions are taken), ensuring that there is timeliness in communications and investigations, that victims are aware of specialist support (and likewise support plans should also be in place for those accused) and finally assuming neither guilt or innocence but starting from the possibility that what the victim is reporting may be true and carrying out a robust investigation.

Organisations should always follow their policies and procedures in the case of any complaint or allegation, as well as EHRC and ACAS guidance.

Whether the case is a recent or a historical allegation, these steps should help ensure fairness which in turn helps law firms and Chambers to protect their reputations.

Thirdly, language issues can be contentious. A range of terms are used in this sphere to describe the individuals involved in the case (accuser, complainant, victim, survivor and accused, perpetrator) as well as words to describe what happened (allegation, disclosure, report, case, testimony). We have found that language issues are important to iron out and should be consistent from the beginning; it is important to avoid potentially biased language.

will rarely be appropriate as even in lower-level cases there is likely at the very least to be a need to review matters with a focus on training needs and culture. Complainants should never be expected to resolve their complaints informally and directly with an alleged perpetrator.

•

•

Informal resolution. Whilst the response to a complaint of sexual harassment must be proportionate, informal resolution of complaints

Interviews. Problems also arise where interviews are not conducted properly and notes are not clear and thorough. In some cases an independent, external investigator will be appropriate particularly where the allegations are against someone very senior.

Independent lawyers can be good investigators or legal advisors may be helpful for ensuring a robust interview or drafting frameworks of questions. Good HR consultants are also used for their experience of procedures and familiarity with the ACAS code. More recently, we have used specialists from the area of sexual violence to conduct and support investigations and carry out interviews. They are generally experienced in meeting victims and bring a wealth of knowledge.

•

Reports. We have seen many examples of poorly drafted investigation reports which open the business to challenge. Consult the ACAS Code and Guidance and take advice on the report. Think about privilege – the report itself is unlikely to be privileged: advice on process and on outcomes may well be.

•

Flexibility. Terms of reference that lack flexibility can also cause problems. It is advisable to insert clauses into the terms of reference which give the investigation team, by agreement with the employer, the latitude to adjust the scope of the investigation, should that become necessary. Investigations should in some ways be responsive processes that have the flexibility to respond to new information.

Finally, investigations. The following issues tend to come up frequently in law firms and Chambers investigations: •

Failures in planning.

Investigations which are not properly scoped and planned can (and often do) go wrong. Project management is key, and it is critical to have a clear sense of the process that is being followed.

For example, will the investigator review records and documents first, or meet the complainant first?

•

Referring to regulators. In certain cases, reports may be made to Police and the professions’ regulators. Law firms and the Bar

should always be alive to the fact that the underlying complaints may be criminal and/or regulatory matters in which case care must be taken to liaise with those agencies to ascertain who will lead an investigation.

In addition, sexual harassment investigations can be particularly complex because: 1.

2.

serious sexual misconduct is often not committed in front of witnesses, although during an investigation it is useful to look through employee files or, when interviewing witnesses, look for indicators of behaviours which are relevant and might build a picture of someone who poses a risk; and anonymity crops up more commonly in sexual misconduct investigations. The reasons for witnesses seeking anonymity should always be carefully explored with them. ACAS advises that guarantees of anonymity should be avoided as they are likely to disadvantage the person who is the subject of the investigation on the basis that it is more difficult for them to challenge anonymous evidence - so care needs to be taken in this area.

Finally, non-disclosure agreements have been the subject of much press interest and the use of these has significantly changed in recent years as a result. The SRA issued a warning notice about the use of NDAs in March 2018 and recently updated this in November 2020. We have found that in settlement agreements, whilst NDAs/ confidentiality provisions are still present (and can still provide benefits to both parties), they should contain substantial exclusions allowing reports to be made to the police and others and for the purposes of seeking medical advice and talking to family about what happened. Care should be taken in relation to confidentiality clauses in the employment contract itself: we have seen examples of restrictive confidentiality agreements that do not contain all of the necessary carve outs.

Overall, we have seen huge progress in the landscape in the last few years in this respect. Having sexual harassment issues at the forefront of our collective minds is critical and has led to behaviours being called out at an early stage. Knowledge and training are key – but we cannot be complacent: there is still a way to go and progress to be built on the steps already taken.

Rachel Lewis and Maria Strauss Farrer & Co

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33

Corporate crime and the regulatory approach Corporate criminal liability has been transformed beyond all recognition, with companies now having to behave ‘responsibly’ or face not merely reputational damage but criminal prosecution and punitive fines.

Tom McNeill, senior associate at BCL Solicitors analyses the current position and identifies the corporate risks.

C

orporate criminal liability has been transformed beyond all recognition from what it was just 15 years ago. Not only have fines increased very significantly, the expectations placed on corporates have changed fundamentally.

Companies are now expected to behave responsibly. That doesn’t just mean doing no wrong, it means preventing others from doing wrong.

And if they do not, they risk not merely reputational harm but criminal prosecution and highly punitive fines.

Background A key change has been the growth and development of the ‘regulatory’ approach.

Traditionally, the most serious offences were ‘mens rea’ offences. These offences require proof of the relevant mental element (e.g. knowledge or intention) as well as the relevant act.

Regulatory offences, previously seen as less serious, are to the effect that if the proscribed thing happens, or the required thing does not, an offence is committed, and it doesn’t matter whether an organisation meant it or even knew about it.

Sometimes regulatory offences have a due diligence provision – so that it wouldn’t be an offence if the person did all they reasonably could, but the proscribed thing still happened.

However, it is the nature of regulatory offences, even those with a due diligence defence, that they’re easy to commit and difficult to defend.

Identification doctrine It’s hard for companies to commit mens rea offences because it typically requires a directing mind, usually a director, to commit the offence which is then attributed to the company.

Often directing minds aren’t involved with the relevant conduct – sometimes not provably so.

Legal scholars used to query the justification for fining corporations,

effectively the shareholders, for conduct they might not have approved or been aware of i.e. of which they were innocent.

It was also doubted that the shareholders would be moved (or be in a position) to take steps to address the offending. In any event, it was thought curious reasoning that an innocent person should be punished in order to compel him to do something which the law could do directly.

In more recent years the concern became that identification doctrine was shielding companies from criminal liability. The response has been the extension of the regulatory approach to mens rea offences.

Failure to prevent In 2010, the UK introduced a failure to prevent bribery offence which makes commercial organisations criminally liable if a bribery offence is committed by an ‘associated person’ – a very broad term that could include subcontractors or suppliers – so long as that person intended a business advantage for the organisation.

34 the barrister Michaelmas Term 2021

There is no minimum level of culpability – the draft bill required proof of negligence, but that requirement was removed during the legislative process.

It doesn’t matter if no one within the company knew about the offending or the organisation did gain an advantage.

The only defence for the company is to show that it had adequate procedures to prevent such conduct.

In other words, commercial organisations are made criminally liable if someone else commits an offence, subject to a defence which requires them to prove that they did all they reasonably could to prevent the offending.

In 2017, a failure to prevent the facilitation of tax evasion offence was introduced, in similar though not identical terms. There is currently an ongoing Law Commission review which is considering extending the offence to other economic crimes, such as fraud, false accounting and money laundering.

FCA-regulated persons are already subject to substantial ‘regulatory’

(i.e. non-criminal) penalties that are frequently higher than those imposed by the criminal courts,1 including for shortcomings in anti-money laundering controls and for failing properly to assess, monitor and mitigate the risk of financial crime.

Deferred Prosecution Agreements Introduced in 2014, DPAs have dovetailed perfectly with the failure to prevent offence.

Under a DPA, a prosecutor will lay but not immediately proceed with criminal charges against an organisation, pending successful compliance with onerous conditions including a punitive financial penalty and measures to prevent future offending.

Applying to various financial crimes (which often do not have the selfreporting structures that exist in a number of regulatory contexts), it incentivises corporates to self-report early and unreservedly with a view to avoiding a criminal conviction and securing a quicker and more certain conclusion than a lengthy investigation and prosecution.

With failure to prevent offences very difficult to defend – and in any event for reasons of commercial certainty – a number of organisations have pursued the DPA route. Nine of the twelve DPAs agreed to date have concerned bribery offences.

Since their introduction, DPAs have collected £1.67 billion for the Treasury.

Size of fines At the same time that the regulatory approach is being extended, punishments for regulatory offences have been significantly increased.

One factor in this increase is that fines now much better account for the financial circumstances of the organisation – large companies can now expect large fines.

But the more fundamental change is that regulatory offences are now treated much more seriously, even when failings are merely systemic.

There was a time when it was considered that the criminal law should not concern itself with companies trying to do the right thing – guidance and instruction were thought more appropriate.

The Robens Report, which underpins the UK’s health and safety law, set out the reasoning:

“The fact is – and we believe this to be widely recognised – that the traditional concepts of the criminal law are not readily applicable to the majority of infringements which arise under this type of legislation. Relatively few offences

are clear-cut, few arise from reckless indifference to the possibility of causing injury, few can be laid without qualification at the door of a particular individual. The typical infringement or combination of infringements arises rather through carelessness, oversight, lack of knowledge or means, inadequate supervision or sheer inefficiency.

In such circumstances the process of prosecution and punishment by the criminal courts is largely an irrelevancy. The real need is for a constructive means of ensuring that practical improvements are made and preventative measures adopted. Whatever the value of the threat of prosecution, the actual process of prosecution makes little direct contribution towards this end...We recommend that criminal proceedings should, as a matter of policy, be instituted only for infringements of a type where the imposition of exemplary punishment would be generally expected and supported by the public. We mean by this offences of a flagrant, wilful or reckless nature which either have or could have resulted in serious injury…”.2 However, that approach has long since passed. When serious harm occurs, it is commonplace to see prosecutions of even the most conscientious organisations.

Culpability All else being equal, organisations which are much less culpable should pay much smaller fines – if prosecuted at all.

However, with criminal regulatory offences in place, if harm occurs, the first question is, Why didn’t the company prevent it?

Cognitive bias is now well understood.

Unfortunately, that understanding is rarely applied in the criminal justice system.3 So, a system which failed to prevent harm risks being judged a bad system.

What might be viewed as a remote possibility before the event will afterwards be considered an incident or crime waiting to happen.

If people didn’t follow the required systems, it is assumed because the company did not train them, or lead them, or monitor them properly.

Organisations are expected to be able to overcome the everyday failings of people. If they do not, the organisation is not merely held responsible: it is judged to have committed a very serious crime.

The first, which is the principal legislative intent, is to properly fund, resource, audit and monitor preventative procedures.

Organisations should do this. It is unlikely however that organisations will ever be able to fully protect against human error.

The second is when things go wrong.

Expert advice will help avoid own goals, such as in relation to selfreporting and disclosure.

Beyond that, it will be necessary to properly investigate what happened and what went wrong, engaging experts where required, and to persuasively explain the organisation’s position.

With regulatory offences, however, damage limitation will sometimes be the best possible outcome, even for well-run organisations.

Conclusion For the criminal law to be fair and robust it should ensure that culpable persons are prosecuted, whether organisations and/or individuals, and that any punishment imposed is proportionate to that culpability.

The extension of the regulatory approach, however, will see more organisations pay highly punitive fines for harm or wrongdoing which they have limited ability to prevent. By one route or another, it may also result in fewer culpable individuals being prosecuted.

Tom McNeill, senior associate at BCL Solicitors -----------------1 UBS & Deutsche Bank were fined £160 million and £227 million respectively by the FCA for manipulation of LIBOR; Barclays Bank was fined £284.4 million by the FCA for manipulation of the currency exchange market (FOREX). Standard Chartered Bank was fined £102.2m by the FCA in relation to shortcomings in the bank’s AML controls relating to customer due diligence and ongoing monitoring.

2 Safety and Health at Work: Report of the Committee, 1970-72, Chairman Lord Robens, p.82.

3 The author discussed cognitive bias here: https://www.hsmsearch.com/Cognitive-biashealth-safety-investigations.

Risk management Organisations have two main routes to address these risks.

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